Guantánamo’s shambolic trials: Pentagon boss resigns, ex-chief prosecutor joins defense

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.

Camp Justice, the newly-built home of the Military Commissions.

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.”

Col. Morris Davis.

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?”

Brig. Gen. Hartmann was also 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.” Col. Davis promptly gave him a less than friendly farewell. “I hope it will open the door for some positive change in the military commissions, but there are a couple of others still standing in the way,” he said, adding, “At least the odds are very good that whoever takes his place will have a more collegial and less contemptuous relationship with the uniformed judge advocates.”

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 is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on the Huffington Post, CounterPunch and Antiwar.com.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).

For a sequence of articles dealing with the use of torture by the CIA, on “high-value detainees,” and in the secret prisons, see: Guantánamo’s tangled web: Khalid Sheikh Mohammed, Majid Khan, dubious US convictions, and a dying man (July 2007), Jane Mayer on the CIA’s “black sites,” condemnation by the Red Cross, and Guantánamo’s “high-value” detainees (including Khalid Sheikh Mohammed) (August 2007), Waterboarding: two questions for Michael Hayden about three “high-value” detainees now in Guantánamo (February 2008), The Insignificance and Insanity of Abu Zubaydah: Ex-Guantánamo Prisoner Confirms FBI’s Doubts (April 2008), Secret Prison on Diego Garcia Confirmed: Six “High-Value” Guantánamo Prisoners Held, Plus “Ghost Prisoner” Mustafa Setmariam Nasar (August 2008), Will the Bush administration be held accountable for war crimes? (December 2008), The Ten Lies of Dick Cheney (Part One) and The Ten Lies of Dick Cheney (Part Two) (December 2008), Prosecuting the Bush Administration’s Torturers (March 2009), Abu Zubaydah: The Futility Of Torture and A Trail of Broken Lives (March 2009), Ten Terrible Truths About The CIA Torture Memos (Part One), Ten Terrible Truths About The CIA Torture Memos (Part Two), 9/11 Commission Director Philip Zelikow Condemns Bush Torture Program, Who Authorized The Torture of Abu Zubaydah?, CIA Torture Began In Afghanistan 8 Months before DoJ Approval, Even In Cheney’s Bleak World, The Al-Qaeda-Iraq Torture Story Is A New Low (all April 2009), Ibn al-Shaykh al-Libi Has Died In A Libyan Prison, Dick Cheney And The Death Of Ibn al-Shaykh al-Libi, The “Suicide” Of Ibn al-Shaykh al-Libi: Why The Media Silence?, Two Experts Cast Doubt On Ibn al-Shaykh al-Libi’s “Suicide”, Lawrence Wilkerson Nails Cheney On Use Of Torture To Invade Iraq, In the Guardian: Death in Libya, betrayal by the West (in the Guardian here) (all May 2009), Lawrence Wilkerson Nails Cheney’s Iraq Lies Again (And Rumsfeld And The CIA), and WORLD EXCLUSIVE: New Revelations About The Torture Of Ibn al-Shaykh al-Libi (June 2009).

For other stories discussing the use of torture in secret prisons, see: An unreported story from Guantánamo: the tale of Sanad al-Kazimi (August 2007), Rendered to Egypt for torture, Mohammed Saad Iqbal Madni is released from Guantánamo (September 2008), A History of Music Torture in the “War on Terror” (December 2008), Seven Years of Torture: Binyam Mohamed Tells His Story (March 2009), and also see the extensive Binyam Mohamed archive. And for other stories discussing torture at Guantánamo and/or in “conventional” US prisons in Afghanistan, see: The testimony of Guantánamo detainee Omar Deghayes: includes allegations of previously unreported murders in the US prison at Bagram airbase (August 2007), Guantánamo Transcripts: “Ghost” Prisoners Speak After Five And A Half Years, And “9/11 hijacker” Recants His Tortured Confession (September 2007), Former US interrogator Damien Corsetti recalls the torture of prisoners in Bagram and Abu Ghraib (December 2007), Sami al-Haj: the banned torture pictures of a journalist in Guantánamo (April 2008), Judge Orders Release of Guantánamo’s Forgotten Child (Mohammed El-Gharani, January 2009), Forgotten in Guantánamo: British Resident Shaker Aamer (March 2009).