Military Defence of the Rule of Law

What is it about the military and Guantanamo? In Australia, Marine Corps Major Michael Mori was accorded “rock star” status for his zealous defence of David Hicks, an Australia national captured in Afganistan following 9/11. See e.g., Mori Wins Praise of Lawyer Fans. Reproduced below is an article that has heartening news about former chief prosecutor, Air Force Colonel Morris Davis, who journeyed from supporter to strong critic of the Guantanamo military tribunals.

Former Prosecutor at Guantanamo Says Officials Exerted Pressure for Convictions
Michael Melia
The Associated Press
04-29-2008

A former chief prosecutor at Guantanamo Bay testified Monday that he faced growing interference from his Pentagon superiors following the arrival at the Navy base of “high-value” detainees with direct links to the Sept. 11 attacks.

Air Force Col. Morris Davis, who was called to testify by lawyers for Osama bin Laden’s former driver, said Pentagon officials showed increased interest in the schedule and the selection of detainees for trial once the prisoners arrived from secret CIA custody in September 2006.

“Suddenly, everybody had strong opinions about how we ought to do our job,” Davis said. ‘If you can get the 9/11 guys charged, you get the victims’ families energized, and if the case is rolling, whoever took the White House would have difficulty stopping this process.”

Davis was cross-examined by the Army officer who replaced him after his resignation last October, Col. Lawrence Morris, in one of the most dramatic challenges to the first American war-crimes tribunals since World War II.

The testimony came in the case of Salim Ahmed Hamdan, a Yemeni who is scheduled to be the first to go to trial next month. Defense attorneys hope to use Davis’ claims as the basis for a dismissal of the charges.

Guantanamo itself appeared to be on trial as defense attorneys seized on the testimony to question the fairness of a system in which confessed Sept. 11 mastermind Khalid Sheikh Mohammed and five others allegedly involved in the 2001 attacks are now facing trial.

Davis said one Pentagon official called for charges to be brought against the detainees ahead of the November 2006 midterm elections. He claimed other officials reversed his policy against using evidence obtained through torture and told him that acquittals would be unacceptable.

Davis said he resigned hours after he was put in a chain of command beneath Defense Department General Counsel William Haynes, one of several officials who had encouraged the use of evidence even if it was gathered through waterboarding — an interrogation method that simulates drowning. Under rules for the tribunals, known as commissions, it is up to the judge to decide what evidence is admissible.

“The guy who said waterboarding is A-OK I was not going to take orders from. I quit,” Davis said.

Hamdan is accused of delivering weapons to al-Qaida and its associates and training at terrorist camps. His lawyers say he had no significant role in planning or carrying out attacks against the U.S. He could get life in prison if convicted on charges of conspiracy and supporting terrorism.

The hearing in a hilltop courthouse overlooking the Caribbean was delayed for several hours after Hamdan refused to participate in the proceedings. He eventually returned to the courtroom.

Under cross-examination, Davis conceded that he never doubted Hamdan’s guilt or the acceptability of the methods used to obtain evidence in his particular case.

“Colonel Davis and I won’t agree on Mr. Hamdan’s guilt, but we can agree that the system is not going to be full, open and fair,” said Hamdan’s Pentagon-appointed defense attorney, Navy Lt. Cmdr. Brian Mizer.

The testimony from Davis marked the transformation of an outspoken defender of Guantanamo — he once compared putting detainees on trial to dragging “Dracula out into the sunlight” — into a persistent critic.

He alleged, among other things, that Haynes appeared shocked when Davis suggested in a 2005 meeting that acquittals, however disappointing, could boost the credibility of the system.

“He looked at me and said ‘We can’t have acquittals, we’ve been holding these guys for years,'” Davis testified.

Davis accused Air Force Brig. Gen. Thomas Hartmann, a legal adviser to the official overseeing the tribunal system, of exerting inappropriate influence by simultaneously directing tasks for the prosecution team that was supposed to be independent.

He said Hartmann handpicked prosecutors for different cases and demanded cases that were “sexy” or “had blood on them” and would resonate with the public.

An official who oversaw the tribunals until November 2006, John D. Altenburg Jr., testified for the prosecution that he did not know of any case where Davis was subjected to unlawful influence. He also said he never heard about a conversation in which Deputy Secretary of Defense Gordon England allegedly told Davis that charging the high-value detainees could have “strategic political value” for the 2006 elections.

Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch, said Davis’ testimony “is an indication that these trials will never have the credibility that’s needed as a proper response to the atrocities of 9/11.”

Davis is now head of the Air Force judiciary and has filed retirement papers to leave the military.

The U.S. holds about 275 men at Guantanamo and plans to prosecute about 80 before the military tribunals. So far, none of the cases has gone to trial although the military convicted one detainee, David Hicks, through a plea agreement that returned him to his native Australia to serve a nine-month prison sentence.

Copyright 2008 Associated Press. All Rights Reserved.

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