Monday, March 10, 2008


By William Fisher

At a pretrial hearing at Guantanamo Bay, Cuba, next month, the Pentagon will take its first public step toward a Military Commission trial for Osama bin Laden’s alleged driver and bodyguard. And one of the witnesses for the defense will be the military’s former chief prosecutor.

He is Col. Morris Davis, now head of the Air Force judiciary, who resigned as prosecutor in October over alleged political interference in the U.S. military tribunals. His resignation was triggered by his being placed under the direction of the then Pentagon general counsel, William Haynes.

Unless the Pentagon blocks his appearance, Col. Davis will testify at the hearing for Salim Ahmed Hamdan. Hamdan faces up to life in prison if the tribunal convicts him of conspiracy and supporting terrorism.

Davis is expected to testify that Haynes told him in August 2005 that any acquittals of terrorism suspects at Guantanamo would make the United States look bad. Davis has said Haynes told him, “We can't have acquittals, we've got to have convictions," raising doubts about the fairness of the trial.

Hamdan's defense team plans to argue that the charges should be dismissed because the political interference alleged by Davis violates the Military Commissions Act.

But Col. Davis may never get to testify. Last December, two months after he resigned as the chief prosecutor for the Guantanamo war crimes tribunals, the Defense Department barred him from testifying before a Senate Judiciary subcommittee.

Davis said he believes “the problem is having political appointees injected into the system. They are looking for a political outcome, not justice."

Haynes resigned as the Pentagon’s top legal official late last month. He has long been under fire for his role in crafting the Bush Administration's policies regarding the interrogation and detention of prisoners captured in the "war on terror."

Haynes was a principal architect of memos and public statements advocating torture and the denial of habeas corpus for detainees. In a 2002 memo, he recommended techniques such as "twenty-hour interrogations, isolation for up to thirty days, deprivation of light and auditory stimuli...and stress positions such as the proposed standing for four hours." He also recommended keeping such “enhanced interrogation techniques” as death threats, waterboarding, and exposure to extreme temperatures. He argued that detainees currently held at Guantanamo Bay are not protected by the Geneva Conventions.

These positions led to international condemnation and a stalemate in the prosecution of Guantánamo detainees. Only one case -- that of Australian David Hicks -- has been adjudicated in six years.

Haynes was also a Bush judicial nominee for the 4th Circuit Court of Appeals. He was widely opposed, principally because of his role in crafting the Bush Administration's military interrogation policies. A number of prominent military figures weighed in against him, among them retired Real Admiral John Hutson. Hutson wrote to the then chairman of the Senate Judiciary Committee, Pennsylvania Democrat Arlen Specter, saying that Haynes was in “a unique position to ensure (that abusive interrogation) didn't happen in the first place or surely to stop it once it had occurred. He failed to do so.” Haynes’ nomination was rejected by the Judiciary Committee.

In a related development concerning these “high value” detainees, it was recently revealed that several hundred agents of the Federal Bureau of Investigation (FBI) have been re-questioning these detainees for at least two years. Their mission has been to “recreate” the evidence reportedly gained originally from interrogations that employed various forms of coercion. The investigations were requested by the Defense Department, which feared that evidence acquired through coercion would be inadmissible in their Military Commission trials.

But many legal scholars argue that such evidence would amount to “fruit from the poisoned tree” -- by which evidence is inadmissible if it was generated from an unconstitutional or illegal act -- and could therefore not be used against the defendants.

Gabor Rona, International Legal Director for Human Rights First, an advocacy organization, told us, “Consider a confession by someone who has been detained without judicial process, held for years in near isolation, denied contact with family or legal counsel, subjected to prolonged interrogation under circumstances amounting to cruel, inhuman and degrading treatment or torture. Evidence gained under such circumstances cannot be used in a trial, according to both international and domestic law, and for good reason. The idea that this individual, while still in the custody of those same captors, can then be freshly interrogated without the use of coercive interrogation techniques in order to provide an untainted confession is absurd.”

He added, “To assert otherwise is to simply add to mounting evidence that the military commission process is neither designed to provide, nor is capable of providing, justice.”

Col. Davis also contends that the Hamdan incident was not the first time political pressures were applied to the Guantanamo trials process. He said that in March 2007 that senior officials pushed for a plea bargain for Guantanamo detainee David Hicks, dubbed the “Australian Taliban.” The plea allowed him to serve a nine-month sentence in his homeland for aiding the Taliban. Davis said the sentence was orchestrated to help Conservative Party Prime Minister John Howard of Australia, who sanding for reelection and was under domestic criticism for his support of U.S. policies. Hicks was recently released from an Australian prison. Howard lost his reelection bid.

Hamdan became part of U.S. judicial history when the Supreme Court found in his favor in 2006 that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." Specifically, the ruling said Common Article 3 of the Third Geneva Convention was violated.

The case considered whether the U.S. Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law (including the Uniform Code of Military Justice and treaty obligations), and whether courts can enforce the articles of the 1949 Geneva Convention.

The court’s decision was a stunning rebuke to the Bush Administration. It led to Congress’ hurried enactment of the Military Commissions Act (MCA) of 2006, which set up new procedures and structures for bringing Guantanamo detainees to trial, and limited detainees’ access to habeas corpus. The MCA still faces court challenges as being unconstitutional.

The U.S. Government has called for the death penalty for the six “high value detainees,” who were transferred to Guantanamo from secret CIA prisons in Eastern Europe, where they were reportedly subjected to harsh interrogations. Those charged include Khalid Shaikh Mohammed, an alleged former senior aide to Osama bin Laden, who is said to have admitted to being the principal planner of the plot.

The U.S. currently holds about 275 men at Guantanamo and says it plans to prosecute approximately 80 before military commissions.