The Truth About Military Commissions Laid Bare at Guantanamo

Yesterday, Monday April 28, 2008, the man who used to be the Chief Prosecutor at Guantanamo  gave sworn testimony that puts the lie to the farce of the of the Military Commissions AcT (MCA) proceedings being used to try alleged terrorists. Col. Morris Davis told the tribunal hearing the case of Salim Ahmed Hamdan that

Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

“He said, ‘We can’t have acquittals,’ ” Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. ” ‘We’ve been holding these guys for years. How can we explain acquittals? We have to have convictions.’ “

(Note, there is no transcript available at this time.)

Not only did Davis say that the outcome of these proceeding was rigged but that the motivation for even having the trials was political.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have “strategic political value.”

Davis also addressed the use of so-called “evidence” extracted by the use of torture.

He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. “To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind,” Davis testified. But he said Hartmann replied that “everything was fair game — let the judge sort it out.”

Col. Davis’ statements in court were more specific and damning than the reasons he gave for resigning last October, as outlined in an op-ed in the L. A. Times. He articulated three reasons. First,  Susan Crawford, the new person appointed as the convening authority issued orders that removed any pretense of her objectivity in the proceedings. Second, Crawford was undermining any possibility that the proceedings would be viewed as legitimate by the Nation and the world, by insisting on more secrecy than what was needed for national security reasons. Finally, as echoed in his testimony he

resigned because of two memos signed by Deputy Secretary of Defense Gordon England that placed the chief prosecutor — that was me — in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the U.S. 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor’s office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes’ place in my chain of command.

Subsequently, Col. Davis felt the need to be even more critical of the military commissions. In an article in the Nation after six Guantanamo detainees were charged he talked about the prospect of fair trials by relating the conversation he had with Haynes, which was later covered in his testimony to the tribunal.

Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes–the man who now oversees the tribunal process for the Defense Department.

“[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.'”

This has been a long road to disillusionment  for Col. Davis. Before he testified, before the Nation interview, and before his op-ed following his resignation, he wrote an op-ed in the Times defending the treatment of prisoners at Guantanamo and the fairness of the MCA procedures. He summarized by saying,

Guantánamo Bay is a clean, safe and humane place for enemy combatants, and the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes. Even the most vocal critics say they do not want to set terrorists free, but they scorn Guantánamo Bay and military commissions and demand alternatives. The facts show the current alternative is worth keeping.

Four months later, after seeing how the Bush Administration cretins would work to subvert the purpose of the law (though I am not one who ever believed it workable) and further besmirch the principles of the nation he had enough. Though he has already publicized his view regarding the travesty of the MCA proceedings, what he did in the Hamdan trial is different. He swore under oath as to what he knew, had seen and had heard.

It is easy to be cynical about what, if any, effect this testimony will have on the Hamdan trial. But it seems undeniable that sworn testimony from the ex-Chief Prosecutor that challenges the underlying  fairness, objectivity and veracity of the proceedings in Guantanamo, conducted under the auspices of the Military Commissions Act, will rightfully give support to all those who have questioned the validity of this process from the outset. Also, it should lay the groundwork for a truth telling session, either by the court or Congress, with Brig. Gen. Thomas W. Hartmann, Deputy Defense Secretary Gordon R. England, and William J. Haynes II. Hopefully, it will also generate political support for the Congress to finally begin holding the people in this administration accountable for the travesties they have committed in our names.

There is one final sad note about all of this. Even if these trial were fair Bush has corrupted the system beyond recognition as pointed out in this quotation from the Nation article,

Says ACLU staff attorney Ben Wizner, “The trial doesn’t make a difference. They can hold you there forever until they decide to let you out.” The one person to be released from Guantánamo through the judicial process, Australian David Hicks, pleaded guilty. As Wizner wrote in the Los Angeles Times in April 2007, “In an ordinary justice system, the accused must be acquitted to be released. In Guantánamo, the accused must plead guilty to be released.”

Also posted at September 17, 1787 and on orange.