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
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 George W. 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
These positions led to international condemnation and a stalemate in the prosecution
of Guantanamo 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 administration's
military interrogation policies. A number of prominent military figures weighed
in against him, among them retired Rear 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
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 IPS, "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 said.
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, 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 was standing 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 Sheikh 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.
(Inter Press Service)