Remember Cully Stimson? Cully was the assistant secretary of defense for detainee affairs until he began his attack on the lawyers who have volunteered to represent the Guantánamo detainees without charge. Cully concocted a desperate plan of exerting financial pressure against the Guantánamo lawyers by suggesting that the corporate CEO's that use these lawyers should force the attorneys to choose between their corporate clients and their Guantánamo pro bono work, at the same time insinuating that the firms were being paid for their work by terrorists. Cully, who had done his homework, went on a government radio show with the list of law firms (mine wasn't included) and talked about how much fun it would be when the corporate clients found out about the pro bono work their law firms were involved in and started questioning the attorneys. This of course backfired on Cully. Lawyers in this country have a long proud history of taking on the pro bono representation of both popular and unpopular causes and the corporations Cully was hoping would balk at the lawyers' pro bono work stood by their attorneys and decried Cully and his disgraceful remarks. Alas, Cully was forced to resign and spend more time with his family.
Barely two months have passed since the Cully episode, but we know how quickly these people forget the lessons of the past. I guess we should not be too surprised by Cully Part 2, but here it is: the chief prosecutor for the Guantánamo military commissions, Colonel Moe Davis, has launched an assault on Major Dan Mori the marine attorney who was assigned to represent Australian prisoner David Hicks. In the legal biz we would say that the Colonel is trying to intimidate Major Mori. Listening to Colonel Moe made me wonder again whether or not they teach legal ethics in the military, but in reading about Major Mori I discovered that he too got his law degree while in the Marines and the Major clearly understands his ethical obligations very well (so we can't blame military training on that one) But what is going on here? I mean first we had Cully the attorney who was assistant secretary of defense for detainee affairs and who apparently thought it was quite proper (even fun) to try to exert financial pressure on opposing counsel and now we have the chief prosecutor of the military commissions (also an attorney) trying to intimidate the military attorney who has been assigned to represent the only person charged under the Military Commissions Act... my my.
In case you don't know about David Hicks: he is an Australian who has been held at Guantánamo for more than five years. Hicks, the only prisoner at Guantánamo that the government has filed charges against under the new Military Commissions Act (MCA) was, according to the military, originally charged with conspiracy to commit the offenses of attacking civilians and civilian objects, murder, destruction of property and terrorism and faced the additional charges of attempted murder by an "unprivileged belligerent" and aiding the enemy. But as of March 1st, 2007 all of the charges except a lesser charge of "providing material support to terrorism" have been dropped because even the military had to admit there was no evidence against Hicks for any of the other charges. If you are wondering what the remaining charge means you aren't alone. No one really knows. The charge didn't even exist for a non-U.S. citizen at the time Hicks was arrested. However, because the government made clear that Hicks was going to be charged with something (anything, as it turned out), he was entitled to a military attorney- and that is where Major Mori comes in. As I mentioned, Mori is a career navy/marine attorney who has numerous awards and decorations including the Navy Commendation Medal, the Navy and Marine Corp Achievement Medal, the Good Conduct Medal and other service and unit awards. When Mori was assigned to represent Hicks, he undertook the job as he was trained: professionally and seriously. Even the military had highlighted Major Mori's work as proof of the fairness of the much-criticized US military commission system.
As part of Mori's job representing David Hicks he has gone to Australia and Afghanistan several times to interview witnesses and obtain evidence (that must have shocked the Colonel, as I am sure he thought the prisoners weren't allowed any evidence... but just because they cannot see the military's secret evidence doesn't mean they can't bring in their own evidence). On Mori's trips to Australia, he has done what any excellent defense attorney would do, he has given lectures explaining to people the truth behind the military commissions where Hicks is expected to be tried. Many of you know what happens to people when they start to get educated about Guantánamo, people start asking questions and eventually they get angry about what they discover the U.S. is and has been doing under the guise of freedom, democracy and counter-terrorism. The fact that Australia had one of the few governments left who still believed that Guantánamo was helping to make the world safe from terrorists made Major Mori's lectures particularly threatening to the powers that be here in the U.S., but alas, Colonel Moe, it is too late, the Australians too are now learning the ugly truth and they don't like it either.
So how does Moe fit in with all of this? Seems that the Colonel (who happens to be in charge of prosecuting the military commissions) thought that the timing was just about right to suggest that Major Dan Mori should be brought up on charges for his conduct in defending Hicks and for speaking out about the Bush military commissions. As I mentioned, Major Mori has been representing Hicks for several years now and all along the way he has criticized the system that has been set up to hear Hicks's case. Mori has been doing the job he was assigned to do and he was doing an excellent job at it. In fact, Mori has a sincere fear that this kangaroo system (no offense Aussies) might be used against our own military men and women if captured by hostile countries. In all fairness to the Colonel, Moe probably isn't used to people around him doing their job competently, and Major Mori sure has the potential to make Moe look especially bad in the Hicks commission hearing.
But Moe isn't your usual schlep (like Cully). You see the Colonel's timing couldn't have been more suspicious. Moe made his stunning announcement that charges should be filed against Major Mori just a few days after it became clear that the only charge Hicks was actually going to be charged with was the one charge that wasn't even a crime at the time Hicks was arrested. (Doesn't it sound like the Colonel is having a temper tantrum over Hicks's (and Mori's) victory in getting all of the serious charges thrown out?) Anyway, the clock is now running for Hicks's commission hearing and the colonel must know he is in for a long, hard slog with the military's ever crumbling case against Hicks. This must be particularly embarrassing for Moe, because Hicks's commission hearing was set to go first because it is their best case... Well, let us just say that things couldn't get much worse for the Colonel, so it was time for him to go on the attack and do what those in the Bush camp do best... divert attention.
One thing is very clear about the Colonel's attacks on Major Mori and that is that the Colonel planned his attack carefully, because a careful plan is important to Moe. When it comes to the press, Moe believes it is important to first develop a "comprehensive strategy." Moe believes that it is important to "influence public opinion consistent with the nation's interest in the military." How do I know all this? The Colonel put his thoughts into writing in a really interesting article that set up his "six point plan" for effectively engaging the military in public opinion. Moe's plan calls for the military to be a bit more aggressive in how it handles the media. It's a plan that calls for the military to go on the offensive and "define" a controversy before it "erupts." You have to give the Colonel credit for foresight, he knew that this was definitely one of those controversies that was ripe for eruption: not only because all of the serious charges against Hicks were dropped; but also because the only charge left against Hicks was something that wasn't even against the law when Hicks was arrested...ouch. Couple that with the increased awareness by the Australian people about the real story behind Hicks and Guantánamo, and you have a bonafide controversy waiting to erupt.
So Moe has stepped up to the plate in hopes to "define" for us this controversy before the real controversy over Hicks, Guantánamo and the military commissions takes hold in the media. With his six point plan before him Moe has entered center stage: (1) assess the likely impact of your decision and weigh the potential consequences: This was of course the tricky one for Moe. By accusing Major Mori of misconduct and threatening Mori with potential military charges, Moe (a smart guy) must have known that the likely impact of his decision would be to threaten the date of Hicks military commission. Major Mori will now have to determine if the Colonel's threat puts him in a conflict with his client. Even if it is only a potential conflict, Mori will have to discuss it with Hicks and they will have to decide if the cloud hanging over Mori will be a distraction to Hicks's case. If Mori is forced to withdraw, Hicks will be forced to obtain new counsel. It is not easy to replace an attorney with almost three years knowledge of your case and Hicks will need time to bring a new attorney up to speed. Of course, the consequences of all of this does not hurt the Colonel one bit, Moe must know that the military has a lousy case against Hicks so they are in no hurry to try him. In fact, the best thing Moe and crew can hope for is to have the commission hearing postponed forever... so that the rest of the world doesn't see just how lousy the case is. If Hicks has to ask for a continuation because of the threat against his lawyer, it also gives the Colonel the opportunity to wave his finger in the air and complain about how it is the detainees who are afraid of trial. Moe has even been quoted as saying something to the effect that our Guantánamo clients are "like Dracula" "afraid to come out of their caves into the daylight to face charges"... that offensive statement is even more incredible given the fact that it is the military that has the job of bringing charges against the prisoners at Guantánamo. Certainly Moe could not be suggesting that the detainees were somehow avoiding service of process by staying in their cages at Guantanamo Bay? I mean if the military can get into their cages to torture the detainees and desecrate their Korans, you would think they could also find a way to hand them the papers telling them why they are being held.... Well anyway, I feel confident that Moe has thought long and hard about the impact of his statement against Major Mori and weighed the potential consequences and figured he had nothing to lose.
Now back to Moe's six point plan. (2) Memorialize the rationale for a decision. This one made me laugh out loud. I guess the lawyer in him just couldn't stop him from suggesting that everyone put these "strategic plans" in writing. FOIA requests anyone? (3)Use the resources available to monitor the environment. Well Moe I hope your people are busy reading this and all the other articles uncovering your conniving.... (4) Consider a response plan. We are all waiting with baited breath for this one. Will Moe say it wasn't really a threat he made against Major Mori? Or perhaps Moe will claim that he never expected his threat to charge Hicks's attorney with military misconduct would delay Hicks's commission hearing (that brings us back to the ethics classes that Moe and Cully apparently missed). (5) Take the offensive. I think I can guess where Moe will go with this one. My guess is that he will stick to his guns and go down with the ship (so to speak). The colonel will talk about how it was his duty to report what Major Mori has been saying openly for several years and that Moe had to make the threats against Major Mori right now, that somehow he couldn't wait until after the commission hearing was completed because... because why? (Because then he would have to go ahead with Hicks' hearing?) And finally, (6) educate leaders on the art of public and media relations. Good job Moe. By the way, did you teach Cully, too?