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From Chief Prosecutor To Critic at Guantanamo

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    From Chief Prosecutor To Critic at Guantanamo By Josh White Washington Post Staff Writer Tuesday, April 29, 2008; A01
    Message 1 of 1 , Apr 30, 2008
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      From Chief Prosecutor To Critic at Guantanamo
      By Josh White
      Washington Post Staff Writer
      Tuesday, April 29, 2008; A01
      http://www.washingtonpost.com/wp-dyn/content/article/2008/04/28/AR2008042802982.html?wpisrc=newsletter

      GUANTANAMO BAY, Cuba, April 28 -- The Defense Department's former chief
      prosecutor for terrorism cases appeared Monday at the controversial U.S.
      detention facility here to argue on behalf of a terrorism suspect that
      the military justice system has been corrupted by politics and
      inappropriate influence from senior Pentagon officials.

      Sitting just feet from the courtroom table where he had once planned to
      make cases against military detainees, Air Force Col. Morris Davis
      instead took the witness stand to declare under oath that he felt undue
      pressure to hurry cases along so that the Bush administration could
      claim before political elections that the system was working.

      His testimony in a small, windowless room -- as a witness for Salim
      Ahmed Hamdan, an alleged driver for Osama bin Laden -- offered a harsh
      insider's critique of how senior political officials have allegedly
      influenced the system created to try suspected terrorists outside
      existing military and civilian courts.

      Davis's claims, which the Pentagon has previously denied, were aired
      here as the Supreme Court nears a decision on whether the Military
      Commissions Act of 2006 that laid the legal foundation for these
      hearings violates the Constitution by barring any of the approximately
      275 remaining Guantanamo Bay prisoners from forcing a civilian judicial
      review of their detention.

      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 said he wants to wait until the cases -- and the military
      commissions system -- have a more solid legal footing. He also said 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.' "

      Davis also decried as unethical a decision by top military officials to
      allow the use of evidence obtained by coercive interrogation techniques.
      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."

      He also said Hartmann took "micromanagement" of the prosecution effort
      to a new level and treated prosecutors with "cruelty and maltreatment."
      Hartmann, he said, was trying to take over the prosecutor's role,
      compromising the independence of the Office of Military Commissions,
      which decides which cases to bring and what evidence to use.

      Davis, who initially defended the commissions process, testified that he
      resigned his position as chief prosecutor late last year as senior
      officials increased pressure on him to make decisions he thought were
      inappropriate. He now heads the Air Force Judiciary and plans to retire.
      Hartmann declined to comment on the proceedings through a spokesman, Air
      Force Capt. Andre Kok.

      Hamdan, a Yemeni detainee who next month could be the subject of the
      first full military commissions case at Guantanamo Bay, listened
      intently to Davis's translated words through headphones, watching his
      former adversary make a case that the commissions are tainted.

      But Hamdan, during the morning session, also appeared to show some
      evidence of mental deterioration, which his attorneys have ascribed to
      mistreatment and lengthy solitary confinement. He seemed in a daze as he
      was led into court in his khaki detention uniform.

      He then engaged in a short, subdued rant to Allred about how he believes
      he is not being afforded human rights and would like to use the bathroom
      without soldiers watching him. He also tried at one point to get up from
      the defense table to leave the room. "I refuse participating in this,
      and I refuse all the lawyers operating on my behalf," Hamdan said. He
      returned for the afternoon session in traditional Yemeni garb and a
      sport coat and agreed to continue.

      Independent legal experts have criticized the commissions process
      because its rules allow hearsay or coerced evidence with the approval of
      a military judge; defendants are barred from using habeas corpus
      petitions to force a review of their detention; and convictions can be
      decided by panels of serving military officers without a unanimous
      verdict, except in capital cases.

      Davis's concerns, which he has previously raised with reporters, are
      more narrow: that the process has been subverted. He told the hearing
      that he thought Hamdan should be prosecuted for his alleged crimes and
      he said he "never had any doubts about Mr. Hamdan's guilt."

      But he said that top military officials went around him when he was
      chief prosecutor, for example, to negotiate plea agreements, and that
      politicians forced him to press charges against Australian David Hicks
      even though he would have rather gone after other suspects first. When
      Hicks struck a secret plea deal that brought his release, Davis said he
      was not a party to it.

      One of Hamdan's civilian attorneys, Joe McMillan, said after the hearing
      that Davis's testimony "calls into question the impartiality and
      independence of this court." Ben Wizner, a lawyer with the American
      Civil Liberties Union who has been tracking the commissions, said it
      "laid bare that from the start, this has been a political process and
      not a legitimate legal system."

      A Pentagon spokesman, Navy Cmdr. J.D. Gordon, said Monday that officials
      declined to comment because the hearings are ongoing.

      Staff researcher Julie Tate in Washington contributed to this report.
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