[Ppnews] Guantánamo - Pentagon Boss Resigns, Ex-Prosecutor Joins Defense
Political Prisoner News
ppnews at freedomarchives.org
Wed Feb 27 13:24:35 EST 2008
February 27, 2008
Pentagon Boss Resigns, Ex-Prosecutor Joins Defense
Guantánamo's Shambolic Trials
By ANDY WORTHINGTON
This has been another terrible week for
Guantánamo's Military Commissions, established by
Dick Cheney and his close advisors in November
2001 to try, convict and execute those
responsible for 9/11 through a novel process so
far removed from the US court system and the
military's own judicial procedures that the
tainted fruit of torture would be allowed, and
secret evidence could be withheld from the accused.
Struck down as illegal by the Supreme Court in
June 2006, the Commissions stumbled back to life
later that year in the hastily passed and
virtually unscrutinized Military Commissions Act
(which, for good measure, stripped the Guantánamo
detainees of the habeas corpus rights granted by
the Supreme Court in 2004), but they have
struggled to establish any kind of credibility.
Now apparently shorn of evidence obtained through
torture (although evidence obtained through
"coercion" can be allowed at the discretion of
the government-appointed military judges), the
Commissions were supposed to spring back to
muscular life two weeks ago, when the
administration finally got around to charging six
men in connection with the 9/11 attacks,
including Khalid Sheikh Mohammed, who has claimed
that he was "responsible for the 9/11 operation, from A to Z."
However, although the charges finally brought
9/11 back into the spotlight, the issue of
torture -- and the administration's increasingly
desperate attempts to hide the evidence of its
own "extreme, deliberate and unusually cruel"
practices -- has clung, limpet-like, to the
stories of these men, and does not look like
being resolved any time soon, especially as the
process of finding them military defense lawyers
will, like everything else to do with the
Commission's stuttering five-year history, likely proceed at a glacial pace.
In the meantime, the cases that have actually
made it before the Commissions remain mired in
controversy. The administration's decision to
choose a child soldier -- the Canadian Omar Khadr
-- as its first attempt at a real conviction
(after the Australian David Hicks flew home last
March following a politically-motivated plea
bargain) continues to attract heated opposition.
This week, for example, the leaders of bar
associations in 34 countries -- including
Australia, France, Finland, Iraq, Ireland,
Romania, South Africa, Turkey and the UK -- sent
a letter to George W. Bush and Canadian Prime
Minister Stephen Harper calling for the closure
of Guantánamo, and specifically addressing Omar
Khadr's case. "For five years, Omar Khadr, a
'child' under the terms of the UN Convention on
the Rights of the Child, has languished without
trial in Guantánamo," the lawyers wrote, adding,
"There is reason to believe he has been subjected
to treatment that is at best degrading and
abusive and at worst amounts to torture Few
governmental operations by democratic countries
have shown such a profound disrespect for the
rule of law. Guantánamo Bay has come to signify
injustice for some at the hands of the powerful."
The lawyers urged that Khadr be "transferred to
the custody of Canadian law enforcement
officials, so that he can face due process under
Canadian law and the principles of the rule of
law," adding, "We do not deny that some of those
detained at Guantánamo may have committed
criminal acts. If so, they should be tried by a
properly constituted court operating under rules that guarantee a fair trial."
Developments in the other case before the
Commissions -- that of Salim Hamdan, a Yemeni who
was one of Osama bin Laden's drivers -- are even
more distressing for the administration, as a
surprising new witness has offered to step
forward in his defense. Col. Morris Davis, the
former chief prosecutor of the Military
Commissions, was once a fierce advocate for the
system, arguing, as recently as last June, that
those who criticized Guantánamo and the
Commissions failed to understand that, as he
described it, "Reality for Guantánamo Bay is the
daily professionalism of its staff, the humanity
of its detention centers and the fair and
transparent nature of the military commissions
charged with trying war criminals."
Less than four months later, Col. Davis' opinions
had changed dramatically. In September he "filed
a formal complaint," alleging that Brig. Gen.
Thomas Hartmann, the legal adviser to retired
judge Susan Crawford, the "convening authority"
overseeing the trials, had "overstepped his
mandate by interfering directly in cases." He
suggested that both he and Hartmann should resign
"for the good of the process," adding, "If he
believes in military commissions as strongly as I
do, then let's do the right thing and both of us
walk away before we do more harm."
The roots of Col. Davis' discontent clearly
predated his enthusiastic endorsement of the
Commissions in June, and were focused not only on
Brig. Gen. Hartmann, who was appointed to his
role in July, but also on Susan Crawford, who was
appointed in February as the Commission's
"convening authority" by defense secretary Robert
Gates, and on Crawford's immediate boss William
J. Haynes II, the Pentagon's general counsel.
Col. Davis was reportedly upset because Brig.
Gen. Hartmann had been insisting that Salim
Hamdan should be offered a plea bargain similar
to the one that saw David Hicks released, even
though prosecutors explained that it "would be a
blow to the government's credibility." One
unnamed prosecutor even went so far as to
complain, "Think of our only other 'success' in
this -- David Hicks. How is that a success for
the United States government? How does that justify Guantánamo?"
In addition, Brig. Gen. Hartmann was clearly
opposed to what he perceived as the weakness of
the cases that Col. Davis had chosen to pursue:
those which, like Hicks, Hamdan and Omar Khadr,
relied "largely on unclassified evidence,"
allowing trials to be open to the press to
address criticism that the process was "too
secretive," even though these cases tended to
involve "relatively undramatic charges, such as
providing services to a terrorist organization."
Hartmann, in contrast, wanted higher profile
cases, which "could attract more public attention
and perhaps also support for the tribunal system,
even though they may involve closed proceedings."
In addition, Col. Davis' dissatisfaction with
Susan Crawford clearly predated Brig. Gen.
Hartmann's arrival at the Military Commissions.
As was revealed in October, David Hicks' plea
bargain was the result of an arrangement between
Dick Cheney and Australian Premier John Howard,
who had ignored Hicks for years, but was now
suffering in an election year as Hicks' plight
gained ever more support among potential voters.
After Cheney flew out to arrange the deal, it was
Susan Crawford who pushed through the plea
bargain at Guantánamo, working directly with
Hicks' defense lawyers and cutting Col. Davis out of the loop.
Col. Davis resigned on October 4, but it was not
until December, when he wrote an op-ed for the
Los Angeles Times, that his even more strenuous
objections to the role of William J. Haynes II
were revealed. With two months to refine his
anger, Col. Davis refused to pull any punches. "I
was the chief prosecutor for the military
commissions at Guantánamo Bay, Cuba, until Oct.
4, the day I concluded that full, fair and open
trials were not possible under the current
system," he wrote, adding, "I resigned on that
day because I felt that the system had become
deeply politicized and that I could no longer do
my job effectively or responsibly."
After pointing out that it was "absolutely
critical to the legitimacy of the military
commissions that they be conducted in an
atmosphere of honesty and impartiality," Col.
Davis explained that "the political appointee
known as the 'convening authority' -- a title
with no counterpart in civilian courts -- was not
living up to that obligation." As he described
it, Susan Crawford had overstepped her
administrative role, and "had her staff assessing
evidence before the filing of charges, directing
the prosecution's pretrial preparation of cases
(which began while I was on medical leave),
drafting charges against those who were accused
and assigning prosecutors to cases."
"Intermingling convening authority and prosecutor
roles," he continued, "perpetuates the perception
of a rigged process stacked against the accused."
After also criticizing Susan Crawford and Brig.
Gen. Hartmann for their desire to conduct trials
"behind closed doors," because "Transparency is
critical" and "even the most perfect trial in
history will be viewed with skepticism if it is
conducted behind closed doors," Col. Davis
directed his ire at William J. Haynes II. Noting
that he resigned "a few hours after" being
informed that he had been placed in a chain of
command under Haynes, he mentioned that "Haynes
was a controversial nominee for a lifetime
appointment to the US 4th Circuit Court of
Appeals, but his nomination died in January 2007,
in part because of his role in authorizing the
use of the aggressive interrogation techniques
some call torture," and pointed out, "I had
instructed the prosecutors in September 2005
[shortly after taking the job] that we would not
offer any evidence derived by waterboarding, one
of the aggressive interrogation techniques the administration has sanctioned."
Col. Davis was not the first prominent official
to refuse to be implicated in the use of torture
by US forces, of course, but while Attorney
General nominee Michael Mukasey was busy
equivocating horribly on waterboarding, skirting
the issue in October, when he told a Senate
Judiciary Committee, "if [waterboarding] amounts
to torture, it is not constitutional," Col.
Davis' attack on Haynes placed him, without a
shadow of a doubt, in the anti-torture camp.
His focus on Haynes was also unerring. Appointed
as the Pentagon's Chief Counsel in May 2001,
Haynes was a protégé of David Addington, Dick
Cheney's closest advisor and, arguably, the chief
architect of the administration's post-9/11
flight from the law, and as Senator Edward
Kennedy explained in a Washington Post op-ed in
2004, he "developed and defended three of the
administration's most controversial policies: the
refusal to treat any of the hundreds of prisoners
at Guantánamo Bay as prisoners of war under the
Geneva Conventions of 1949; the department's
military tribunal plan for trying suspected war
criminals; and even the incarceration of US
citizens without counsel or judicial review."
Not only involved in the development of the
concept of holding prisoners as "enemy
combatants" without charge or trial, and without
the protections of the Geneva Conventions, and of
playing a part in the process that led to holding
a US citizen, Jose Padilla, as an "enemy
combatant" on the US mainland, Haynes was also
deeply involved in the approval of "enhanced
interrogation techniques" for use at Guantánamo and beyond in 2002 and 2003.
In November 2002, Haynes advised Donald Rumsfeld
to approve the use of techniques that included
prolonged solitary confinement, 20-hour
interrogations, and the use of painful stress
positions, and liaised between Rumsfeld and
Alberto J. Mora, the head of the Naval Criminal
Investigative Service, in January 2003, when Mora
-- a principled opponent of torture, like Col.
Davis -- threatened to expose the
administration's use of the techniques. Bowing to
the pressure, Rumsfeld withdrew his
authorization, but once Mora was placated Haynes
oversaw a working group led by lawyer John Yoo
and Air Force general counsel Mary Walker, which
effectively reintroduced "enhanced interrogation
techniques" on the sly, creatively bypassing
international treaties banning the use of
torture, and invoking the President's "wartime"
authority to act without any oversight whatsoever.
Last week, in the wake of the announcement that
six "high-value" detainees were to be charged in
connection with the 9/11 attacks, Col. Davis
resumed his attack on the Commission process, and
on William Haynes in particular. When asked by
the Nation if he thought that the six men could
receive a fair trial, he related a conversation
with Haynes that had taken place in August 2005.
According to Col. Davis, Haynes "said these
trials will be the Nuremberg of our time " -- a
reference to the 1945 trials of Nazi leaders,
"considered the model of procedural rights in the
prosecution of war crimes," as the article
described them. Col. Davis replied that he had
noted that there had been some acquittals at
Nuremberg, which had "lent great credibility to
the proceedings." "I said to him that if we come
up short and there are some acquittals in our
cases, it will at least validate the process,"
Col. Davis remembered. "At which point, his eyes
got wide and he said, 'Wait a minute, we can't
have acquittals. If we've been holding these guys
for so long, how can we explain letting them get
off? We can't have acquittals. We've got to have convictions.'"
Having thoroughly exposed the preconceived notion
of guilt in the Commissions, which infects the
whole of the administration's post-9/11 detention
policies (in the tribunals at Guantánamo, for
example, condemned by former insiders for being
designed to rubberstamp the detainees'
designation as "enemy combatants" without testing
the "evidence"), Col. Davis' next trick was to
declare, the day after, that he would appear as a
defense witness for Salim Hamdan at his next
pre-trial hearing in April. "I expect to be
called as a witness," he explained, adding, "I'm
more than happy to testify," and describing his
decision, ominously for the administration, as
"an opportunity to tell the truth."
The final blow to the Commissions -- for now, at
least -- came yesterday, when, without even
attempting to address Col. Davis' allegations,
the Pentagon abruptly announced that William
Haynes was resigning as Chief Counsel, "to return
to private life." A spokeswoman said that he had
discussed leaving the administration "some months
ago" and had "decided to accept an offer to work in the private sector."
If you hear any squeaking, amid the deafening
silence from Haynes himself, I'd suggest that
it's the sound of another rat leaving a sinking ship.
is a British historian, and the author of
Guantánamo Files: The Stories of the 774
Detainees in America's Illegal Prison'. He can be
reached at: <mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk
522 Valencia Street
San Francisco, CA 94110
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