Gitmo Prosecutor: Why I Resigned

Matt Welch | December 10, 2007

Until two months ago, Morris Davis was the chief prosecutor for the military commissions at Guantanamo Bay. He resigned, "because I felt that the system had become deeply politicized," and writes about it in today's L.A. Times:

In my view -- and I think most lawyers would agree -- it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the "convening authority" -- a title with no counterpart in civilian courts -- was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective -- not predisposed for the prosecution or defense -- and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg's staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, 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, among other things.

Davis resigned "a few hours after" learning that the Defense Department had installed William J. Haynes, a backer of "the aggressive interrogation techniques some call torture."

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor's office, in my view, cast a shadow over the integrity of military commissions.

Whole thing here.

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Fluffy|12.10.07 @ 3:07PM|#

All of this will be ignored. Nobody gives a damn.

Nobody gave a damn when the guy who headed the Abu Ghraib investigations said the process was corrupted.

Nobody gave a damn when the FBI walked out of Guantanamo and refused to take any further part in it.

Nobody gives a damn.

lunchstealer|12.10.07 @ 3:10PM|#

Jesus Fluffy, you really know how to bring a guy down.

|12.10.07 @ 3:14PM|#

Frankly Fluffy, I don't give a damn...

BakedPenguin|12.10.07 @ 3:25PM|#

Damn.

|12.10.07 @ 3:28PM|#

Sorry if I missed some things, but what came of the SCOTUS case involving Gitmo from last week. Did they rule yet?

Big Nanny|12.10.07 @ 3:28PM|#

But dosen't the fact that these hearings are being put on by the Federal Government give them all the credibility they need?

What else do you people want?

|12.10.07 @ 3:29PM|#

If our government were half as competant or evil as it is made out to be, they would just release all of the prisoners down there back to Afghanistan. Make a big announcement of setting them free. Then put all of them on a "freedom bird" from GUITMO back to Kandujar. Meanwhile make sure that the plane had some fatal flaw in it that would cause it to crash and burn into the Atlantic an hour or so after takeoff. All the evidence sinks to the bottom of the ocean. Everyone laments the terrible tragedy and a few checks are written to the families of those killed. End of problem.

|12.10.07 @ 4:01PM|#

I say we implant tracking devices on all of them then set them free. After a while we leak the fact that we're tracking them, and see how they are treated by their al Qaida buddies.

|12.10.07 @ 4:03PM|#

Probably some lefty, Ivy college educated, ACLU type.

What? A decorated Air Force Colenol, you say? Must be a traitor then.

|12.10.07 @ 4:05PM|#

"I say we implant tracking devices on all of them then set them free. After a while we leak the fact that we're tracking them, and see how they are treated by their al Qaida buddies."

I like that one. If we are going to do a catch and release program, at least do an effective one.

Fluffy|12.10.07 @ 4:21PM|#

Personally, I think we should send Bush and Cheney to wash the feet of each prisoner with their own tears.

Then we should turn them over to the federal courts in Miami and whoever can't be convicted there should get to live on Bush's ranch, or maybe go on hunting trips with Cheney in Wyoming.

|12.10.07 @ 4:26PM|#

"Then we should turn them over to the federal courts in Miami and whoever can't be convicted there should get to live on Bush's ranch, or maybe go on hunting trips with Cheney in Wyoming."

Naw, I think they should get a position writing for Reason or at least an internship or something. Let them bunk with Weigel and Matt Welch.

lunchstealer|12.10.07 @ 4:32PM|#

"I say we implant tracking devices on all of them then set them free. After a while we leak the fact that we're tracking them, and see how they are treated by their al Qaida buddies."

Somebody's been watching Red Dawn one too many times.

|12.10.07 @ 4:40PM|#

It's good to see there are still people with integrity left; unfortunately, the only way to identify them is when they throw their hands up in disgust and walk away.

|12.10.07 @ 4:41PM|#

Snarky comments aside, lets look at what he actually says. Understand that the convening authority is not the judge or jury. The convening authority is the final say on what charges go to trial. In the military justice system, the convening authority is usually the commanding general. Every charge against a soldier must be approved or referred by him before it can be tried in court. The convening authority is supposed to honestly look at the evidence and decide if there is enough of it to justify a trial. The convening authority never convicts anyone. That is up to the judge or jury.

This guy's bitch is that Crawford came in and told him how to do his job and how charges should be drafted and what charges she was going to approve. Now that is not how the system usually works. The system usually works where the lawyers lay what they suggest to the convening authority and the convening authority says yeah of neah. Understand though that the convening authority has all of the power. He can tell refuse to refer charges until the lawyers give him exactly what he wants. He can also tell the lawyers what he wants and refer charges even if the lawyers tell him not to. He holds all the cards. The lawyers just advise.

Regardless of what happens, it is still up to the judge and jury or in this case the military commission to convict. So a convening authority can refer whatever he wants but if there isn't any evidence and the judge and jury do their jobs, he won't accomplish anything.

The idea that the convening authority must stay out of the charging decision is really not true, since the convening authority has all of the power and the lawyers have none of the power. My guess is that Crawford, being a civilian didn't act like a typical military convening authority and defer to the lawyers. She probably told this guy how to run his shop and what she was and was not going to be refereed. He being a Colonel with a big ego, didn't like that. Notice, he doesn't give any concrete examples of any unfair charges being refereed. He only whines about Crawford telling him what to do. If unfair charges are being referred and bad decisions being made, then he ought to be saying something and explaining just what those are. As it is, he does none of that. He just whines about a political appointee telling him what to do and implies things are unfair but never says how. He just says they appear to be unfair. Whatever that means. Well, too bad Colonel. Sometimes life is like that.

|12.10.07 @ 4:44PM|#

I don't think neoconservatives understand that there is supposed to be a sphere of government action that is insulated from politics.

Like prosecutors' offices. Or judges. Or the military. Or military prosectors' offices.

|12.10.07 @ 4:47PM|#

"""If our government were half as competant or evil as it is made out to be..."""

If that were true they wouldn't have need Gitmo.

|12.10.07 @ 4:49PM|#

"Like prosecutors' offices. Or judges. Or the military. Or military prosectors' offices."

Yeah Joe because liberals have never politicized judges. Honestly though, read my post above. The article is misleading. The convening authority could draft and refer the charges herself if she wanted to. That is just the way the system works for soldiers not just GUITMO people. If unfair things are happening, I am all ears. But what I am not all ears for is some Colonel whining about someone, who by the way has the authority to do so, telling him what to do.

|12.10.07 @ 4:58PM|#

John,

To simply claim life is unfair is a joke. I really doubt if you or your family or friends were falsely arrested and placed under that type of judical system, your response would be, that's the breaks, life's not fair.

|12.10.07 @ 5:00PM|#

"Crawford, on the other hand, 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, among other things."

That is just one big "WAAAAA I wanted to be king and she wouldn't let me". There is nothing to say that the convening authority can't do that if she so chooses.

"I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor's office, in my view, cast a shadow over the integrity of military commissions."

Notice he doesn't say that Haynes has ever introduced any evidence obtained from waterboarding or even that Haynes plans to do so. ONly that him and Haynes disagree. Well, what does Haynes have to say? What has really happened since he took over?

|12.10.07 @ 5:01PM|#

"To simply claim life is unfair is a joke. I really doubt if you or your family or friends were falsely arrested and placed under that type of judical system, your response would be, that's the breaks, life's not fair."

The convening authority does'nt convict. Read the post. She can refer anything she wants but that doesn't convict anyone. The whole article makes it sound like she does but she doesn't.

|12.10.07 @ 5:09PM|#

John,

Susan Crawford is a civilian. She replaced a Major General and is now the convening authority for the military tribunals at Gitmo. That doesn't raise your suspicions about political influence?

I remember F. Lee Bailey opining that he was guilty, he'd prefer the civilian justice system. If he was innocent, he'd prefer the military justice system. Funny, that.

"""The convening authority does'nt convict."""

It's not a question of conviction. Fairness can go to allowable evidence. If the convening authority allows all prosecution evidence and allows little or no evidence for the defense, when defense evidence exists. Or if the prosectuion is allowed hearsay but not the defense, in either case it would not be fair.

|12.10.07 @ 5:18PM|#

In the regular federal court system, the Judges have thrown out nearly all of the terrorist indictments brought against supposed Muslim "terrorists" for lack of any real evidence. It is likely that most of the ones at Gitmo would get off as well, for lack of evidence.

Fluffy|12.10.07 @ 5:19PM|#

John also glosses over the fact that this is not the first person to bail on the Guantanamo system, nor the first person to claim political interference and structural unfairness.

What about Lt. Colonel Stephen Abraham's allegations?

http://www.npr.org/templates/story/story.php?storyId=11330998

How many people have to break with this process in disgust before you'll decide there's more here than colonels with big egos?

|12.10.07 @ 5:20PM|#

I don't think neoconservatives understand that there is supposed to be a sphere of government action that is insulated from politics.

The big point of the so-called "Critical Legal Studies" movement (squishy Marxist deconstructionists go to law school) of my yoot was thta there was no sphere of government action that wasn't fundamentally political, especially the so-called "objective" judicial branch.

Fluffy|12.10.07 @ 5:29PM|#

How about Lt. Colonel Stuart Crouch's allegations?

http://rawstory.com/news/2007/Pentagon_blocks_testimony_of_fomer_Marine_1108.html

Damn, all these Colonels sure have big egos!

How about Lieutenant Commander William Kuebler's allegations?

http://business.timesonline.co.uk/tol/business/law/article2992285.ece

Bazil|12.10.07 @ 5:33PM|#

I hope you're joking John, otherwise you're a pretty disturbed individual.

"If our government were half as competant or evil as it is made out to be, they would just release all of the prisoners down there back to Afghanistan. Make a big announcement of setting them free. Then put all of them on a "freedom bird" from GUITMO back to Kandujar. Meanwhile make sure that the plane had some fatal flaw in it that would cause it to crash and burn into the Atlantic an hour or so after takeoff. All the evidence sinks to the bottom of the ocean. Everyone laments the terrible tragedy and a few checks are written to the families of those killed. End of problem."

That is either evil or "COMPETENT"?

man, that holocaust was one competent job them Nazis did huh?.... They got er done!

That's pretty... well... the word for it is Evil, if you can think so coldly about human beings. I hope that was a joke or a brain fart man.

|12.10.07 @ 5:34PM|#

"It's not a question of conviction. Fairness can go to allowable evidence. If the convening authority allows all prosecution evidence and allows little or no evidence for the defense, when defense evidence exists. Or if the prosectuion is allowed hearsay but not the defense, in either case it would not be fair."

The convening authority doesn't make those decisions, the judge decides admissibility.

Fluffy,

Maybe other people have legitimate gribes. My point is this guy doesn't seem to have any.

|12.10.07 @ 5:35PM|#

"That is either evil or "COMPETENT"?"

You would have to be pretty competent to pull that off, so I guess it is evil and competent.

GILMORE|12.10.07 @ 5:43PM|#

John

You are wrong on about every angle of this whole thing. Seriously. My dad was a marine lawyer. I asked him what he thought of the whole process, and he said something to the tune of, "it doesnt make sense. We have tons of simple procedures for military prosecutions and this one seems to dance around them all in some effort to appear like a trial, when in fact its far more like applying for a loan. The assymetry of access to information is inherently inappropriate to a situation where you have to rebut claims made by an authority that has complete power over you."(paraphrase)

FWIW, my dad resigned from the corps after visiting nam, and seeing how fucked up the whole prosecution of the war was. I dont think these people are whiners. They're the ones who believe in the rectictude of the military and are disgusted when they become pawns of politicians.

|12.10.07 @ 5:45PM|#

Bazil,

I don't think there's anything wrong with the evil and competent remark. I've made the same statement when laughing off Truthers and other conspiracy theorists.

I hope the next administration is a little less dedicated to ungood doing than this one is.

|12.10.07 @ 6:25PM|#

We have tons of simple procedures for military prosecutions and this one seems to dance around them all in some effort to appear like a trial

Not defending what goes on at Gitmo, but I think there are a lot of category errors in people's thinking on Gitmo. Don't forget, these detainees fall outside all the normal categories of military or civilian justice being illegal combatants.

I don't think these proceedings for finding cause to detain are supposed to be trials or anything like it. If we must analogize to something in our justice system, I think they're much more like grand jury proceedings, which the defendant is excluded from altogether.

|12.10.07 @ 6:27PM|#

If our government were half as competant or evil as it is made out to be, they would just ...

This reminds me of when Nick Berg got beheaded by terrorist "dead-enders" (remember them?) and some loon was saying that we shouldn't be critical of the Abu Ghraib scandal, since at least we weren't beheading people. Indeed, I wouldn't be surprised if it was you.

|12.10.07 @ 6:33PM|#

But RC, the problem is that we don't know if these people are truly illegal combatants, or combatants of any sort at all. According to the current procedures, anyone on the face of the Earth can be assumed to be an illegal combatant (and thus have no right to due process under either our Constitution or the Geneva Conventions) just because someone, somewhere says they are.

fyodor|12.10.07 @ 7:02PM|#

John,

The guy wasn't writing a book. And regardless of whether any improper charges have been referred to date in his particular opinion, the process is the important thing to maintaining the credibility of any judicial or political process. Your argument is comparible to saying, "So what if he's a dictator, show me where's he's made any bad decisions!"

I think the key passage to understanding what Davis is saying is:

"How can you direct someone to do something -- use specific evidence to bring specific charges against a specific person at a specific time, for instance -- and later make an impartial assessment of whether they behaved properly?"

Now whether Crawford is doing that specifically, I sure can't say. But his point is that it's improper procedure for Crawford to be doing that, and whether that has resulted in any improper charges to date is irrelevant.

Now if you think he's just full of shit and is whining because of a big ego rather than any legitimate gripe, you can think that. You haven't given any support for that, either.

Dave Woycechowsky|12.10.07 @ 7:08PM|#

Don't forget, these detainees fall outside all the normal categories of military or civilian justice being illegal combatants.

"On July 27, 2002, 15-year-old Khadr was in a compound near Khost that was surrounded by US special forces. According to Master Sgt Scotty Hansen of Utah, "we [sent] a couple of Afghan interpreters to go in and talk to them because we didn't want to be storm troopers unless we had to." The two interpreters were shot "point blank in the face," however, according to Sergeant Layne Morris, after which "all heck broke out," according to Hansen[6]. Sergeant Layne Morris was injured early in the skirmish. The Americans called in a devasting air strike, such that no survivors were expected. Khadr, however, survived and allegedly threw a grenade, which injured Sgt. Christopher Speer and led to his death, and injured three other members of the squad.[4] Omar was shot three times, and left nearly blind in one eye."

|12.10.07 @ 7:56PM|#

"Don't forget, these detainees fall outside all the normal categories of military or civilian justice being illegal combatants."

It amazes me, the gymnastics people still go through, to try to make the Bush Administration's stupid mistakes seem somehow both legal and smart.

We should have treated them as POWs. Even if they weren't, that would have been the smart thing to do.

I remember when the Clinton Administration always seemed to respond to questions about whether something was moral with an answer about whether it was legal--a clear indication, in retrospect, of just how immoral that bunch was. I'll never forget seeing the Bush Administration answer questions about whether something was smart with an answer about whether it was legal. ...what a clear indication of incompetence that was.

|12.10.07 @ 7:57PM|#

Legality is the last refuge of the unimaginative, the immoral and the incompetent.

|12.10.07 @ 10:20PM|#

The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Seems like Richard Gere was in movie sounded something like this a few years back. . . in some Asian country.

Any possible intel value that remains in Gitmo has long been lost. If you have legit proof of crimes worthy of tribunal, charge and try them; otherwise, turn 'em loose.

|12.11.07 @ 1:10AM|#

Not defending what goes on at Gitmo, but I think there are a lot of category errors in people's thinking on Gitmo. Don't forget, these detainees fall outside all the normal categories of military or civilian justice being illegal combatants.

I don't think these proceedings for finding cause to detain are supposed to be trials or anything like it. If we must analogize to something in our justice system, I think they're much more like grand jury proceedings, which the defendant is excluded from altogether.

RC, Very good point.

Did we hold military tribunals for the POWs that we captured during WWII? Did we hold those POWs in prison camps until WWII ended?

The one point the whiner made that I agree with is to exclude all evidence gathered using torture. As John points out though, he makes no claim that his successors will do differently.

|12.11.07 @ 1:22AM|#

Thanks for clarifying that. I have long wondered why GITMO is filled with vendors plucked off the streets of Singapore, and Hamburg.

|12.11.07 @ 1:27AM|#

Any possible intel value that remains in Gitmo has long been lost. If you have legit proof of crimes worthy of tribunal, charge and try them; otherwise, turn 'em loose.

This sentiment seems to summarize much of the thinking here. There is a functional problem with it though. If I am a soldier in Iraq, or Afghanistan and engage in a gun battle with opponents and some of them survive, then I am faced with a decision: do I take them prisoner only to face them again in six months after they have been fattened up and nursed back to health in the Carribean?

Juanita|12.11.07 @ 2:42AM|#

wayne | December 11, 2007, 1:22am | #

But RC, the problem is that we don't know if these people are truly illegal combatants, or combatants of any sort at all. According to the current procedures, anyone on the face of the Earth can be assumed to be an illegal combatant (and thus have no right to due process under either our Constitution or the Geneva Conventions) just because someone, somewhere says they are.

Thanks for clarifying that. I have long wondered why GITMO is filled with vendors plucked off the streets of Singapore, and Hamburg.

see Wayne understands aysymmetrical warfare. These prisoners are all proven to be afganistani's, and since Afghanistania is a battlefield all over, anyone who is suspected to be a terrorist their is probably a terrorrist anyway just like in Iraq and should be shot.

|12.11.07 @ 9:37AM|#

Susan Crawford is a civilian. She replaced a Major General and is now the convening authority for the military tribunals at Gitmo. That doesn't raise your suspicions about political influence?

Well, J sub D, liberals have appointed politcized judges. So there you go.

|12.11.07 @ 9:41AM|#

RC Dean,

The big point of the so-called "Critical Legal Studies" movement (squishy Marxist deconstructionists go to law school) of my yoot was thta there was no sphere of government action that wasn't fundamentally political, especially the so-called "objective" judicial branch.

I used to go in for that tripe, which is really comparable to the claims that there's no such thing as objective, straight journalism. I've come to realize that it's an excuse by people who are seeking to politicize the process themselves, and wish to excuse their dishonest actions.

|12.11.07 @ 9:48AM|#

RC,

Don't forget, these detainees fall outside all the normal categories of military or civilian justice being illegal combatants.

No, these are people ACCUSED of being illegal enemy combatants, and these are the hearings to determine whether they are, in fact, illegal enemy combatants.

You're a lawyer, RC. Accused vs. convicted, remember?

wayne,

We didn't hold trials for POWS because we were holding them as POWs. We could hold these guys as POWs, too. These hearings are held because we want to hold, and treat, these people NOT as POWs, but as criminals - and these are the "trials" that are supposed to try and convict them.

|12.11.07 @ 11:11AM|#

I used to go in for that tripe, which is really comparable to the claims that there's no such thing as objective, straight journalism. I've come to realize that it's an excuse by people who are seeking to politicize the process themselves, and wish to excuse their dishonest actions.

joe,

Agreed. And that's all the Crit movement (or similarly thinking folks) ever intended. It's an ends-justifies-the-means argument, and it's particularly galling when applied to science, justice, journalism, or any other human endeavor where facts and the truth are the goals.

As for the POW vs. citizen vs. terrorist dudes issue, well, I think the real problem is that we don't have a neat box to place the latter class in. This administration decided to get all arbitrary and capricious and to avoid the obvious move of pushing for legislation to define and establish an adequate due process regime for such persons. Bad move, both morally and politically.

|12.11.07 @ 11:35AM|#

To be fair, Pro Lib, that wasn't the entirety of the movement. Many Critical Studies thinkers did raise good points about underlying politics and dead hands.

It's the use to which some put those ideas that is the problem.

|12.11.07 @ 1:42PM|#

Fairness is for losers, joe. The Man can afford to be fair. The rest of us must claw our way to success, by any means at our disposal. That's the central tenet of Buddhism.

|12.11.07 @ 2:53PM|#

LoL!

That was so funny I googled it, because I figured it had to be from a movie.

I love it.

|12.11.07 @ 2:56PM|#

The last sentence is from a movie. here, let me recast it for you: "Otto, the central tenet of Buddhism is NOT 'every man for himself.'"

|12.11.07 @ 4:57PM|#

"""John I think we are both a little incorrect. I use these statements from the article.

""The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

""I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.""

To say the least, the convening authority does make some decisions about what evidence can be used. And if it's the CA authority to determine the request for experts, it can deny the defenses request for experts at a whim. So to say "The convening authority doesn't make those decisions, the judge decides admissibility." Is not really true, unless you accept the premise that the judge decides the admissibility of what the CA allows. However, I couldn't find anything to support the notion that the CA determines allowable defense evidence. I would say that it is likely, but I don't know."""

|12.11.07 @ 5:08PM|#

"""As for the POW vs. citizen vs. terrorist dudes issue, well, I think the real problem is that we don't have a neat box to place the latter class in."""

Sure we do, terrorism is a criminal act under U.S. code. Our problem is that we want to pretend it's not in some cases, but that it is in others. If the war on terror is real, then it's a war, and terrorist are prisoners of that war, therefore POWs. We don't have to reinvent POW everytime we have a new war. It's really simple, but you have people screaming tratior to you when you acknowledge the simplicity.

|12.12.07 @ 4:05AM|#

"We didn't hold trials for POWS because we were holding them as POWs. We could hold these guys as POWs, too. These hearings are held because we want to hold, and treat, these people NOT as POWs, but as criminals - and these are the "trials" that are supposed to try and convict them."

So, if we just call them PoWs, and don't torture them, then everybody is happy?

|12.12.07 @ 4:06AM|#

"Sure we do, terrorism is a criminal act under U.S. code."

What if the "act" is committed by an "army"?

|12.12.07 @ 3:58PM|#

Terrorism is not conducted by an army, but by civilians. Armies conduct acts of war. An important element of war is that both sides can kill, offensively and defensively legally.

If terrorism is really war, the terrorist have rights under the rules of war to attack us, we would not be able to put them on trial for a simiple act of killing, it would have to rise to level of war crime. I see terrorism as a criminal event that generates a wanted dead or alive poster. I should be able to rely on the CIA to act as a bounty hunter.

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