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Former Gitmo Chief Prosecutor: "It Just Became Unbearable." |
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This morning the Washington Post reports that the military commission set up to try terrorism suspects at Guantanamo Bay is moving at a glacier pace, and is unlikely to try any of the 9/11 suspects before George W. Bush leaves office.
Efforts to bring detainees before a court within the framework of the ramshackle 2006 Military Commission Act have been wrought with legal challenges and delays, over the rules of the proceedings, over whether evidence obtained using torture is admissible, over whether waterboarding is torture, over whether defense attorneys can access classified information that helps their clients, and even over basic technical elements like courtroom interpreting.
In seven years, not a single detainee at Guantanamo has seen a trial. The first full case, of Osama Bin Laden's former driver Salim Ahmed Hamdan, is scheduled to begin June 2nd, however, Hamdan himself stated last week that he wants no part of the commission:
In a 40-minute exchange with Navy Capt. Keith J. Allred, who is presiding over the case, Hamdan said that he would do anything to get into a regular American courtroom and that the military commissions process is a sham designed to trap him at Guantanamo Bay. He said his victory in a 2006 Supreme Court case, which forced the government to rewrite the rules for military commissions, was hollow because he has been incarcerated for seven years without any change in his conditions.
"I would like the law, I would like justice. Nothing else," Hamdan said.
Also at last week's hearing, the former chief prosecutor in the Guantanamo military commissions, Air Force Colonel Morris Davis, testified in defense of Hamdan, claiming the suspect was not getting a fair trial and that the proceedings of the commission have become deeply politicized. Davis resigned as chief prosecutor in frustration last fall after his policy of not admitting evidence obtained using waterboarding was abruptly overruled. In February he wrote in the NYT:
Virtues requiring caveats are not virtues. Saying a man is honest is a compliment. Saying a man is “generally” honest or honest “quite often” means he lies. The mistreatment of detainees, like honesty, is all or nothing…
We need to come to grips with the practice known as waterboarding,…Why a few others in positions of power still find it so difficult to admit the obvious about waterboarding is astounding. We can never retake the moral high ground when we claim the right to do unto others that which we would vehemently condemn if done to us…
Regardless of whether the technique has produced actionable intelligence, it did not produce reliable evidence with a place in our justice system.
In an interview with NPR following his testimony, Davis spoke of the Pentagon's interference in the proceedings, also suggesting that if the commissions do not make progress by November they may well be shut down:
NPR: You talked about political pressure that you said was being exerted on you as chief prosecutor. Why don't you describe what you mean?
Davis: Well, from the start there was I think a pervasive attitude that they were going to call this a military commission, but they didn't trust the military to run it. You had political appointees that seemed intent on outcomes and not doing justice. It just became unbearable.
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NPR: You also talked about specific timing of cases and you quote former Brig. Gen. Thomas Hartmann, who was in charge of the military commissions, telling you 'if we don't get some cases going before the election, this thing's going to implode.'Davis: That was a pervasive theme, not just from General Hartman but from a number of people…it probably reflects a reality, that if these things don't get moving before November then whoever takes the Oval Office is likely to shut it down….
"Likely to shut it down…" strikes me as a nice way of saying the new president will actually get to see the sham Americans have been operating down in Cuba, and will be horrified.
Last year Davis defended the conditions at Guantanamo in an op-ed piece in the NYT (criticized here by the Seminal) writing of the center's "professionalism," "humanity," fairness, and transparency. Having helped write the 2006 Military Commissions Act for trying these detainees, Davis has publicly stated his support for the commission and his belief in the detainees' guilt. Now he sits on the other side of the courtroom, challenging the proceedings he helped build.
Though Davis certainly deserves praise for standing up against the lack of justice in the proceedings, and specifically against the use of torture, he has voiced no criticism at the circumstances under which the detainees were captured and imprisoned, and their lack of due process. I respect his ethical principles, but he remains a part of the establishment responsible for perpetuating this embarrassment. Regardless of whether their trials can ever be fair, what will it take for Americans to undo the miscarriage of justice already done? What will happen in January, if the new president sees what is happening at Guantanamo and dissolves the commission? Will they try these suspects in civilian courts? Will they set them free? Will they do something so insufficient as, say, apologize?
At the bare minimum, we have an obligation to go relentlessly after those amongst our own ranks who perpetrated this injustice. As naive as it may sound, I can only pray that we will hear more of the Bush administration, and courtrooms, in the years to come.
