[Ppnews] Guantánamo - Pentagon Boss Resigns, Ex-Prosecutor Joins Defense

[Political Prisoner News]

http://www.counterpunch.org/worthington02272008.html

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.

Andy Worthington 
(<http://www.andyworthington.co.uk/>www.andyworthington.co.uk) 
is a British historian, and the author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
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




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