Former Gitmo Prosecutor Testifies for Defense

Air Force Colonel Morris Davis, the former chief prosecutor for Guantanamo Bay, recently testifed for the defense on behalf of a terror suspect. Specifically, he testified to the unwillingness of the Pentagon to hold fair hearings for detainees.

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.’ “

Read the whole thing. Res ipsa loquitor.

Given that we are in election season, I thought it might be interesting to see what official positions the three major Presidential candidates have on the detainees at Guantanamo Bay. So I went to each candidate’s website, clicked on their “Issues” link, and tried to find what each of them said. Here’s what I found:

Nothing.

Now, it happens that I know that McCain, Clinton, and Obama have all expressed a willingness to shut down Guantanamo Bay and restore habeus corpus rights and hold fair hearings to determine the proper status of all the detainees. I am, however, quite disappointed that none of them seems willing to say so in the Issues portion of their campaign sites.

FILED UNDER: Law and the Courts, Military Affairs, , , ,
Alex Knapp
About Alex Knapp
Alex Knapp is Associate Editor at Forbes for science and games. He was a longtime blogger elsewhere before joining the OTB team in June 2005 and contributed some 700 posts through January 2013. Follow him on Twitter @TheAlexKnapp.

Comments

  1. Bithead says:

    Now, it happens that I know that McCain, Clinton, and Obama have all expressed a willingness to shut down Guantanamo Bay and restore habeus corpus rights and hold fair hearings to determine the proper status of all the detainees. I am, however, quite disappointed that none of them seems willing to say so in the Issues portion of their campaign sites.

    Perhaps that has to do with the rather harsh political reality of what happens to someone promoting terrorists to the status of citizen by granting the rights normally claimed by citizens to people who would as soon see us dead, and have been working toward that end.

    John McCain got a small taste of the backlash involved, when he floated such ideas a while ago. There’s a reason he’s clammed up about it, and why the others have said nothing; The people simply don’t support the idea.

  2. duckspeaker says:

    Perhaps that has to do with the rather harsh political reality of what happens to someone promoting terrorists to the status of citizen by granting the rights normally claimed by citizens to people who would as soon see us dead, and have been working toward that end.

    First, granting a trial to a non-citizen accused of a crime is by no means irregular in a Western democracy.

    Second, I think the logical flaw in your argument is the phrase “people who would as soon see us dead.” The question is, how do you know Defendant X does indeed want us dead, or is involved in a plot to conspire to see us dead? Do you see a Muslim-sounding name, and just trust that the government didn’t make a mistake and pick up the wrong guy (because bureaucracies never make mistakes…cough..yellow cake…cough…uranium tubes from Niger)? Or, do you require some sort of proof to prevent the slippery slope of convictions without the burden of proof?

    I fail to understand how conservatives that mistrust the government in tax collection, administration of education, administration of health care, et al, are so willing to cede basic things like habeas corpus to the powers that be.

  3. Bithead says:

    First, granting a trial to a non-citizen accused of a crime is by no means irregular in a Western democracy.

    That statement assumes we’re not in a state of war. So does your other statement. the reality is that things change during wartime.

  4. Bithead says:

    Oops. Forgot.

    I fail to understand how conservatives that mistrust the government in tax collection, administration of education, administration of health care, et al, are so willing to cede basic things like habeas corpus to the powers that be.

    Simple; Defense is a constitutionally mandated duty of the governent. Indeed, the FIRST duty. All else is secondary to that.

  5. cian says:

    I fail to understand how conservatives that mistrust the government in tax collection, administration of education, administration of health care, et al, are so willing to cede basic things like habeas corpus to the powers that be.

    Not so difficult to understand when you realize that most sane conservatives gave up on the Bush admin years ago. The 28% who still approve have long abandoned the notion of judging a situation by the facts presented.

    What is it Homer Simpson says? Oh yes- ‘Stupid facts’.

  6. duckspeaker says:

    More people were killed in Chicago and in Philly last weekend, than were killed in Iraq.

    the reality is that things change during wartime.

    So Bithead, in one breath you can argue that the war is no biggy because KIA’s are low, and in the next breath you argue that the war is so game-changing that it provides sufficient justification for pre-empting the rule of law.

    Please elaborate.

  7. Dave Schuler says:

    In my view among the Bush Administration’s major errors in dealing with prisoners, particularly those taken in Afghanistan, has been in not giving them status hearings as required under our Geneva Conventions obligations.

    That’s the minimum requirement under the Conventions for any prisoner. Regardless of whether they’re civilians, common criminals, irregulars, or regulars they’re supposed to have a status hearing.

    I’ve been inclined to give the Bush Administration the benefit of the doubt and assume that they neglected to do so because they really didn’t know what to do with them or because they didn’t want to stand up to the political firestorm likely to ensue when the determination they were convinced was the correct one was made, i.e. that they were foreign irregulars in a war zone and subject to summary execution.

    This testimony seems to cast events in a different light.

  8. Bithead says:

    Hmmm. Actually, I mis- spoke, now that I look at it.
    It wasn’t the most recent weekend, but the weekend before. My error.

    13 dead in Chicago alone,that weekend,(A figure I’m sure James will have seen, since, if I recall correctly, he lives there?) … and I forget how many in Philly. But the Chicago figure alone was higher than the number of troops and contractors who died in Iraq that same weekend.

  9. Bithead says:

    That’s the minimum requirement under the Conventions for any prisoner

    Show us where this applies to terrorists and non-state actors, please.

  10. Bithead says:

    So Bithead, in one breath you can argue that the war is no biggy because KIA’s are low, and in the next breath you argue that the war is so game-changing that it provides sufficient justification for pre-empting the rule of law.

    Please elaborate.

    Had it occurred to you that the reason the figures are low now is because we’ve taken a good number of the extremists off the streets?

    And remember, this is not a preemption of the rule of law… much as you like to think it is. The rule of law applies rather differently to terrorists and non-state actors, than it does to soldiers.

  11. Dave Schuler says:

    Geneva Convention relative to the Treatment of Prisoners of War, Part I, Article 5:

    Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

  12. duckspeaker says:

    Had it occurred to you that the reason the figures are low now is because we’ve taken a good number of the extremists off the streets?

    I would argue that while we may have disposed of some (i.e. hundreds or even thousands) of criminals/bad actors/terrorists, our military’s continued presence, as well as the ripple effects of lost, dead, or maimed family members, crime, poverty, and ethnic segregation that are direct results of the invasion, will probably result in more hostility and more terrorists in the end.

    That is:

    (# Terrorists after invading/bombing/partitioning) – (# Terrorists killed/renditioned) > (# Terrorists before invasion/bombing/partitioning)

    But, even if we agree with your premise that the relative violence levels are more peaceful than Philly or Chicago, isn’t that all the more reason to reinstate habeas?

  13. Bithead says:

    Not yet, no.

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