Justice for Guantanamo Prisoners

This is a partial transcript of The Big Story With John Gibson, Jan. 23, 2004, that has been edited for clarity.

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UNIDENTIFIED MALE: He has not been ill-treated since his arrival in Guantanamo Bay (search), if you ignore the isolation, his lack of access to the outside world and his denial of his basic human rights.

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JUDGE ANDREW NAPOLITANO, GUEST HOST AND FNC SENIOR JUDICIAL ANALYST: That's the civilian lawyer for David Hicks (search), an Australian accused of fighting for the Taliban. He was finally allowed to meet his client last month, two years after Mr. Hicks was sent to Guantanamo. Now a military lawyer has been assigned to defend Hicks, and even he is saying the military tribunal system is fundamentally unfair and designed to produce a guilty verdict.

United States Marine Corps Major Michael Mori (search) is the defense counsel for David Hicks, and that's today's big question, Major. Can David Hicks get a fair trial?

MAJOR MICHAEL MORI, MILITARY DEFENSE COUNSEL: Good evening, sir. David Hicks cannot get a fair trial under the commission rules and procedures that have been established currently to try the detainees down in Guantanamo Bay.

NAPOLITANO: Why not? What's wrong with the procedures that have been established?

MORI: What's wrong with the procedures is basically the procedures have gutted the recognized criminal justice system either in the civilian process or under the uniform code of military justice. The ...

NAPOLITANO: Well, let's start with the judges. Are the judges independent, or do they work for Donald Rumsfeld?

MORI: Sir, there is no judge. The judge — independent judge has been removed from the system and been placed in the role of what they call the presiding officer on the actual jury panel themselves, so there is no independent judge to rule on issues, to control the process, to be an unbiased controller of the process to see that both sides get a fair access and fair presentation of the evidence without biasing the jury.

NAPOLITANO: Well, who or what is the jury? What makes up the jury? Are they military officers? Are they civilians? Are they the same people that work for the prosecutor?

MORI: Sir, the actual members will come from the U.S. armed forces officers that are out there serving today, and that is the one hope and shining light in this process, that those members will bring the same judgment and common sense and apply it to the commission process as they have done in the U.S. court-martial system.

NAPOLITANO: Now, what does the government say that your client, Mr. Hicks, did?

MORI: Sir, at this point David Hicks has not received any charges. All I can really say about David Hicks is that David Hicks has not injured any U.S. servicemen or citizen. He has been held at Guantanamo Bay for two years. All the information I have been provided for the case is under protective order.

NAPOLITANO: OK. I understand that there are certain things that you can't say, and I don't want you to say what you can't say, but what do you mean he hasn't received any charges? Are you telling us he has been locked up for two years, a trial is scheduled, you are the lawyer, and you don't know what the charges are that have been filed against him?

MORI: Correct, except there has been no trials set yet either, sir.

NAPOLITANO: You filed, I think, an application with the United States Supreme Court as a lawyer, as an officer of the court, as an officer of the United States Marine Corps, as an active duty officer challenging the manner in which these tribunals have been set up. How does one on active duty go about challenging, suing the Secretary of Defense?

MORI: Sir, if you notice ours was an amicus brief from the attorneys sent to the defense office to do our jobs. That brief just represents our perspective, that we want the Supreme Court to consider. Very important about this system is there is no reason to change the established rules. If there's reliable evidence to try David Hicks, to do so in an established court of justice. If there's not reliable evidence, don't change the rules.

NAPOLITANO: If David Hicks is convicted before a military tribunal in Guantanamo Bay, is there any way that that conviction can be appealed to a federal civilian court, a United States federal court?

MORI: Well, that's part of the focus of the actions in the Supreme Court under the orders and rules for the commission, we are prohibited to go to federal court seeking review.

NAPOLITANO: Now, why would you be prohibited from going to a federal court? What is the government afraid of that might come out if federal judges were involved?

MORI: Sir, I don't like to speculate on the motives behind why the rules were written. All I can say is if the system of the U.S. court- martial was used, you would have that independent review by a civilian process all the way up to the Supreme Court, and that's why I believe that David Hicks should go to a U.S. court-martial.

NAPOLITANO: Before I let you go, Major, did you take any heat from your colleagues and your buddies for having the chutzpah to file an action before the Secretary of Defense in the Supreme Court?

MORI: Sir, most of the comments we have we've all received from officers have been supportive, and they understand why we're doing it, why we're — we have the valid legal basis to put forth the arguments we do.

NAPOLITANO: What is your prediction: Does the court get involved and change things, or do they let the Secretary of Defense run this as he wants?

MORI: Sir, I hope the court gets involved and we have the independent checks and balances that we're supposed to have in a justice system

NAPOLITANO: Major Michael Mori, United States Marine Corps, thank you for joining us tonight, Major.

MORI: Thank you for having me here, sir.

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