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
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
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
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?"
Brig. Gen. Hartmann was also 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
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 pretrial 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
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." Col. Davis promptly gave him a less than friendly
farewell. "I hope it will open the door for some positive change in the
military commissions, but there are a couple of others still standing in the
way," he said, adding, "At least the odds are very good that whoever
takes his place will have a more collegial and less contemptuous relationship
with the uniformed judge advocates."
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.