FOUR years after terror-suspect David Hicks arrived in Cuba in a hood and shackles, described by the US as among the "worst of the worst", his military lawyer says he has lost all hope of being freed.

According to Major Michael Mori, Australia's refusal to put pressure on the White House for Hicks's release has left the Adelaide man bewildered and despairing. Major Mori said it had been difficult to explain to Hicks why Australia had given up on him even though he had not broken any Australian law.

"He asked me: 'What does Australia say I did wrong?' and I had to explain to him that he did not break any Australia law, but they were still going to leave him there. He could not understand it," Major Mori said yesterday.

He said that the military commissions set up to try Hicks and nine other detainees at Guantanamo were not a real justice system. They did not conform to rules of evidence and did not have an independent judge.

"Until he is provided with a fair trial, there will be no hope for him. Because David is halfway around the world in Guantanamo I think it escapes people's minds what's really going on."

Major Mori, a US Marine Corps officer who has represented Hicks since 2003, is visiting Melbourne to consult Melbourne University Law School staff helping with the Hicks case.

Despite the US's refusal to classify Guantanamo Bay detainees as prisoners of war or to give them a trial, Major Mori said the detainees were demonstrably not "the worst of the worst". More than 200 of the original detainees, including Sydney man Mamdouh Habib, had already been released without charge, and no others had been detained, while Hicks languished in detention.

"What about the 40,000 other Taliban troops? Why aren't they being rounded up and being tried? I know it's not a big stretch to say there are probably people more culpable than David Hicks," he said.

Hicks, 30, has been detained since his capture among Taliban troops in Afghanistan in December 2001. Hicks trained in an al-Qaeda camp in Afghanistan alongside Werribee man Jack Thomas, who last week was sentenced to a minimum two years' jail for accepting support from the terrorist network. Hicks has spent 4½ years in custody.

"Hicks has already done more than Jack Thomas will do. He has already done almost as much as (intended Israeli embassy bomber) Jack Roche will do, and David has not violated Australian law," Major Mori said.

Hicks has pleaded not guilty to charges of conspiracy, attempted murder and aiding the enemy and is to face a commission hearing at an unspecified date. His military commission trial has been stayed to allow the US Supreme Court to rule on its legality, a decision likely to be handed down in June.

The British Government has appealed against a decision by the High Court in London opening the way for Hicks to take out British citizenship. All British citizens held at Guantanamo Bay have been released.

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ELEANOR HALL: The military defence lawyer for Australian Guantanamo Bay detainee David Hicks is visiting Australia and today he thanked Melbourne University's Law School for its assistance in the Hicks case over the last three years.

Major Mori has been a guest of the Law School this week and last night he spoke to law students, academics and invited guests in a packed lecture theatre.

Alison Caldwell was there for The World Today.

ALISON CALDWELL: Major Michael Mori was in Melbourne last night to address law students at Melbourne University's Asia Pacific Centre for Military Law.

MICHAEL MORI: Well, when I was asked, I thought it was only going to be a group of about 20 people. So… (laughs)

ALISON CALDWELL: You were surprised at the turn out?

MICHAEL MORI: Yeah, I was very surprised at the turn out.

ALISON CALDWELL: So what does that say to you?

MICHAEL MORI: Well, obviously it's a law school where there's going to be a lot of interest in this area of the law - international humanitarian law and international law. Obviously commissions haven't happened in over 60 years and I think people are curious to see what's going on and learn the truth about the process and its problems.

ALISON CALDWELL: A lawyer with the US marines, Major Michael Mori volunteered to work as a defence lawyer for the proposed military commissions in Guantanamo Bay, in early 2003. He was assigned to defend the Australian detainee David Hicks.

With a background in US court marshalls, the Bush administration's new military commission process was something Major Mori had never experienced before.

He decided to seek advice from international law experts both in the US and here in Australia, and law lecturers and graduates at Melbourne University's Law School have been helping him ever since.

Law School graduate Sarah Finnin has been providing research assistance for Major Mori in Washington since 2004.

SARAH FINNIN: All five military lawyers and their paralegals, who were used to US court marshall proceedings, faced new challenges trying to understand the complex area of the international law of war and the unique procedural aspects of the newly established military commissions.

ALISON CALDWELL: Speaking to The World Today after his lecture, Major Mori said his faith in American military law hasn't wavered.

MICHAEL MORI: No, because remember, the Commission system wasn't set up by one of the Judge Advocate-Generals for one of their services. You know, it wasn't given to the Judge Advocate-General of the Army and said, you create this system, you do this independently.

It wasn't given to the Judge Advocate-General of the Navy and said, you set this up. This is not military justice. No one should be fooled to believe that it is. This is not the Court Marshall process.

The Court Marshall system is something to be very proud in.

ALISON CALDWELL: You've been coming to Australia for a couple of years now. Have you noticed a change in the Australian attitude towards David Hicks?

MICHAEL MORI: Well, I think it's taken some time for the initial media hype about David to… for people to start saying, well, wait a minute, let me see, what did he really do?

Stop listening just to the news media, you know, there was that blitz at the very beginning when he was detained and then people started questioning: okay, what did he exactly do? And they're finding out that he never really hurt anyone.

And time has gone by and I think four years is seen as sufficient consequences for what he's alleged to have done.

And I think they're also saying the unfair treatment when you look at him and how others are being treated, others are just being released, you've got the former Taliban ambassador attending university in the United States and yet David Hicks remains locked up, charged with aiding the Taliban.

It's shocking that a Taliban member, Taliban leader would have more rights than an Australian citizen.

ELEANOR HALL: US military lawyer, Major Michael Mori speaking to Alison Caldwell in Melbourne.

Click Here for more info on David Hicks and inmates at Guantanamo Bay

David Hicks’ US military lawyer Major Mike Mori told a packed audience at Melbourne University law school on April 6 that Hicks’ trial was "politically motivated". Mori was delivering the law school’s 2006 Alumni lecture, titled "Why David Hicks will not receive a fair trial come his day in court".

Mori cited the lack of independence from the US government of the military commissions set up to try Hicks and others imprisoned at the US naval base at Guantanamo Bay as a major reason the hearings will amount to little more than "show trials".

He argued that defendants face a situation where those who fought the war against them have set up the justice system, created the offences they will be charged with and will now prosecute them under rules they have established themselves.

He said that in the face of worldwide criticisms of the process there had been cosmetic changes — such as the prosecutors and "judges" no longer sitting together. The Bush administration also swore in a four-member appeals panel. However, according to Mori, one of those sworn in has already said that he believes that detainees are not protected by the international laws of war and another is a close associate of US war secretary Donald Rumsfeld.

There is also a lack of fundamental trial protections. Although some of the "formalities" are observed, such as the right to silence, they are basically irrelevant given that the military has been able to "interrogate" the detainees for years without them having any right to silence.

The usual rules of evidence are not observed by the commissions and much that a civilian court or a military court-martial would not allow can be admitted. For instance, sworn evidence given by a witness in an unrelated trial can be used against a detainee without them being able to question or test its veracity.

The prosecution can also declare anything "protected information" and it cannot then be called in the detainee's defence.

Mori also questioned the "information" gathered during the interrogation of detainees. It is normal practice to record such interrogations and keep records of the information provided — for intelligence and legal purposes. "None of the interrogations of Guantanamo detainees have been recorded", said Mori. He added that, had they been recorded, they could have been brought as evidence for the defence depending on how they were conducted and what was said in them — and that is why they weren’t recorded.

The prosecution has created 33 brand new offences to charge the detainees with. "They were written by the first chief prosecutor", said Mori. So the prosecution not only sets up the system to try the detainees, but acts as legislators in creating new offences.

"I’ve asked what law applies to these commissions, but I still don’t know — the presiding officer won’t say." The prosecution claims the offences are derived from the laws of armed conflict, but Mori pointed out that some of the charges, such as conspiracy, are not war crimes.

Mori also pointed to the selective enforcement of these "laws". They don't apply to US citizens. He said that recently a US citizen had been put on trial in Peru charged with terrorism and was facing a similar military commission. "The US government put pressure on Peru until the case was transferred to a civilian jurisdiction, which tells me the US don't support military commissions."

Mori also mocked the category of "unlawful combatants". He showed a series of slides of Taliban fighters dressed in "civilian clothing", then US military, CIA and Afghan "allies" also in civilian garb fighting in Afghanistan and asked: "Who is the unlawful combatant?" He showed a slide of a Northern Alliance soldier beating a prisoner and remarked: "This guy is committing more of a war crime than anything David has been charged with."