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From Chief Prosecutor To Critic at Guantanamo

By Josh White
Washington Post Staff Writer
Tuesday, April 29, 2008

GUANTANAMO BAY, Cuba, April 28 -- The Defense Department's former chief prosecutor for terrorism cases appeared Monday at the controversial U.S. detention facility here to argue on behalf of a terrorism suspect that the military justice system has been corrupted by politics and inappropriate influence from senior Pentagon officials.

Sitting just feet from the courtroom table where he had once planned to make cases against military detainees, Air Force Col. Morris Davis instead took the witness stand to declare under oath that he felt undue pressure to hurry cases along so that the Bush administration could claim before political elections that the system was working.

His testimony in a small, windowless room -- as a witness for Salim Ahmed Hamdan, an alleged driver for Osama bin Laden -- offered a harsh insider's critique of how senior political officials have allegedly influenced the system created to try suspected terrorists outside existing military and civilian courts.

Davis's claims, which the Pentagon has previously denied, were aired here as the Supreme Court nears a decision on whether the Military Commissions Act of 2006 that laid the legal foundation for these hearings violates the Constitution by barring any of the approximately 275 remaining Guantanamo Bay prisoners from forcing a civilian judicial review of their detention.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Davis said he wants to wait until the cases -- and the military commissions system -- have a more solid legal footing. He also said that Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "

Davis also decried as unethical a decision by top military officials to allow the use of evidence obtained by coercive interrogation techniques. He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."

He also said Hartmann took "micromanagement" of the prosecution effort to a new level and treated prosecutors with "cruelty and maltreatment." Hartmann, he said, was trying to take over the prosecutor's role, compromising the independence of the Office of Military Commissions, which decides which cases to bring and what evidence to use.

Davis, who initially defended the commissions process, testified that he resigned his position as chief prosecutor late last year as senior officials increased pressure on him to make decisions he thought were inappropriate. He now heads the Air Force Judiciary and plans to retire. Hartmann declined to comment on the proceedings through a spokesman, Air Force Capt. Andre Kok.

Hamdan, a Yemeni detainee who next month could be the subject of the first full military commissions case at Guantanamo Bay, listened intently to Davis's translated words through headphones, watching his former adversary make a case that the commissions are tainted.

But Hamdan, during the morning session, also appeared to show some evidence of mental deterioration, which his attorneys have ascribed to mistreatment and lengthy solitary confinement. He seemed in a daze as he was led into court in his khaki detention uniform.

He then engaged in a short, subdued rant to Allred about how he believes he is not being afforded human rights and would like to use the bathroom without soldiers watching him. He also tried at one point to get up from the defense table to leave the room. "I refuse participating in this, and I refuse all the lawyers operating on my behalf," Hamdan said. He returned for the afternoon session in traditional Yemeni garb and a sport coat and agreed to continue.

Independent legal experts have criticized the commissions process because its rules allow hearsay or coerced evidence with the approval of a military judge; defendants are barred from using habeas corpus petitions to force a review of their detention; and convictions can be decided by panels of serving military officers without a unanimous verdict, except in capital cases.

Davis's concerns, which he has previously raised with reporters, are more narrow: that the process has been subverted. He told the hearing that he thought Hamdan should be prosecuted for his alleged crimes and he said he "never had any doubts about Mr. Hamdan's guilt."

But he said that top military officials went around him when he was chief prosecutor, for example, to negotiate plea agreements, and that politicians forced him to press charges against Australian David Hicks even though he would have rather gone after other suspects first. When Hicks struck a secret plea deal that brought his release, Davis said he was not a party to it.

One of Hamdan's civilian attorneys, Joe McMillan, said after the hearing that Davis's testimony "calls into question the impartiality and independence of this court." Ben Wizner, a lawyer with the American Civil Liberties Union who has been tracking the commissions, said it "laid bare that from the start, this has been a political process and not a legitimate legal system."

A Pentagon spokesman, Navy Cmdr. J.D. Gordon, said Monday that officials declined to comment because the hearings are ongoing.

Staff researcher Julie Tate in Washington contributed to this report.

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