Is Colonel Davis Another Cully Stimson?

Colonel Morris Davis, lead government prosecutor for the Guantanamo military commissions, was sharply critical of one of the attorneys representing Guantanamo detainees this past weekend. As reported yesterday in the International Herald Tribune:

The prosecutor, Colonel Morris Davis, said that the lawyer, Major Michael Mori of the U.S. Marine Corps, should not be running about Australia making public appearances in uniform on behalf of his client, David Hicks, and that Mori faced possible prosecution for some of his remarks.

"I don't know what Major Mori's plans are right now, but if he wants to come back home and represent his client, that would be helpful," Davis said in an article published Saturday by The Australian, a daily newspaper in Sydney.

"Certainly in the U.S. it would not be tolerated having a U.S. marine in uniform actively inserting himself into the political process," Davis said. "It is very disappointing to see that happening in Australia, and if that was any of my prosecutors, they would be held accountable."

He added that it would be up to the Marine Corps to decide whether Mori had violated Article 88 of the U.S. Uniform Code of Military Justice, which makes it a crime for a military officer to use "contemptuous words" about the president, vice president, secretary of defense and other high-ranking officials.

Major Mori did not take the criticism well, suggesting Colonel Davis was seeking to intimidate him and compromise his and others' defense of detainees. According to the report, Mori also compared Davis' comments to the now-infamous remarks of former Pentagon official Cully Stimson, who made comments seeking to discourage the private representation of Gitmo detainees. (See here for a chain the VC's posts on the Stimson controversy.)

Based upon this report, Col. Davis' comments are not remotely comparable to those made by Stimson. Davis did not challenge the fact of representation, nor did he suggest that Mori or anyone else should suffer consequences for representing detainees. Rather, he criticized that manner in which Mori is representing his clients. Moreover, Davis is not challenging Mori's legal advocacy on behalf of detainees, but Mori's out-of-court conduct, particularly various political comments Mori has allegedly made overseas. Such criticism is not tantamount to lawyer intimidation, nor does it compromise any detainee's defense. At most, it seems that Davis would like Mori to spend more time preparing his defenses in court, and less time courting international public opinion.

Colonel Davis Versus Cully Stimson - Continued:

Cully Stimson provoked legitimate outrage because he sought to encourage sanctions against private attorneys for the mere fact they represented military detainees. His remarks were contemptible because they struck at the principles upon which the American justice system depends. Colonel Davis, on the other hand, criticized a military officer (in a different service) who is serving as a detainee's defense attorney for specific conduct — public statements to the Australian press about the U.S. government's conduct. Regardless of whether Col. Davis' criticisms of Major Michael Mori are correct on the merits, his remarks are not comparable to those of Cully Stimson.

As the comments to my last post indicate, some disagree. Mark Kleiman is outraged by Colonel Davis' comments, likening the Gitmo prosecutor's remarks to Stalinist persecution of political dissidents.

Back in the Stalinist days of the Soviet Union, someone could be held in prison without charges for five years, tortured, and then charged under a law that hadn't even been passed when he was picked up. If he ever got a trial at all and his defense attorney, in the course of defending him, dared to criticize the Party Secretary or the Defense Minister, the prosecutor could charge the defense attorney with "using contemptuous language toward high officials," a charge for which the defense attorney could be sent to prison.

Aren't you glad we don't live in such a country?

Oh, wait ...

I think the comparison is more than a bit overwrought.

Major Mori is not a private defense attorney, or even a public defender. He is a military officer. As such, he is bound by the military's code of conduct, whether or not he's representing a detainee or anyone else. Thus, he does not have the same freedom to fly around the world giving press conferences and stirring up political opposition to the prosecution of his client as do private attorneys — but this was true before he started representing alleged enemy combatant David Hicks. The limitations on what Major Mori can say are a consequence of his being a military officer, not his participation in this case. Defense attorneys remain perfectly free to criticize their government and public officials without fear of government retribution. I agree with Kleiman that military commissions are less hospitable to defendants than civil courts, and I am willing to believe that the charges against David Hicks may be overstated, but that doesn't make Col. Davis' recent comments tantamount to Stalinist persecution.

While I am willing to give Col. Davis a clean bill of health for his latest remarks, it appears Davis said some things last year that may have put him in Cully Stimson territory. As reported by Tony Mauro in the Legal Times last March, at a press conference in Guantanamo, Davis said it was "ironic" that the same law firms that represent corporations with large defense contracts were also doing pro bono work for detainees.

The nearly united front among the nation's legal elite against the White House has not gone unnoticed by the administration. In remarks at a press conference at Guantanamo Bay Naval Base earlier this month, the Defense Department's chief prosecutor for the military commissions there, Air Force Colonel Moe Davis, said it was "ironic" that big law firms representing large defense contractors such as Boeing Corp. allow their lawyers to represent Guantanamo detainees pro bono.

Miami lawyer Neal Sonnett, the American Bar Association's observer in Guantanamo, said when he heard the comment he took immediate exception, saying at a press conference that if it was meant to intimidate law firms, "it was beneath Colonel Davis' rank and status."

Sonnett, a former president of the National Association of Criminal Defense Lawyers, added, "These lawyers and their firms are true patriots."

Some who heard Davis' remarks thought he was referring specifically to Perkins Coie, the Seattle firm that has represented Hamdan from the beginning of his challenge to his detention in 2004. Perkins Coie is one of several law firms employed by Boeing, and one of the firm's lawyers will be at the counsel table when Georgetown University Law Center professor Neal Katyal argues Hamdan's case before the Court.

"If it was directed at us, it was out of line," said Perkins Coie partner Harry Schneider Jr., who has taken the lead in the firm's representation of Hamdan. Schneider said the firm has never heard negative feedback from any client about its representation of Hamdan.

Obviously there may be more to what Davis said last year, and it would be important to judge his remarks in context. (Stimson's comments, it should be noted, acutally looked worse when placed in their full in context.) Nonetheless, it seems that Col. Davis may have pulled a Cully Stimson before Cully Stimson did. If so, these earlier remarks — rather than his recent comments — are what is worthy of rebuke.

"The Vindication of Major Mori":

David Luban has an interesting post at Balkinization on the plea bargain of David Hicks and the controversial defense strategy of Major Michael Mori.

This outcome seems like poetic justice, because the result spectacularly vindicates Maj. Mori's decision to go to Australia to try to arouse political indignation about Hicks's imprisonment -- and Colonel Davis had threatened to press charges against Mori for violating a military-law prohibition on speaking disrespectfully of high U.S. government officials. Mori didn't back down, and we now see that his tactical decision to focus on political sentiment in Australia was exactly the right one for his client.

For more commentary from various perspectives on the Hicks plea bargain and sentence, see the AIDP blog.

David Hicks Can't Sell Detention Story:

One-time Gitmo detainee David Hicks is back home in Australia, where he had hoped to sell his story about meeting Osama bin Laden and his eventual capture and detention by the U.S. military. No dice. Although the provision in his plea deal not to sell his story is unenforceable in Australia, the Australian Attorney General says such a sale is barred under Aussie law, according to this press report.

Ruddock said a separate Australian federal law against criminals profiting from crime through media deals will stop the 31-year-old former kangaroo skinner from selling his story about meeting al-Qaida leader Osama bin Laden in Afghanistan, and his allegations of being tortured during his five years at the Guantanamo prison.

"We would seek to ensure that he would not be able to profit from any story that he sought to tell," Ruddock told Nine Network television.

The Australian government agreed to let the U.S. charge Hicks because his training with al-Qaida and the Pakistani terrorist group Lashkar-e-Taiba in 2001 did not break any Australian law at the time.

But the government had Hicks in mind when it passed legislation in 2002 that prevents lawbreakers from selling their stories if they have committed offenses that can be tried by a U.S. military commission, established by President Bush's order in 2001.