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The Defence of David Hicks

Major Mori and American Military Justice

 
Cover: October 2006October 2006Medium length read
 
After 60 emotionally supercharged minutes of Nigel Jamieson's dance-drama Honour Bound, a sparse Sunday-evening audience clapped politely and then settled into a stunned, exhausted silence. Then, a thirty-something with a rugby forward's physique, instantly recognisable by his US Marine Corps uniform, marched on to the stage. The audience began to buzz before breaking into loud applause. It was, as everyone knew, Major Michael Mori, back in Australia for one of his periodic visits on behalf of his client, the subject of Honour Bound, David Hicks.

While an interviewer shot questions personal and professional, Major Mori answered with the disarming charm that has made this mid-ranking military lawyer, though an obscure figure back home in the US, a folk hero to many in Australia. Mori talked, with wry self-deprecation, about dropping out of college at 18 and serving a tour as an ordinary Marine recruit, learning the discipline he had long lacked. Following graduation from Norwich University, a rigorous Vermont military college, he had re-enlisted in the corps and started his legal career when the Marines sent him to law school. After steady promotions to the position of chief prosecutor in Hawaii, his sense of justice led him to transfer to the Pentagon as a defence counsel in Guantánamo's newly formed military commissions. By late 2003, the major had become a military lawyer with just one client, Hicks, and found himself working not in a conventional court-martial, but instead in "show trials set up for political purposes". He was soon forced into a new, sometimes uncomfortable role as a critic "challenging the entire system because it was unfair".

When the mic was opened up to the audience, questions came rapid-fire. Many seemed acidly critical of America, but the major finessed them, treating each speaker with deference while reminding them that he is, of course, an American officer whose faith in his nation remains unshaken. But he did express strong opposition to the military commissions at Guantánamo. For four years, he said, Hicks had been trapped in a US political deadlock - and would remain there "until the Australian government asks them to send him home".

Throughout his hour on stage, the major courted his audience with references to cricket and rugby, drawing laughs with a wry remark about his client's history of drug addiction and terrorist training, saying, "Let's be frank. David made what even he would admit were some bad life-choices."

As the discussion drew to a close, one middle-aged woman seemed to sum up the surge of feeling the major had aroused in the audience: "You represent the America I always believed in, an America that seemed lost since September 11." The applause resounded, drowning out the obvious paradox that called out for explanation: here was an anti-American, anti-military audience of pacifists and peace activists enamoured of a man whose taut bearing and spotless uniform made him every inch a US Marine.

That August evening at the Sydney Opera House was just the start of the major's triumphal weeklong sweep across Australia before audiences that can only be called adoring. The next day, Monday, as well as dining with NSW Attorney-General Bob Debus and chatting with Sydney's Catholic primate, George Cardinal Pell, Mori also appeared, via videotape, on the ABC's Enough Rope, telling Andrew Denton that John Howard was seriously misinformed about his client: Hicks had, in fact, been tortured, and he was not guilty of anything akin to "serious offences".

On Tuesday, the vice-president of the NSW Law Society introduced Mori to a standing-room-only crowd of 400 on Philip Street, saying, "I expected this lectern to be awash with underwear."

Thursday saw the major in Canberra for meetings with government and Opposition MPs. Although Attorney-General Philip Ruddock was pointedly absent, he had already capitulated to the major's charisma by announcing that he would seek Hicks's return if substantive new charges were not laid quickly. That evening, Mori moved the capacity crowd of 500 at Australian National University, who emerged to describe him as "a hero, a role model, and someone who should run for US president".

On Friday, the major flew down to Hobart where, the Mercury reported, an "adoring crowd" of 720 packed a lecture hall at the University of Tasmania and responded to his criticisms of Canberra's handling of the Hicks case with "a thunderous standing ovation lasting about five minutes".

Crossing to Adelaide over the weekend, Mori told 500 protesters at a candlelight vigil that the Bush administration's new law for military commissions was "unfair", and that unless Canberra acted, "David will be stuck in Guantánamo for another two years." In darkness broken by flickering light, the crowd marched to the office of Foreign Minister Alexander Downer to present a 50,000-signature petition calling for Hicks's release.

*

In Major Mori these legions of admiring Australians seem to see a lone knight tilting against the windmills of power in Washington. In reality, however, Mori is but a loyal foot soldier in an army of military lawyers who are waging war on the Bush administration's adoption of torture and its rejection of the Geneva Conventions. What is at stake is a centuries-long tradition of independent military courts, formalised in the Geneva Conventions of 1948, which require "civilized" justice for captives, and a parallel document, the US Uniform Code of Military Justice of 1950, that meets this high standard. For the past half-century, these two foundational texts have allowed generations of military lawyers to pursue careers in the Judge Advocate General (JAG) corps within each of the four branches of the US military. Over the span of several military generations, these soldier-lawyers, known as JAGs, have developed a formidable esprit de corps and a deep ethical commitment to defending the rule of law in that most unlikely of places: the raging brutality of the battlefield.

Not only are most Australians likely unaware of this strong tradition of US military justice, but so apparently were the neo-conservative lawyers who came to Washington with the Bush administration in January 2001. Their ascent marked the culmination of a quarter-century of conservative revolt against America's humiliation in Vietnam, particularly against the liberal effort to restrain presidential power with laws such as the War Powers Act.

Funded by fabulously wealthy, deeply conservative donors, a nexus of new institutions rose on the American political landscape in the aftermath of Vietnam, including the most quietly influential of them all, the Federalist Society. Through years of seminars and meetings, the Federalists built chapters in most major law schools and a network of patronage that could carry an ambitious lawyer of even limited ability all the way from first-year law to a seat on the US Supreme Court bench.

Apart from strategically seating their allies in professorial chairs or on the federal bench, the Federalists also articulated a neo-conservative doctrine of overarching presidential power called the "New Paradigm". In times of war, the president should, these neo-cons argue, be able to set aside all domestic laws or international treaties to defend the nation, thus correcting what their patron, Vice President Cheney, has condemned as "the unwise compromises ... over the last 30 to 35 years" that have eroded "the powers ... of the president of the United States to do his job". More fundamentally, they argue that "the unitary executive" is the pre-eminent branch of government, thereby challenging the constitutional principle that the presidency is just one of three co-equal branches of the federal government. As John Yoo, an influential neo-con law professor, maintains, "the founders intended that wrongheaded or obsolete legislation and judicial decisions would checked by presidential action."

When the two planes crashed into the World Trade Center, a coterie of neo-con lawyers was well-placed to put these radical ideas into action: Alberto Gonzales, counsel to the president; John Yoo in the Justice Department; William Haynes, chief counsel to Defense Secretary Donald Rumsfeld; and, above all, David Addington, chief of staff to Vice President Cheney. In the months that followed, these neo-con lawyers would draft action memos justifying both the torture of detainees and the tapping of domestic telecommunications.

Inside Washington's beltway, the torture debate has thus been a battle over personal advancement and the professional agendas of rival legal factions: neo-con patronage appointees such as Alberto Gonzales and military professionals such as Major Mori. At a deeper ideological level, it is a contest of power versus justice - or, more particularly, US presidential power versus universal human rights. Viewed historically, it is a fight over fundamental principles reaching back nearly 400 years. These military lawyers, the JAGs, are the heirs of both the seventeenth-century English Civil War, which appointed the British Army's first Judge Advocate General and abolished torture, and the eighteenth-century American Revolution, which enshrined this same prohibition on coerced testimony in the US Constitution's Fifth Amendment. By contrast, the neo-cons are seeking to revive for the American presidency the sovereign prerogatives of the Tudor-Stuart monarchs: the power both to overturn laws and to order torture. When Australians listen to Major Mori appeal to ideals of justice and condemn the abuse of presidential power, they are hearing the distant gunfire from a far-off ideological and institutional war.

Indeed, few Americans and even fewer Australians understand how resolutely these military lawyers have fought the Bush administration, becoming arguably the single most effective bulwark of opposition to its policies of tacit torture, endless incarceration and drumhead justice. While the press publishes blazing headlines and the courts hand down widely circulated decisions, these soldier-lawyers have worked quietly, leaking documents, lobbying Congress and fighting closed-door bureaucratic battles. At every major turn in this five-year debate about torture, the military's top JAGs have spoken out with stunning effectiveness, checking the Bush administration and sparking opposition to its policies in both Congress and the courts.

*

This bitter debate began right after September 11, when the Bush administration jettisoned what can be seen as Washington's comfortable Cold War contradiction: public advocacy of universal human rights and a tacit, arm's-length tolerance of torture by the Central Intelligence Agency and its foreign allies. Instead, in its pursuit of Al Qaeda, the Bush White House began issuing formal, albeit top-secret, orders for extreme interrogation by both the military and the CIA.

From the start, these controversial directives were carefully cloaked in three legal arguments derived from the neo-cons' "New Paradigm". Arguing, in essence, that the president is above the law, administration lawyers like Alberto Gonzales and David Addington stated that Bush could order torture, or ignore the Geneva Conventions. Next, in a search for legal loopholes, Assistant Attorney General Jay Bybee, now a federal judge, found grounds (in his famous August 2002 memo) for exculpating any CIA interrogators who would commit torture but later claim their intention was information and not pain. And, as the administration began confining terror suspects at Guantánamo in January 2002, Justice Department lawyer John Yoo, on leave from the University of California, argued that this base was not US territory and was thus beyond the writ of US courts.

With White House approval, the CIA quickly stitched together a clandestine network of allied security services - according to a report by the Council of Europe's Committee on Legal Affairs and Human Rights, a veritable "spider's web spun across the globe" of prisons, planes, and operatives - that allowed it to seize and torture suspects, successfully and secretly, anywhere in the world. Inside its "black sites", stretching from Poland to Thailand, the CIA used enhanced psychological torture techniques. When blatant physical methods were needed, the agency dispatched detainees to nations notorious for torture, including Morocco, Egypt, Syria and, the most brutal of all, Uzbekistan. While several dozen high-value detainees were held in the CIA black sites, over 700 - most of them brought in by bounty hunters from Afghanistan and Pakistan - began arriving in early 2002 at the old US Navy base in Guantánamo Bay, in eastern Cuba.

It was Defense Secretary Rumsfeld who crafted the conditions that transformed the military prison at Guantánamo Bay into an international symbol of systematic cruelty. In late 2002, Rumsfeld approved new techniques for Guantánamo's interrogators, including stress positions, protracted standing, hypothermia and sleep deprivation. In a marginal note to this memo, Rumsfeld, referring to the designer standing-desk in his Pentagon office, wrote by hand: "However, I stand for 8-10 hours a day. Why is standing limited to 4 hours?"

Under these orders, their first target, Mohamed al-Kahtani, a 26-year-old Saudi known as "the twentieth hijacker", was subjected to interrogations that ran for 20 hours, intensified by disrupted sleep, bitter cold, and sexual humiliation. Learning of these extreme practices, Navy lawyers at Guantánamo objected that they might constitute torture. The Navy's general counsel, Alberto Mora, took up their concerns, advising Rumsfeld's chief counsel, William Haynes, a neo-con Bush appointee, that some techniques authorised by the secretary "could rise to the level of torture" and his hand-written notation could be seen "as a coded message, a written nod-and-wink to interrogators to the effect that they should not feel bound by the limits set in the memo". Confronted with such forceful objections from the military lawyers, in March 2003 Rumsfeld adopted a deceptive "two-track" policy, publicly abjuring abuse while issuing top-secret orders for torture at Guantánamo.

When blatant violation of the Geneva Conventions thus became Pentagon policy, a delegation of very senior, very anonymous "uniformed military lawyers" came to New York for an unofficial call on Scott Horton, then head of the New York City Bar Association's International Human Rights Committee. Speaking off the record, these JAGs expressed grave concern that new Pentagon procedures, detailed in classified memos, were barring military lawyers from their usual "watchdog role in the interrogation facilities" and would soon "lead to the abuse of detainees held in the Global War on Terror". They urged Horton's committee "to challenge the Bush administration about its standards for detentions and interrogation". Suddenly, mysteriously, these same classified memos began leaking out of the Pentagon into the press, first in a trickle and then as a torrent of documents that Joshua Dratel, a New York attorney on David Hicks's defence team, compiled quickly into a thousand-page book entitled The Torture Papers.

In the aftermath of this Pentagon infighting, David Hicks was one of the first to learn the meaning of the opaque orders in Rumsfeld's memos. In July 2003, just as his indictment before the military commission was about to begin, Hicks was isolated inside a windowless cell for 244 days and nights. By the time he first met Major Mori, in December 2003, Hicks was suffering badly. "The food he was getting was not adequate," Mori recalled. "He was being held in isolation; he wasn't being given access to sunlight." Meeting Hicks for the first time a few weeks later in his gloomy Guantánamo cell, Joshua Dratel, his civilian attorney, found Hicks under such stress that his grip on reality was, putting it mildly, tenuous.

Apart from inhumane interrogation, Rumsfeld's most controversial innovation at Guantánamo was a compromised form of military justice that did not become fully visible until the congressional debates of 2005. These judicial problems had begun back in November 2001 when the neo-con attorney David Addington, known as "Cheney's hit man", sidestepped the Pentagon's career military lawyers and placed a draft order creating the new military commissions directly on the president's desk. Bush duly signed. Not only did this order establish a new presidential court outside the regular chain of command, it also dispensed with the usual "principles of law and rules of evidence", thus stripping defendants of any rights. "There's no better example of a rigged trial," Major Mori later told the Australian. "When it comes to sport," he said, "Australians would not allow the opposing team to write the rules, pick the referees, pick the players of your team and control the decisions."

In August 2004, David Hicks finally had his first hearing before the military commission, on ill-defined conspiracy charges. Of the hundreds of detainees at Guantánamo, just ten were indicted, and of these ten Hicks was the first selected for trial before the base's commissions - a coincidence that gave Major Mori pause. If this really were just a "show trial", then his client's white skin meant that he might be being targeted for ritual punishment on this bizarre legal stage.

*

As Hicks's legal team assembled at Guantánamo in early 2004, it seemed rife with failings: woefully inadequate staffing, primitive research resources and various unresolved conflicts. Major Mori was a military careerist with just one client; Joshua Dratel, though working pro bono, was still a New York lawyer with a fast-track career. Dratel was a Harvard Law School graduate; Mori had attended Western New England Law School, at the antipodes of both the same state and the US legal profession. Dratel had a brilliant grasp of courtroom procedure and anti-terrorist law from his defence of an Al Qaeda suspect in the 1998 East Africa bombings; Mori, by his own admission, knew nothing of the international law central to his client's case.

Then there were the cultural conflicts. While at first Major Mori was put off by Hicks's Aussie accent and laconic manner, he soon bonded with him as a fellow dropout, quickly developing a fondness for Australians and a fascination with Australia. Dratel, by contrast, was a high-octane trial lawyer who sometimes seemed impatient with his Australian colleagues. When Adelaide solicitor Stephen Kenny, a well-respected advocate for Aboriginal causes, persisted in a confrontational stance toward Canberra over Hicks's release, Dratel supported his sacking in early 2005, saying, "I just don't see the stamping of the feet and the complaining as being a very productive strategy." Less publicly, Dratel would also criticise the work of the team's undergraduate intern, 23-year-old Melbourne University law student Sarah Finnin, in sharply worded emails. As the first hearings approached in August, the Hicks team was heading into trial before a hostile court with one well-briefed star backed by insufficient staffing and an under-researched case.

When the military commission first convened at Guantánamo in August 2004, Dratel opened his case with the sort of high drama usually only seen in fictional courtrooms on television. In a withering examination of the five-man panel, Dratel stripped away any illusion of the court's impartiality by exposing "a close personal relationship" between its presiding officer, Colonel Peter E Brownback III, and the Pentagon's newly designated "appointing authority", Major General John D Altenburg Jr (ret.). With Major Mori sitting silently at his side, Dratel fired a succession of questions that forced Colonel Brownback to admit that he had given the "roast" at the general's retirement, a clear sign of a strong personal relationship. "How would you answer people who might say that you were chosen for this post not for your qualifications but for your close relationship with Mr Altenburg?" Dratel pointedly asked the court's presiding officer. Stunned by the revelation, a legal observer from Human Rights First called this "a huge conflict ... in some ways like the prosecutor in a criminal case and the lead juror being best of friends".

Though Dratel was brilliant during this verbal duelling, the Hicks legal team was still raw to the point of dysfunction. As Dratel slashed away at the court, Major Mori sat silent throughout almost all of the proceedings, an ill-advised strategy for building rapport with the uniformed officers on this military panel. Indeed, the defence table presented poorly before the court, with the tiny, emaciated defendant, Hicks, sandwiched between two larger figures, the massive Major Mori and the voluble Dratel.

During the second day of hearings in August, the commission also heard arguments for Salim Ahmed Hamdan, who shared star billing in the opening trials with Hicks. Like Hicks, Hamdan was more foot soldier than general. As an unemployed Yemeni national, he had gone to work in Afghanistan as a chauffeur for Osama bin Laden. Appearing for Hamdan, Lieutenant Commander Charles D Swift of the US Navy launched a parallel challenge to the panel's impartiality, asking Colonel Brownback, "Did you think these commissions were lawful when you were appointed?" After a long pause, the colonel admitted that he was not certain if they were, in fact, lawful.

When the Hicks case resumed in early November, the appointing authority, Major General Altenburg, had responded to Dratel's protests by removing two members of the five-man panel. Though at first glance this ruling seemed a win for the defence, it was at best a Pyrrhic victory. As an observer from Human Rights First explained, "in reducing the size of the panels for Hicks and Hamdan ... Altenburg effectively halved the prosecutor's burden of proof." Instead of having to persuade four out of five panellists of Hicks's guilt, prosecutors now faced the far easier task of having to convince just two out of three. And, as Dratel himself had observed, the reduction in the panel's size would allow his antagonist, Colonel Brownback, "to dominate the legal issues and legal questions and legal decisions".

But in the two-month hiatus between hearings, the Hicks defence team had polished its act, showing a striking improvement in trial teamwork. Opening for the defence on 2 November, Joshua Dratel argued with his usual skill that the commission was "fundamentally flawed because it only authorised military commission trials for non-citizens", a violation of the Geneva Conventions.

After Dratel finished scoring points, Major Mori rose to argue that Hicks, though captured as a combatant, should have been tried as a civilian, with full legal rights, under the Fourth Geneva Convention. When Colonel Brownback insisted that Hicks was being properly tried under the Third Convention, the major, now well briefed on international law by Melbourne University law professor Tim McCormack, held his own. As Mori chipped away at the presiding officer's arguments, Colonel Brownback said, with a condescension revealing real hostility towards the defence, "I'm looking at the Third Convention, Article 3, sunshine."

Six days later, on 8 November 2004, Hamdan's counsel, Lieutenant Commander Swift - who was also facing a three-man panel - was midway through a challenge to the court's new composition when a soldier entered silently and handed Colonel Brownback a note. The colonel announced blandly, without explanation, "We are going to take an indefinite recess." As the panel hurried out the door, the news rippled across the courtroom: a federal court had stopped the commissions.

Indeed, 2000 kilometres away in Washington, US District Court Judge James Robertson had ruled that "the president is not a tribunal", and found that Bush had no right to suspend the Geneva Conventions. Significantly, the judge stated that the commissions were "fatally flawed" because they were "contrary to or inconsistent" with the Uniform Code of Military Justice, and thus all hearings at Guantánamo were to be suspended until they met the standards of a conventional court martial.

This sharply worded decision foreshadowed the opposition to Bush's detainee policies that would reach a critical mass by mid-2005. Starting in the spring of that year, the US Congress, courts and national press joined in a chorus of criticism about conditions at Guantánamo Bay. "Shut it down. Just shut it down," wrote New York Times columnist Thomas L Friedman with uncommon boldness. "Just shut it down and then plow it under. It has become worse than an embarrassment. I am convinced that more Americans are dying and will die if we keep the Gitmo prison open than if we shut it down."

The controversy moved to Congress, where the Senate Judiciary Committee heard Lieutenant Commander Swift recall the first meeting with his client, Salim Ahmed Hamdan. The Yemeni detainee had "already been in solitary confinement for ... 45 days ... in a windowless room" and was showing signs of "extreme mental stress". Backed by documents, Swift also showed that due process before Guantánamo's military commissions was being bent to a predetermined outcome.

Little more than a month later, the Pentagon's military lawyers leaked several damning emails about the commissions to the Australian Broadcasting Commission's Washington correspondent, Leah Sales, that confirmed Swift's criticisms. A year earlier, one prosecutor, Captain John Carr, had complained that their office was preparing to "prosecute fairly low-level accused in a process that appears to be rigged". Another prosecutor, Major Robert Preston, had written that proceeding with trials would be "a severe threat to the reputation of the military justice system and even a fraud on the American people". But their superior, Colonel Frederick L Borch, had dismissed these complaints as "monstrous lies", and no corrective action was taken. To protest this rigging, three career military prosecutors - Carr, Preston and Captain Carrie Wolf - requested reassignment to other duties, something Prime Minister Howard brushed off as inconsequential.

Down another Senate corridor that summer, three Republican veterans on the Senate Armed Services Committee - Lindsey Graham, John McCain and John Warner - finally broke ranks with the Bush administration over abusive interrogation. Rising on the Senate floor, McCain, a former Navy aviator tortured in Hanoi, proposed an amendment to the defence appropriation banning "cruel, inhumane and degrading" treatment of all detainees. When a fellow Republican, Senator Jeff Sessions, opposed the motion, saying the detainees were "terrorists", McCain insisted that the issue was "not about who they are. It's about who we are".

Despite a threatened White House veto and a fierce debate, the Senate voted 90 to 9 to ban "cruel, inhuman or degrading treatment" of anyone in US custody - an unprecedented repudiation of Bush's interrogation policy. Although a Christmas Eve compromise allowed approval of this law, the Detainee Treatment Act of 2005, the battle between Bush and McCain was just beginning.

*

On 3 January of this year, the US Department of Justice notified federal judges that it would seek the immediate dismissal of all 160 habeas corpus cases filed by Guantánamo detainees. A week later, the US Solicitor General, citing the same law, told the Supreme Court it no longer had jurisdiction over Guantánamo and petitioned the justices, unsuccessfully, to dismiss a case that had the makings of a historic judgment, Hamdan v Rumsfeld.

And on 24 January, the US Army changed its standing orders to permit executions outside Fort Leavenworth, Kansas, thus keeping any Guantánamo detainees sentenced to death beyond the jurisdiction of US courts. Justly concerned, Major Mori warned that his client could be executed, but the Howard government insists that it has assurances from Washington that David Hicks will not face a firing squad.

Then, as so often happens in America, all these political tensions reached a dramatic denouement before the US Supreme Court. In hearing a government appeal of Judge Robertson's decision in Hamdan v Rumsfeld, the justices reminded the president that he is not above the law. Writing for the majority in a five-three decision, Justice John Paul Stevens ruled on 29 June that the US is bound by the Geneva Conventions that barred, under Common Article 3, all "humiliating and degrading treatment" of detainees and required their prosecution with "all the judicial guarantees which are recognized as indispensable by civilized peoples".

After this stunning rebuke, Bush offered concessions to placate critics, suddenly announcing that he would observe the Geneva Conventions' ban on "humiliating and degrading treatment". Yet he simultaneously launched a campaign to protect his prerogatives of coercive interrogation and drumhead justice, and was soon surprised to find himself fighting the military's top lawyers.

The first skirmish in this battle erupted when the administration nominated William Haynes, the Pentagon's neo-con legal counsel and top torture advocate, to the Federal Court of Appeal, prompting criticism from 20 retired senior military figures, among them six top Judge Advocate Generals. Haynes, they said, had framed policies that "have fostered animosity toward the United States, undermined rather than enhanced our intelligence-gathering efforts, and added significantly to the risks facing our troops serving around the world".

Then, in a dramatic bid to legalise his policies, on 6 September Bush told a hand-picked White House audience of 9/11 victims' families that he was transferring 14 top Al Qaeda captives, including Khalid Sheikh Mohammed, from secret CIA prisons to Guantánamo Bay. There, he said, they would be tried by the military commissions under new guidelines that he would submit to Congress - allowing hearsay, coerced testimony and concealment of classified evidence from the accused. In this same legislation, Bush proposed to set aside the Geneva Conventions' requirement under Common Article 3 for humane treatment of captives, and to protect CIA interrogators by making this lesser standard retrospective all the way back to 9/11.

Republican leaders were determined to pass Bush's bill verbatim, but were challenged by the military's senior legal officers. Appearing before a hostile Armed Services Committee on 7 September of this year, the four top Judge Advocate Generals were simultaneously deferential to the president's proposal and determined that the Geneva Conventions remain the basis of detainee treatment. The most outspoken, Brigadier General James C Walker, drew upon his quarter-century of service as a Marine JAG to blast Bush's legislation, saying, "I'm not aware of any situation in the world where there is a system of jurisprudence that is recognised by civilised people where an individual can be tried and convicted without seeing the evidence against him." And, he added, "I don't think the United States needs to become the first in that scenario."

A week later, the Senate Armed Services Committee, led by Warner and McCain, defied the president by voting down his proposed legislation, sounding a declaration of war on Capitol Hill. Determined to defend the CIA's capacity to torture, the administration marshalled its forces for a full-bore assault. Firing the first shot on 13 September, William Haynes - realising the key blocking role of the Judge Advocate Generals - summoned all four of his antagonists to a closed-door meeting. There, he handed them a prepared statement fully supporting Bush's bill. Confronted with the very provisions they had fought for five years, the military lawyers balked at signing this virtual declaration of surrender. The Navy's top JAG, Rear Admiral Bruce MacDonald, said bluntly that he could not sign, since the Geneva Conventions' Common Article 3 barring "outrages on personal dignity" should remain the standard for detainee trial and treatment, not the narrower provisions in the Bush bill.

After hours of skirmishing, Haynes finally extracted their signatures on a revised letter, striking for its terse brevity ("We do not object to section 6 of the administration's proposal which would clarify the obligations of the United States"): a narrowly circumscribed concession that the White House trumpeted the next day as a ringing endorsement. Then CIA director Michael Hayden proclaimed his support for the Bush legislation to protect his interrogators. Finally, on 14 September, Bush and Cheney marched through the halls of Congress, press-ganging Republican leaders to enlist in the battle for their bill.

Despite this barrage of heavy artillery, dissident Republican senators Graham, McCain and Warner held their ground. Charging that the military lawyers had signed this statement of support under unprecedented pressure, they stated that they would instead abide by the officers' public testimony. Privately, McCain sent word around Congress that he would not surrender to the president's pressure, even if it cost him the presidency in 2008.

In this fight, McCain received reinforcements from an unlikely ally. After years of loyal service to the president, Colin Powell, a career officer who had been Bush's first Secretary of State, finally broke ranks to write to McCain that any tampering with the Geneva Conventions would cost America "the moral basis of our fight against terrorism" and make it impossible "to remind our soldiers of our moral obligations with respect to those in our custody".

This raging debate, ripping Washington apart at its partisan seams, has condemned lesser detainees such as David Hicks to continued uncertainty, seemingly without end. With Washington at a standstill over the issue, and future legal challenges a near guarantee should Bush's legislation pass, Major Michael Mori fears his client faces years of more solitary confinement before trial. "It does perpetuate the black hole that David has been sitting in for four-and-a-half years," says Mori. "David's nightmare won't end until the Australian government decides to stand up for one of its own citizens." And since March this year, Hicks has again been confined in a windowless cement cell, without sunlight or human contact. To break this soul-crushing isolation, he is allowed the emotional sustenance of just one censored book a week, usually a Dickens novel. Unsurprisingly, the major is concerned that his client might crack.

Americans and their Australian allies now confront a difficult decision with the most profound legal and moral implications. "If the administration gets through [their bill] dealing with commissions," Mori warns, "it will not provide ... basic protections" for detainees in this or future wars. The Bush White House, he concludes, has "departed so far ... from our basic values that ... saying ‘give someone a fair trial' is some novel or radical idea."

If Americans support Bush's bill and the policies it represents, then they should be mindful of a sober warning from Alberto Mora, the US Navy's general counsel who fought psychological torture at Guantánamo. "Cruelty disfigures our national character," he said. "Where cruelty exists, law does not."

About the author Alfred W McCoy