Patterico's Pontifications

2/21/2008

Former Chief Prosecutor at GTMO: Administration Is Rigging Trials to Ensure Convictions

Filed under: General,Terrorism,War — Patterico @ 11:58 pm

Demanding some basic level of fairness at Guantánamo (as I did in December) isn’t just for pinkos.

In June 2007, Morris Davis, an Air Force Colonel and chief prosecutor in the Defense Department’s Office of Military Commissions, wrote an op-ed in the New York Times titled The Guantánamo I Know. Like Stashiu, a former GTMO psyche nurse whom I interviewed here in 2006, Col. Davis defended GTMO against what he considered to be unfair attacks:

LINDSEY GRAHAM, a Republican senator from South Carolina, is right: “The image of Guantánamo Bay and the reality of Guantánamo Bay are completely different.” It is disappointing that so many embrace a contrived image. 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. It is a reality that has been all but ignored or forgotten.

Col. Davis explained that detainees are treated well, ridiculously well in many cases. They receive “culturally appropriate meals,” silence during prayer periods, and top medical care.

Like me, Col. Davis was no advocate of the view that detainees are entitled to all the same procedural protections that criminal defendants in the U.S. receive. He said that “the rights afforded Americans are not the benchmark for assessing rights afforded enemy combatants in military tribunals,” and added:

Some imply that if a defendant does not get a trial that looks like Martha Stewart’s and ends like O. J. Simpson’s, then military commissions are flawed. They are mistaken. The Constitution does not extend to alien unlawful enemy combatants. They are entitled to protections under Common Article 3 of the Geneva Conventions, which ensures they are afforded “all the judicial guarantees which are recognized as indispensable by civilized peoples.”

Col. Davis argued that military commissions offer the basic judicial guarantees: things like notice of the charges and evidence, a right to be present, a right to counsel, and a right to respond to evidence.

My point is that Col. Davis is not some pinko who wants to give every enemy combatant all the rights Earl Warren was able to think up during the course of his judicial career.

But in October of last year, Col. Davis quit, alleging that “[t]here was a rush to get high-interest cases into court at the expense of openness” because of the upcomng 2008 elections. According to the Washington Post, Col. Davis

said he felt a sense of expediency over thoroughness was taking hold and that efforts to use classified evidence — a controversial idea that has drawn congressional concern — could taint the trials in the eyes of international observers.

Col. Davis spoke for himself in an op-ed in the Los Angeles Times in December, arguing that the supposedly impartial convening authority was performing prosecutorial functions, and engaged in a headlong rush to present the very sort of secret evidence that Col. Davis had argued in his NYT op-ed was not to be used in the commissions. Col. Davis also butted heads with the new convening authority over the issue of presenting evidence obtained by waterboarding — a practice that I also have condemned as inappropriate.

In response to a rebuttal by his ex-boss, Col. Davis wrote a piece that made it clear that he still believed that GTMO is filled to the brim with dangerous terrorists who need to be tried fairly:

[T]here are some incredibly bad men at Guantanamo, including a few that I believe deserve to be executed if found guilty. The problems with the military commissions process do not negate their culpability.

I explain all of this by way of background, so that you will see that Col. Davis is not one of these “don’t be mean to the terrorists” style leftists. So we ought to pay attention to him when he tells The Nation, as he did in a piece published yesterday, that the trials at GTMO are rigged so that acquittals are impossible:

[A] key official has told The Nation that the [Guantánamo] trials have been 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 to foreclose the possibility of acquittal.

. . . .

[I]n 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, 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,” 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.'”

Col. Davis seems like a solid man. He says the Bush Administration is rigging these trials.

Everyone — not just liberals, but everyone who cares about fairness — should pay attention.

What Was the New York Times Thinking?

Filed under: 2008 Election,General — Patterico @ 8:01 pm

In a delicious irony, TNR runs a piece on that New York Times McCain story. The incomparable Allahpundit invites us to “savor the irony of TNR scolding another publication for not being diligent enough in its fact-checking.” Indeed. But the TNR piece is interesting.

In late December, according to Times sources, Keller told the reporters and the story’s editor, Rebecca Corbett, that he was holding the piece in part because they could not secure documentary proof of the alleged affair beyond anecdotal evidence. Keller felt that given the on-the-record-denials by McCain and Iseman, the reporters needed more than the circumstantial evidence they had assembled to prove the case. The reporters felt they had the goods.

So what changed? Anyone? Bueller? Bueller?

Jan Crawford Greenburg — an actual Big Media reporter! — asks:

The key here is that McCain did not advocate for anybody. So, after considering the facts of the case at the center of this entire episode–facts that were reported eight years ago–the real question becomes: How is this a story worthy of front-page treatment in the New York Times, after you’ve put aside the salacious, anonymous and unproven allegations that led the story?

Well?

Bueller?

P.S. Tom Maguire has a post that throws into comic relief Kevin Drum’s claim that waving off inconvenient old scandals as “old news” is a “a tactic that has almost a 100% success record with the mainstream media.” Turns out, a good portion of the New York Times‘s McCain “scandal” had already been reported by the New York Times . . . in 2000.

My Post-Debate Thought

Filed under: 2008 Election — DRJ @ 7:08 pm

[Guest post by DRJ]

Vodkapundit seems to think Hillary is preparing for a graceful exit, perhaps in the not-to-distant future. I agree. She passed on some obvious openings to confront Obama. Politically, she’s a realist pragmatist so she will want something in return for exiting gracefully.

Maybe we will see a Supreme Court Justice Clinton someday, just not the one everyone imagined.

— DRJ

Wow — With Obama-Supporters like these among the press, what more does McCain need?

Filed under: General — WLS @ 5:44 pm

[Posted by WLS] 

The Country, on the other hand, might just need a little of the cold water of reality in their faces. 

From this  piece by Boston Herald columnist Margery Eagan:

I’m an Obama girl and my man throttled Hillary Clinton, again, Tuesday night.

Suddenly, the impossible is real.

Suddenly, I’m nervous. Very nervous, actually.

I’m nervous because an otherwise normal grownup told me yesterday she’s watched the will.i.am (Black Eyed Peas) “Yes We Can” Obama video about 100 times and gets “weepy” every time.

….

I’m nervous because Harvard political genius Elaine Kamarck told me Hillary understands the various messes we’re in far better than Obama.

Suppose Kamarck’s right?

I’m nervous about the “O’Bambi” factor. Will the terrorists move in next door when Obama’s in the White House?

If you haven’t read it today, the best stuff is after the jump.

(more…)

Before the Texas Democratic Debate

Filed under: 2008 Election — DRJ @ 3:07 pm

[Guest post by DRJ]

Hillary Clinton and Barack Obama will debate tonight in Austin at a University of Texas gymnasium, which is why the spectators will be seated on orange chairs. The debate is moderated by CNN’s Campbell Brown.

Meanwhile, the candidates are resting at undisclosed locations after campaigning today in South Texas, Houston and Austin. Here’s an Austin American-Statesman pre-debate photo from Obama’s visit with UT football coach Mack Brown:

Obama at UT

The caption from the Statesman: “And then there’s this one, which the candidate might regret. He’s posing with Earl Campbell’s Heisman Trophy while making like Desmond Howard with the Heisman pose. (Hey, at least Earl could run to the right as well as the left.) Among college football fans, this might be like Dukakis in the tank.”

There are more pre-debate pictures of Obama here and another one here of Hillary Clinton wearing Longhorn burnt orange.

— DRJ

So Far As I Can Tell, The NYT Never Ran A Story On The Rumor That Hillary Might Have, Allegedly, Had A Relationship With An Aide Which Was Possibly Sexual, According To Sources Who Were Anonymous, But Said To Have Been Close To At Least One Former Aide Of A Staffer Who Once Drove Chelsea To The Airport

Filed under: General — WLS @ 11:19 am

But I hear the NTY is still trying to run the facts down.

If Hillary is elected President, they expect to have it nailed down to the comfort of their editors in January 2017.

How Obama Might Dance Away from His Public Financing Pledge

Filed under: 2008 Election,General — Patterico @ 12:01 am

I noted the other day that Barack Obama made a pledge that if John McCain is the nominee and accepts public financing, Obama will do the same — a pledge that Obama may come to regret, as the concomitant spending caps would require him to forego a significant fundraising advantage.

Via Kevin Drum we see Paul Waldman at the American Prospect suggesting a way for Obama to get out of his public financing pledge. The idea: weasel out by pointing at Republican 527s:

[Obama] can use the very well-funded Republican 527s as the lever to enable him to opt out.

The argument would go something like this: “I said I would ‘aggressively pursue an agreement to preserve a publicly financed election’ with my Republican opponent. And I’m happy to have our two campaigns sit down and see if there is a way to make the debate between me and John McCain, within the publicly financed system. But as long as there are ‘independent’ Republican groups out there planning on spending hundreds of millions of dollars attacking me, it would be pretty foolish to lock myself into a spending limit that makes it impossible to respond. So I ask Senator McCain: Can you call off the right-wing hit squad? If you can do that, I’ll be only too happy to say we should both accept public financing. But if you can’t, I’m not going to sign away my ability to compete.”

To their credit, many of the commenters see this as the dishonest dodge that it is. But one notes that the Messiah might be thinking about using it. Obama has a piece in USA Today that sounds an awful lot like the prevaricating nonsense that Waldman suggests for Obama:

I propose a meaningful agreement in good faith that results in real spending limits. The candidates will have to commit to discouraging cheating by their supporters; to refusing fundraising help to outside groups; and to limiting their own parties to legal forms of involvement. And the agreement may have to address the amounts that Senator McCain, the presumptive nominee of his party, will spend for the general election while the Democratic primary contest continues.

McCain replies that this is “Washington doublespeak” — either make the pledge or don’t. He has a point. And even Drum concedes: “For the record, I think Obama made a pretty clear promise to accept public financing in the general election as long as McCain did likewise, and the 527 dodge is just that: a dodge.”

But, Drum says, if Obama is going to renege on his deal, he needs to do it now: “If McCain tries to bring it up later, Obama can then wave it off as old news, a tactic that has almost a 100% success record with the mainstream media.”

Well, now, Kevin. That just works for Democrats! If you’re a Rethuglican, a 19-year-old scandal can be resurrected on the flimsiest of pretexts.

I don’t think Senator Obama has much to worry about, however he handles it. As you can see from this L.A. Times piece (as well as the NYT McCain non-story I just linked), Big Media has Obama’s back. He can wave it off whether he deals with it now — or later.


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