From Chief Prosecutor To Critic at Guantanamo
- From Chief Prosecutor To Critic at Guantanamo
By Josh White
Washington Post Staff Writer
Tuesday, April 29, 2008; A01
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.