Photo by Tony Sernack for The New York Times

Apparently unwillling to learn from the downfall of Cully Stimson, Col. Morris Davis, chief prosecutor in the U.S.’s "case" against Australian Gitmo detainee David Hicks has now begun publicly threatening Hicks’s defense attorney, Maj. Michael Mori, with prosecution himself. 

Now, it’s abundantly clear from the available coverage of the Hicks case that this is nothing more than flop-sweat-soaked desperation on the part of Davis and the administration.  But that’s cold comfort to Mori, who could face not only the loss of his commission, but jail time, and to Hicks, whose case would then be delayed for months while new defense counsel is appointed and gets up to speed on the case.

So why are Davis’s knickers in such a twist?

Maybe because the government has no case.

Davis whines that Mori shouldn’t be running around Australian in uniform, speaking to groups that want to know how to support Hicks’s legal effort.  What Davis would undoubtedly like to forget is the fact that the five different charges the U.S. originally leveled at Hicks, have now been reduced to one:  "material support for terrorism."

Yep.  You read that right.  This slob, this high-school dropout and ne’er-do-well schlump, this citizen of a foreign country that is allegedly our ally has been held for five freaking years without charge in the legal no-man’s-land that is Gitmo.  All for what comes down to "material support for terrorism?"

Here’s what The NYT has to say:

Mr. Hicks was initially charged with conspiracy to commit murder and engage in acts of terrorism, attempted murder and aiding the enemy. That was later reduced to attempted murder and “providing material support for terrorism.”

Got that?  1) Conspiracy to commit murder.  2) Conspiracy to engage in acts of terrorism.  3) Attempted murder.  4) Aiding the enemy. [Ed. note:  Umm, whose enemy?  It’s not treason for an Australian citizen to aid an enemy of the U.S.  It may be treason to aid an enemy of Australia (and those enemies may be one and the same), but that’s a prosecution for Australia, not us.]

So that’s four charges.  When the U.S. Supreme court got involved, charges 1), 2), and 4), above, got whacked.  Left with 3), our brilliant legal tacticians decided to add another, which, for consistency’s sake, we’ll label 5):  "Providing material support for terrorism."  Then, the presiding judge dismissed 3), too - so poor old Davis is left with the unsexy and unexciting 5).

Of course, it gets better (doesn’t it always?).  As noted, Charge 5) was added much later.  Trouble is, it relates explicitly to his membership in an Afghan group called Lashkar-e-Taiba, which, on September 11, 2001, was not classified as a terrorist organization, either by the U.S. or by Australia.  (According to The NYT, that change in classification didn’t occur until the last week of 2001.)  Worse, the U.S. didn’t even have a crime of "providing material support for terrorism" on the books until . . .wait for it . . . 2006!

Of course, as The NYT notes, our post-9/11 government has not given a rat’s ass about such constitutional niceties as the prohibition on ex post facto laws - certainly not for any damn foreigners.  Nonetheless, there’s a good legal argument to be made that this final charge should be dismissed as well, and I’m sure that Mori’s making it.

What’s really funny is the sense of rising panic among both the U.S. and Australian administrations.  After five years - and the hysterical fear-mongering a scant two weeks ago of U.S. ambassador to Australia Robert D. McCallum, Jr. that all the people left in Gitmo are “ruthless fanatics who would kill Australians and Americans without blinking an eye” - the whole case seems destined for the crapper.  Australian media are reporting that the Aussie government is "desperate," and "would do anything to have the Guantanamo Bay detainee plead guilty."  Now, this last quote is from The Australian, which is part of news.com.au - a FOX site.  I had planned to snag the link to the article but, lo and behold, when I click on the link now, I get this:

The page you requested could not be found

We could not find the page you requested. This is either because:

There’s an error in the address or link you have entered in your browser;
There’s a technical issue and the page has not been properly published;

Yep - it ends with the semi-colon.  According to Google News, which is still indexing its hed, it was posted within the last 24 hours.  And I couldn’t find it via a serach on the news.com.au site.  Which, of course, leads me to break out my tinfoil propeller beanie and wonder whether the site yanked it at the request of Howard (and/or the Bush administration).  After all, they’ve shown time and again that nothing’s too petty for them to try to control it.

At any rate, the point of the piece was that Howard is facing a great deal of wrath at home because he has allowed the U.S. to imprison an Aussie citizen without charges and without trial for five years, and is now allowing that same citizen to be subjected to a true kangaroo court, no pun intended.  And Howard is virtually begging Hicks and his attorney to agree to plead guilty to the final charge (you know, before it’s thrown out, too) in exchange for being allowed to come home immediately.

You know, if I’m Hicks, and they come to me with this kind of "deal" after I’ve survived five years of this bullshit, I’m gonna tell ‘em to get bent.  I hope he does.  And while Mori is apparently petitioning the court to assign new and "uncompromised" counsel for Hicks in order to protect his client, I hope he continues to tell and Davis and Co. to shove it.

Oh, and ABA?  While you’re reviewing dear Cully’s fitness to practice law, you might take a look at Davis, too.  They’ve both committed offenses worthy of disbarment.  Start cleaning out the infestation now.