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Rigged Trials at Gitmo
By Ross Tuttle
20/02/08 "The
Nation" -- -- Secret evidence. Denial of habeas
corpus. Evidence obtained by waterboarding. Indefinite
detention. The litany of complaints about the legal treatment of
prisoners at Guantánamo Bay is long, disturbing and by now
familiar. Nonetheless, a new wave of shock and criticism greeted
the Pentagon's announcement on February 11 that it was charging
six Guantánamo detainees, including alleged 9/11 mastermind
Khalid Shaikh Mohammed, with war crimes--and seeking the death
penalty for all of them.
Now, as the murky, quasi-legal staging of the Bush
Administration's military commissions unfolds, a key official
has told The Nation that the trials are rigged from the start.
According to Col. Morris Davis, former chief prosecutor for
Guantánamo's military commissions, the process has been
manipulated by Administration appointees in an attempt to
foreclose the possibility of acquittal.
Colonel Davis's criticism of the commissions has been escalating
since he resigned this past October, telling the Washington Post
that he had been pressured by politically appointed senior
defense officials to pursue cases deemed "sexy" and of
"high-interest" (such as the 9/11 cases now being pursued) in
the run-up to the 2008 elections. Davis, once a staunch defender
of the commissions process, elaborated on his reasons in a
December 10, 2007, Los Angeles Times op-ed. "I concluded that
full, fair and open trials were not possible under the current
system," he wrote. "I felt that the system had become deeply
politicized and that I could no longer do my job effectively."
Then, in an interview with The Nation in February after the six
Guantánamo detainees were charged, Davis offered the most
damning evidence of the military commissions' bias--a revelation
that speaks to fundamental flaws in the Bush Administration's
conduct of statecraft: its contempt for the rule of law and its
pursuit of political objectives above all else.
When asked if he thought the men at Guantánamo could receive a
fair trial, Davis provided the following account of an August
2005 meeting he had with Pentagon general counsel William
Haynes--the man who now oversees the tribunal process for the
Defense Department. "[Haynes] said these trials will be the
Nuremberg of our time," recalled Davis, referring to the Nazi
tribunals in 1945, considered the model of procedural rights in
the prosecution of war crimes. In response, Davis said he noted
that at Nuremberg there had been some acquittals, something that
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,"
Davis continued. "At which point, [Haynes's] 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.'"
Davis submitted his resignation on October 4, 2007, just hours
after he was informed that Haynes had been put above him in the
commissions' chain of command. "Everyone has opinions," Davis
says. "But when he was put above me, his opinions became
orders."
Reached for comment, Defense Department spokesperson Cynthia
Smith said, "The Department of Defense disputes the assertions
made by Colonel Davis in this statement regarding acquittals."
"That he [Haynes] said there can be no acquittals will stain the
entire [tribunal] process," says Scott Horton, who teaches law
at Columbia University Law School and who has written
extensively about Haynes's conflicts with the Judge Advocate
General's (JAG) corps, the judicial arm of the Armed Forces,
which is charged with implementing the military commissions.
According to Horton, Haynes tried to cut the JAG corps out of
internal debates over the detention and prosecution of
detainees, knowing it was critical of the Administration's
views. In private memos and in public Senate testimony,
high-ranking officers of the corps have repeatedly expressed
concerns about the Administration's advocacy of "extreme
interrogation techniques."
"The JAG corps consists of a group of rigorous professionals,
but Haynes never trusted them to do their job," says Horton.
"His clashes have always had the same subtext--they want to be
independent, he wants them to do political dirty-work."
Haynes, a political appointee and chief legal adviser to Defense
secretaries Donald Rumsfeld and Robert Gates, was nominated in
2006 by the Bush Administration for a lifetime seat as a judge
in the Court of Appeals for the Fourth Circuit. But his
nomination never got out of committee, primarily because of the
opposition of Republican Senator (and former military lawyer)
Lindsey Graham and other members alarmed over Haynes's role in
writing or supervising the writing of Pentagon memos advocating
the use of harsh interrogation techniques the Geneva Conventions
classify as torture.
Currently, in his capacity as Pentagon general counsel, Haynes
oversees both the prosecution and the defense for the
commissions. "You would think a person in that position wouldn't
be favoring one side," says Colonel Davis.
Told of Davis's story about Haynes, Clive Stafford Smith, a
defense attorney who has represented more than seventy
Guantánamo clients, said, "Hearing it makes me think I'm back in
Mississippi representing a black man in front of an all-white
jury."
He adds, "It confirms what people close to the system have
always said," noting that when three prosecutors--Maj. Robert
Preston, Capt. John Carr and Capt. Carrie Wolf--requested to be
transferred out of the Office of Military Commissions in 2004,
they claimed they'd been told the process was rigged. In an
e-mail to his supervisors, Preston had said that there was thin
evidence against the accused. "But they were told by the chief
prosecutor at the time that they didn't need evidence to get
convictions," says Stafford Smith.
At the time, the military wrote it off as "miscommunication" and
"personality conflicts." And then there were changes in
personnel. "They told us that the system had been cleaned
up...but I guess the more things change, the more they stay the
same," says Stafford Smith.
The terrible irony is that even if acquittals were possible, the
government has declared that it can continue to detain anyone
deemed an "enemy combatant" for the duration of hostilities--no
matter the outcome of a trial. And most of the 275 men held at
Guantánamo are classified as "enemy combatants" while the
hostilities in the "war on terror" could be never-ending.
Says ACLU staff attorney Ben Wizner, "The trial doesn't make a
difference. They can hold you there forever until they decide to
let you out." The one person to be released from Guantánamo
through the judicial process, Australian David Hicks, pleaded
guilty. As Wizner wrote in the Los Angeles Times in April 2007,
"In an ordinary justice system, the accused must be acquitted to
be released. In Guantánamo, the accused must plead guilty to be
released."
Still, the trials serve a purpose for the government, in
providing the semblance of a legitimate judicial process.
According to defense attorneys involved--and many of the former
prosecutors, like Davis--the process is political, not legal.
"If someone was acquitted, then it would suggest we did the
wrong thing in the first place. That can't happen," says Horton
sardonically. "When the government decides to clear someone, it
calls the person 'no-longer an enemy combatant' instead of just
saying they made a mistake."
He adds, "For people like Haynes, justice is meant to serve the
party."
Copyright © 2008 The Nation
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