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.

91 Responses to “Former Chief Prosecutor at GTMO: Administration Is Rigging Trials to Ensure Convictions”

  1. I’m in agreement that these trials should be done fairly, but is hearsay via The Nation really damning evidence? Shouldn’t there be some discussion of how they’re rigged or evidence that they have been rigged instead of trying to build the entire case from a secondhand statement?

    Pablo (99243e)

  2. Colonel Davis needs to be listened to. If it was only one publication (The Nation) that he had gone on record with I might question the accuracy (remember TNR?), but he has been quoted in other publications as well without any claims of being misquoted. I would say that is more than hearsay.

    The commissions need to be fair and if a detainee is acquitted, so be it. Ensuring a guilty verdict to avoid a national embarrassment goes against everything we’re supposed to stand for as a nation. It’s also short-sighted stupidity. If anything shady actually occurs, it’s going to come out and the embarrassment will be even worse.

    Bravo Zulu to Colonel Davis for his courage. I’m afraid his career might take a hit for this. Here’s hoping that he gets some high-level protection for his integrity.

    Stashiu3 (460dc1)

  3. He says the Bush Administration is rigging these trials.

    Has he actually said the Bush Administration is responsible for this? I haven’t seen that anywhere, but I may have missed it. Pentagon general counsel William Haynes may have his own agenda and Colonel Davis may have come forth to shine some light on this.

    Stashiu3 (460dc1)

  4. Stashiu, my concern is that all we have in this piece is the assertion that the trials are rigged, based on nothing more than the second hand quote of Haynes. If there’s more meat on the bone, I’d sure like to hear about it. But it isn’t in this piece.

    I’m seeing some things about Davis’ concern with politics motivating the timing and sequence of trials, but as far as rigging is concerned, I’m not seeing anything but that Haynes quote.

    There’s a bunch of stuff here.

    Pablo (99243e)

  5. SCOTUSblog also has a good collection of articles and links to legal briefs.
    The Bismullah case is meeting up with Boumediene on the question of “fairness” or “objectivity” of the proceedings.
    It’s in the nature of the entity that captured an put a person in jail, that the jailing is justified. These are, according to many, “the worst of the worst,” and a trial amount to an after the fact formality.
    Calls for transparency are cast as “soft on terror.”

    cboldt (3d73dd)

  6. Many people mistake JAG officers like Col. Davis for real officers or soldiers. They are not. They are essentially uniformed lawyers, and they bring into the military all the pathologies of today’s law schools. They are neither trained nor acculturated as officers (they are exposed to a bare minimum of military culture).

    The JAGs constitute a monolithic and reliable fifth column for this nation’s enemies, and are the principal culprits in the substitution of ineffective “lawfare” for actual warfare.

    Davis is no different from the criminal-coddling judges of Massachusetts (such as Maria Lopez who resigned in the face of a recall for putting a child molester on house arrest in the victim’s building), and is a branch of the nihilistic tendency in the law exemplified by Lynne Stewart as continuing-legal-ed instructor.

    You can look long and hard for an example of a JAG officer working in the interests of the USA or his service. On the other hand, we have one Muslim JAG doing the Lynne Stewart at Gitmo; a string of JAGs bringing questionable prosecutions in a nonstop quest for American scalps (check the Staffel/Anderson case for a prime example); JAGs traveling the world at the expense of jihadi-funded “legal aid” slush funds to tear down the US in Ramsey Clark style; JAGs interfering in command decisions, keeping their terrorist pals alive to kill again.

    Davis would have hung Gen. Washington for hanging Maj. André. The law has ceased to be a bulwark of civilization and undermines it instead.

    Kevin R.C. O'Brien (d0a517)

  7. Colonel Davis resigned over it. That argues pretty strongly for believing Haynes said it and that single quote is damning. Any proceeding where acquittal is not an option is rigged. I just haven’t seen anything supporting that rigging was being done above General Haynes’ level.

    Stashiu3 (460dc1)

  8. You can look long and hard for an example of a JAG officer working in the interests of the USA or his service.

    I call bullshit. Not only on this, but your entire premise. I knew at least a dozen JAG officers who were excellent military officers and patriots. I did know one who couldn’t play golf because he didn’t know his [rear] from a hole in the ground, but there were nurses, doctors, and even a West Pointer I knew who would also fit that bill.

    Military JAG officers as a group are no different than any other officer Corps. Unless you can provide reliable documentation to support your broad smear, please take your delusions and peddle them elsewhere. I ain’t buyin’ it.

    Stashiu3 (460dc1)

  9. Like all conservatives, Patterico never disagrees with the Bush Administration. Michael Hiltzik said it, so it must be true.
    (Leftist Reality Distortion Field set to maximum).

    Bradley J Fikes (1c6fc4)

  10. The lawyers are fighting a different war. To see into the future of lawfare in the USA look what the lawyers achieved in Israel:

    The Triumph of Legal Defeatism.

    davod (5bdbd3)

  11. “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.”

    It sounds to me like Col Davis is suggesting that that the trials should be rigged so some of the detainees are acquitted.

    tmac (f985e6)

  12. Stashiu and all….

    … assuming that Davis’s statement about what Haynes said is true, what difference does it make? Haynes will not be sitting in judgment.

    The military has made it rather hard to have acquittals by releasing most of the tens of thousands of detainees that have been held since 2001. The ones remaining (as you well know) are the worst of bad actors, yet we’ve conceded so much ground, thanks to squishy JAGs.

    So Davis says to Haynes, as I read it, “Hey, we have to cut some of these guilty guys loose so that it looks good.” Who’s reprehensible here? At least Haynes wants actual justice to be done.

    – we’ve waffled on the death penalty, making it unlikely to stick.
    – we’ve refused to repatriate many of these guys to nations where they’re destined to get the summary process that their action as francs tireurs has earned them (for example, Chechens to Russia, IMU Uzbeks to Uzbekistan, or Uighurs to China).
    – we’ve let terror-sponsoring nations like Saudi Arabia engage the process by hiring counsel for their exported terrorists — imagine if the German spies in Ex Parte Quirin had a legal slush fund from the SS warehouse of gold teeth.

    These guys in Gitmo are like pedophiles: they are incarcerated pursuant to misconduct, and if released, it is a lead-pipe certainty that they will strike again. And like pedophiles, they have armies of lawyers who enjoy enabling their next spree, secure in the probability that the victim will be someone else’s kid.

    Hey, Maria Lopez is available — they just canc’d her TV show. Maybe that august jurist can go to Gitmo and enable something bigger than her usual sex perverts.

    Read about the liberation of Dachau and what became of the guards. And understand that Davis and his JAG crowd would have turned the guards loose and jailed the American liberators instead.

    Kevin R.C. O'Brien (d0a517)

  13. So Davis says to Haynes, as I read it, “Hey, we have to cut some of these guilty guys loose so that it looks good.”

    That’s a pretty tortured reading. How about reading it as it’s written… falling short of conviction is at least confirmation that the process is fair. Guilty people go free if the prosecution doesn’t prove its case, that is unless the prosecution is guaranteed a conviction. Saying that none of them can be acquitted is rigging.

    Stashiu3 (460dc1)

  14. “It sounds to me like Col Davis is suggesting that that the trials should be rigged so some of the detainees are acquitted.”

    That’s an unfair characterization. He was clearly looking for a silver lining: “if we come up short” at least that will add to the perception that it’s possible to be acquitted. Nowhere does he suggest that acquittals are necessary — just a fair chance at one.

    Patterico (1d3efa)

  15. They weren’t looking for a fair characterization of his words, just a way to spin them against him. I don’t think they realize how unlikely an acquittal is if the proceedings are fair. Rigging them is not only stupid, it’s unnecessary. I believe that is Colonel Davis’ biggest objection… in the unlikely event it happens, it’s still a positive thing. It doesn’t mean that if a detainee is acquitted at Guantanamo, it “is a lead-pipe certainty that they will strike again.” They would still have to be returned to their own country to face justice, accompanied by all the evidence we had obtained, to a court system with fewer rules than our own and little love for terrorists.

    Stashiu3 (460dc1)

  16. Colonel Davis resigned over it.

    According to this, he resigned because of issues with the command structure.

    The top military prosecutor for the Guantanamo war crimes trials has resigned his post, according to a US Department of Defense spokesman Friday. Air Force Col. Moe Davis requested a transfer from Guantanamo after complaining that an officer who served as legal advisor to the Convening Authority, who is responsible for running the trials, should not be supervising his work. A team of investigating experts assembled by the DOD found that the officer did have the authority to oversee Davis, but Davis had already requested a transfer before receiving the panel’s decision on Thursday.

    That seems to indicate a different problem that caused him to resign.

    Rigging them is not only stupid, it’s unnecessary.

    That, I believe. So why do it? And where is there any indication that it is happening?

    Pablo (99243e)

  17. “It sounds to me like Col Davis is suggesting that that the trials should be rigged so some of the detainees are acquitted.”

    I don’t know if he is saying the trials should be *rigged* to acquit some of the detainees. Rather, it sounds like Davis *doesn’t care* if he gets convictions or acquittals.

    Of course, Patterico’s implication that Haynes is saying the trials should be rigged is similarly complete nonsense.

    Haynes is clearly saying that he thinks that he thinks that the detainees are guilty and that a competent chief prosecutor would be able to convict them all. There is absolutely nothing in the Haynes statement that implies rigging *at all*.

    One wonders where in the world Patterico gets that implication.

    A.S. (09b2d3)

  18. I know at least a dozen JAG officers…

    In a near thirty-year Army career, I knew three who were interested in anything but making a name for themselves and frustrating line commanders. One who is still serving is just about rigid with frustration over this same issue (he’s a guy from a combat arms background before law school).

    I’ve personally experienced CONOPS stalled — and enemies let get away — because JAGs at CJTF 180 which was my superior HQ insisted on greenlighting every operation, but then were unavailable to review the conop except during business hours. Unless there was a leave to Europe or a shopping trip to Chicken Street, in which case, too bad, so sad.
    The situation has worsened instead of improved since then. Currently, every enemy KIA and every shooting triggers a 15-6 and starts winding up an Article 32.

    I’ve also seen JAGs at every level lusting for the scalps of American operators. If you were effective against the enemy, the JAG made himself your enemy. If that’s not aid and comfort, I’ll be damned if I know what is.

    Kevin R.C. O'Brien (d0a517)

  19. …after complaining that an officer who served as legal advisor to the Convening Authority, who is responsible for running the trials, should not be supervising his work.

    Three words: Undue.command.influence.

    In a near thirty-year Army career, I knew three who were interested in anything but making a name for themselves and frustrating line commanders.

    Thank you for your service. Let me guess, line commander? I understand the frustration, the tip of the spear is no place for lawyering. I would contend it’s more a consequence of liberal demagoguing leading to a CYA mentality than a blanket condemnation of JAG officers. Since every KIA and shooting seems to be fair game for liberals to cry “Murder!”, “Coverup!”, or just “The Horror!”, 15-6′s and Article 32′s become routine as a result. Any time they’re not done, the narrative of a coverup arises.

    Stashiu3 (460dc1)

  20. Looks like the polls are right, the Bush Remnant just got cut in half. What’s left are clowns who pretend “We’ve got to have convictions” (emphasis mine) is really a statement that “Surely competent prosecutors will secure convictions.” It would be funny, if it weren’t so sad.

    Guantánamo was intended as a playpen for Bush/Cheney’s unlimited authority. Power corrupts, etc.

    Andrew J. Lazarus (f89a8a)

  21. Does Haynes get to weigh in on this before we conclude that “the Bush administration” is subverting justice? He may have a different recollection of the conversation.

    I’m also curious as to why Davis concerns himself with the opinions of “international observers”. His job is (was) to prosecute, not worry what Amnest International whines about next week.

    Maguro (5d7381)

  22. Haynes is clearly saying that he thinks that he thinks that the detainees are guilty and that a competent chief prosecutor would be able to convict them all. There is absolutely nothing in the Haynes statement that implies rigging *at all*.

    Let’s look at this again… the actual words instead of how you’ve characterized them.

    ‘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.’”

    If you have to have convictions and can’t have acquittals it’s rigging. Read the words.

    Stashiu3 (460dc1)

  23. In the Haynes’ quote, it appears he aims to justify the convictions on the grounds of the duration of the detainee’s detention.
    .
    There is another outcome possible in each individual case, and that is removal of the detainee from “the prosecution system.” Either by relinquishing custody, or asserting that custody is incident to the conduct of war, i.e., they are POW’s, not illegal enemy combatants.

    cboldt (3d73dd)

  24. Three words: Undue.command.influence.

    Right. Not the same thing as “The trials are rigged.” or “I’m being ordered by my superiors to cheat.”

    Pablo (99243e)

  25. Pablo, I love ya man, I really do. Three more words though…

    Read.The.Quotes.

    (ok, two more)

    Just sayin’

    Stashiu3 (460dc1)

  26. Guantánamo was intended as a playpen for Bush/Cheney’s unlimited authority. Power corrupts, etc.

    Right, Andrew. When the media tells us that Bush is in Crawford, he’s actually at Gitmo poking poor, innocent Afghan peasants with a sharp stick. BECAUSE HE HAS THE POWER!!!

    Does it ever embarrass you to read the stuff you write?

    Pablo (99243e)

  27. “I’m also curious as to why Davis concerns himself with the opinions of “international observers”. His job is (was) to prosecute, not worry what Amnest International whines about next week.”

    Read the link at my 7:31 am post.

    davod (5bdbd3)

  28. Does it ever embarrass you to read the stuff you write?

    Bwahahaha!!! (Pablo, please ignore the troll my friend)

    :)

    Stashiu3 (460dc1)

  29. Stahiu, I love ya back. But where’s the beef? Better yet, where’s the trial rigging? A quote expressing a desire for a certain outcome does not a functioning conspiracy make. Even if the quote is accurate verbatim, where/how is the philosophy being put into practice? That’s what I’d like to see, and if I do I’ll be just as concerned as you are.

    Pablo (99243e)

  30. Pablo – a quote from the guy in charge saying we can’t have acquittals is a bit suggestive, don’t you think?

    aphrael (db0b5a)

  31. Suggestive, sure. Evidence, no.

    Pablo (99243e)

  32. Colonel Davis quit rather than put the philosophy into practice. Speaking out about it will help his replacement resist without having to resign. He needs to be supported.

    I wouldn’t call it a conspiracy, nor a policy of the administration. It’s more than a “desire” though, as quoted, it was a requirement… and a shortsightedly ignorant one at that.

    Stashiu3 (460dc1)

  33. I don’t see anything in that quote by the general that makes me think that convictions are being “rigged.”

    Maybe Colonel Davis has other evidence that makes the quote more damning, but just from the OP the general could just as easily have meant “if acquittals happen we’re screwed because we held them so long.” When I say “my car can’t break down today,” it doesn’t mean I’m doing anything in particular to make sure my car doesn’t break down. It means that it would be really, really bad for me if my car did break down, so it “can’t.”

    chaos (9c54c6)

  34. Nobody needs to do anything dishonest here. What’s needed are competent, ethical prosecutors who evaluate their evidence before bringing the case to trial. A voluntary dismissal should not count as an acquittal. And competent defense attorneys who roll the dice when the case is close but advise their client to plea when it’s clear that it’s a loser. But God forbid that lawyers either for the military or the prisoners should show the same competence, ethics and common sense as civilian prosecutors and defense attorneys.

    nk (7e270d)

  35. When the convening authority tells the prosecutor that acquittals can’t happen, it doesn’t imply wishful thinking. In the military culture, you’re being told that acquittals can’t happen. It doesn’t matter if we’re screwed for holding them so long (unlikely) and they’re acquitted, mandating a conviction is not the way to go.

    Stashiu3 (460dc1)

  36. Nobody needs to do anything dishonest here.

    Absolutely right.

    What’s needed are competent, ethical prosecutors who evaluate their evidence before bringing the case to trial.

    Without being required by the convening authority to bring the case forward.

    A voluntary dismissal should not count as an acquittal.

    We have a winner!!! I vote nk be appointed convening authority. He said it better than I ever could.
    :)

    Stashiu3 (460dc1)

  37. Isn’t the “convening authority” the commanding General or Admiral? I’m afraid that I’m woefully underqualified for that job.

    nk (669aab)

  38. Me too, but the pay would be nice and we know that mandating convictions is wrong. Whaddya say? I’ll take night shift, you take days?
    ;)

    Stashiu3 (460dc1)

  39. Nope. Sorry. Scrambled eggs without fruit salad would look ridiculous. I’ll vote for you, though.

    nk (669aab)

  40. Pablo: I think, in context, given what I know of military culture, that a “we can’t have acquittals” (from a commanding officer who is in charge of the proceedings) is enough to allow an *inference* of wrongdoing.

    it’s not enough to convict the guy, no. but it’s enough that we should be concerned.

    aphrael (e0cdc9)

  41. But seriously, there are people with top secret security clearances, such as former CIA Director James Woolsey, who are representing prisoners and have access to the classified evidence. Hopefully, they will bring some sense into the system.

    nk (669aab)

  42. “According to this, he resigned because of issues with the command structure.”

    Pablo, read the links in my post. If you had, I don’t think you’d be saying that. His “issues with the command structure” were specifically having to serve under a guy who wasn’t running things fairly.

    Patterico (f148b1)

  43. The resignation was because of unseemly haste, a pressure to get to trial that he thought would preclude resolution of the hard questions, like how to use or not use confidential testimony. But the rigging allegation is a whole different deal. I haven’t read all the original articles and all the links – this isn’t worth another master’s thesis to me – but it sure strike me as a non sequitur. A Pentagon lawyer doesn’t think the government can “afford” acquittals – therefore the trials are rigged. Huh?

    Correct me if I’m wrong, but there are a WHOLE LOT of other folks who would have to be involved in rigging a trial, aren’t there? And given the recent track record for keeping government conspiracies a deep dark secret, how many people do y’all think are going to be willing to sign on to the consequences, just to prevent the Pentagon’s General Counsel from being embarrassed?

    Don (24360c)

  44. I call BS on Patterico’s thread here. I’ve spent 16 years in a prosecutorial position with the federal government, and Davis’ complaints about political appointees are shopworn.

    I bet if you could get Davis’ voting history you’d find he’s a Democrat.

    He quit because he chafed under what he perceived as political appointees invading his area turf. In military parlance, as senior officer came into his AO and and told him to “Git er done.”

    When Gen. Hartwell — a senior General Officer to whom Col. Davis was obligated by rank to answer to — assumed his position, Hartwell came to it with a view on how the prosecutions should be run. Davis clearly says that in his view Hartwell as meddling in an arena where Davis had previously held sole authority. And Hartwell had the stars on his uniform. So Davis quit.

    Davis claims that Hartwell was doing the bidding of Haynes and the political appointees of the Pentagon, and then trots out the comments by Haynes that are quoted above about not having any acquittals.

    You know what, my boss, the US Attorney, would have the same reaction if I said to him, “You know, it would be a good thing to have a few acquittals in the coming year because then the world would be convinced of the fairness of our system.”

    His response would be, “You better not have acquittals if they call into question why you indicted the case in the first place. That means you’re fucking up your job by not winning cases you should be winning. If there are some cases that warrant acquittals, then they warrant dismissals now, and an explanation as to why you indicted them in the first instance.”

    I think the perspective being expressed by Haynes in the comments Davis complained about is simply that the “close” or doubtful cases have already be dealt with. Hundreds of ex-detainees have been sent back to their home countries or released. Those remaining at GITMO have been called the worst of the worst — the one’s against whom the evidence is the strongest.

    If the Chief Prosecutor tells his boss, “Well, a few acquittals would sure make us look fairer”, in the context of those remaining for trial, his boss would be justified in saying “Thanks for your view. I think I’ll hire someone who would rather have a 100% conviction rate to show that we knew what we were doing.”

    To say this is evidence the outcome has been “rigged” is bullshit.

    WLS (68fd1f)

  45. I knew I shouldn’t have commented. WLS said it better than I could have, but I just wanted to use “non sequitur”.

    You know, if Davis had just not used the word “rigging” his concerns about the prosectution might have been a lot more credible.

    Don (24360c)

  46. how many people do y’all think are going to be willing to sign on to the consequences, just to prevent the Pentagon’s General Counsel from being embarrassed?

    Exactly. It’s so obvious that isn’t it likely to be objected to early on, as in by the guy being told to do it?

    WLS, isn’t there a difference between being told to “indict if you’re certain of conviction or dismiss if you’re not” and “this is who is indicted and you will get a conviction”? Colonel Davis didn’t say that he wanted to see acquittals, he specifically said that, “if we come up short and there are some acquittals in our cases, it will at least validate the process”. I think that’s a big difference.

    The argument that we have already vetted or repatriated any who might not be found guilty doesn’t hold any water. Why have trials or tribunals then? Since they’re still there, assume they’re guilty, right? If we do that, then Gitmo becomes what the liberals have always claimed. Forget that. Hold the trials and let the chips fall where they may. If some are acquitted, deal with it then based on the specific circumstances. Mandating a 100% conviction rate? Best not happen.

    Stashiu3 (460dc1)

  47. WLS has taken the time to wrote the more credible explanation of this brou hah hah.

    Look to Davis being on a Democratic ticket soon. Either that or in the next Democratic administration in maybe 2020.

    davod (5bdbd3)

  48. 1st impression, and last comment from me…

    To me, it sounds like the good Col. was called into his boss’s office, and told to get his ass in gear; that the Army didn’t have the luxury of jotting i’s and crossing t’s to the same degree as would be found in the Dist Crts.

    I would think it would be easily stated:
    If you have a case, file it. If you don’t, drop it. If you don’t like it, quit!

    Another Drew (f9dd2c)

  49. The issue between Davis and Hartmann involved which prisoners would be “indicted,” and the “order” or timing of those “indictments.” Very few of the prisoners at GTMO have been charged.
    .
    The history of the Davis/Hartmann dispute was reported in plenty of detail for anybody who cares to look it up.

    cboldt (3d73dd)

  50. Plus, Davis did quit. Ergo, all is well with that part of the system (power struggle between Davis and Hartmann). The cases ought to have a voice of their own from here on out.
    .
    I think it’s valid to be concerned about the impression left by a secret proceeding, where the only public manifestation is the execution of the death sentence. But, that’s a political decision well above my pay grade.

    cboldt (3d73dd)

  51. Col. Davis and Gen. Hartwell were interviewed this morning on NPR this morning.

    Davis’ complaints were the statement by the DOD civilian general counsel, Haynes, that “we can’t have acquittals” and the use of evidence obtained by waterboarding.

    Gen. Hartwell said that since Davis has resigned 10 detainees have been formally charged as opposed to a smaller number under Davis. (Two if I recall correctly). Hartwell denied any effort by Haynes to improperly influence the outcome of the trials. He also said that the military judge will rule on the admissibility of evidence.

    Stu707 (adbb5a)

  52. The linked article is titled “Rigged Trials at Gitmo.” But after reading it, I don’t understand the supposed mechanism by which the trials are supposed to be “rigged.”

    If a football coach says, “We’re going to have a great season and we’re going to win all our games,” I don’t infer from that statement that he’s willing to bribe the officials or take out Mafia contracts on opposing quarterbacks.

    I don’t know, nor much care, about the political affiliation of anyone involved because I haven’t seen a credible theory articulated as to how the rigging is supposed to happen.

    For what it’s worth, I’ve practiced in venues in which I am convinced to a moral certainty that certain results in some civil cases genuinely, positively were “rigged,” in the very worst sense of that word (meaning bribes and threats of violence). And I could tell you exactly how it happened, and name some names, and show you some compelling circumstantial evidence; but the direct evidence to prove what happened has been methodically buried.

    But I’ve also practiced in venues in which there were strong intrinsic disadvantages for one side or the other — e.g., counties whose jury pools overwhelmingly were skewed against big out-of-state corporations, with judges whose sympathies ran in the same direction and who made virtually all discretionary rulings in favor of the plaintiffs — where defense wins were so uncommon that some people thought the results were “rigged” — and yet they weren’t really. Occasionally a defense verdict would squeeze through. And as a consequence, the best defense lawyers, by raising the probability of a defense win from “very unlikely” to “fairly unlikely,” could still earn their fees and greatly influence the value at which their cases settled.

    I don’t have first-hand experience with courts martial, but my strong hunch is that the fact-finders in these commission trials — while perhaps tending more toward a “law and order” point of view than, say, the average panel picked in downtown Los Angeles — are going to include some strong independent thinkers who would be ready to punch out your lights if you suggested to them that their votes had been “rigged” or predetermined.

    Beldar (61805b)

  53. But after reading it, I don’t understand the supposed mechanism by which the trials are supposed to be “rigged.”

    Patterico provided one suggestion: by allowing confessions obtained by torture (or whatever euphemism you will) to be used. The standard for admissibility of evidence isn’t going to be set case-by-case by independent-minded thinkers; it will apply to the entire process. Second, the admissibility of classified evidence that will not be available to the defendant to rebut will apply to the entire process, and remarkably Patterico mentioned that already, too! If you can’t figure out how the Administration can (and probably will) rig the outcome, you just aren’t trying very hard.

    The argument that we have already vetted or repatriated any who might not be found guilty doesn’t hold any water. Why have trials or tribunals then? Since they’re still there, assume they’re guilty, right? If we do that, then Gitmo becomes what the liberals have always claimed. Forget that. Hold the trials and let the chips fall where they may. If some are acquitted, deal with it then based on the specific circumstances. Mandating a 100% conviction rate? Best not happen.

    Perhaps, Stashiu, it is time to admit that many “conservatives” envision Gitmo as exactly the sort of place liberals have been complaining about—they just want and like it that way.

    Andrew J. Lazarus (fb2ffe)

  54. Perhaps, Stashiu, it is time to admit that many “conservatives” envision Gitmo as exactly the sort of place liberals have been complaining about—they just want and like it that way.

    I will readily admit that. Many (more than three at least, probably more than three-dozen) ;) conservatives do think Gitmo should be “harder”. That doesn’t change the fact of what Gitmo currently is. It’s not a gulag or torture center. Perhaps it is time for you to admit that? I mean, isn’t it unlikely this debate would even be occurring at a gulag? Just sayin’

    Stashiu3 (460dc1)

  55. Stashiu, AFAIK we don’t conduct waterboarding at Gitmo, so it isn’t a torture center. But it’s part of a corrupt system (that includes torture performed elsewhere), and one of the ways in which it is corrupt is the inability of detainees to defend themselves from the charge that they are some sort of terrorist or unlawful combatant. For the Bush Remnant, this is a feature, not a bug.

    Andrew J. Lazarus (1763b8)

  56. To Stashiu — not a line commander, SF NCO. I’ve worked at FOB, CJSOTF and team level in the current unpleasantness, and I’ve formed my low opinion of the JAG corps from direct interaction.

    We might come out ahead if we let the terrorists go and put the JAGs in Gitmo. I’d stop short of waterboarding, though… it might break through their sense of entitlement.

    My team put exactly one of those guys in Gitmo. He has confessed to over 200, maybe 300 murders — not things he did in his role as a TB functionary, but stuff he did because he didn’t like the cut of someone’s jib, or because the guy had something (a woman, a Toyota) that he wanted. He popped one guy because there was a rumor he had money buried in his yard and the guy wouldn’t tell where it was. After digging up the yard, he felt bad about this killing because there was no money. If there had been money, he’d have been cool with it.

    By our standards, a strange person.

    In retrospect we should have shot him like a dog, because Col. Davis and his merry men are determined to turn him loose, and probably will succeed in doing so.

    You saw these guys in their cages and they were… what, problematical? I saw them in their element and they were a nightmare… not for us, by our standards they were pathetic, but for the poor wretches that have to live in that broken land.

    I take the rule of law seriously, because I came into a place where the only law came out of the barrel of a gun for nearly two generations (in their reckoning; about 28 years in ours). Force majeure, might makes right. And every once in a while you’d see some artifact of the nation that was there before, a bit of a shattered terrace or an old post-card, and you realize just how thin a thread it is by which civilisation hangs.

    But the answer is not to impose our dysfunctional, pettifogging, procedure-über-alles court system on the military. There’s a serious agency problem in American law: like any organization, in time it has come to be run for the benefit of those running it without regard to its ostensible purposes. The answer is to use the mechanism by which civilisation has consistently defended itself against barbarism. That mechanism is the sword, and against the barbarian who rejects the ancient moral code of ethical warfare its use should be summary. Successful and confident societies, which included ours until the end of the 2nd World War, have never shrunk from excising cancerous cells.

    What was done with Quirin?

    What would Davis have done with him?

    Kevin R.C. O'Brien (d0a517)

  57. KRCO’B…
    Straight talkin’, Sarg!

    I particularly appreciated that bit about “…break(ing) through their sense of entitlement…”.

    Too bad we can’t take line officers and/or NCO’s and send them to law school, instead of trying to turn law school grads into officers. Too much cultural baggage.

    Another Drew (8018ee)

  58. In retrospect we should have shot him like a dog

    Not really going to argue with that because he certainly would have tried the same. Once he’s at Gitmo though, different rules have to apply.

    But the answer is not to impose our dysfunctional, pettifogging, procedure-über-alles court system on the military.

    Got to agree with that as well. Get the intel, get the trial done, move them out… head first or feet first, whatever’s appropriate.

    What was done with Quirin?
    What would Davis have done with him?

    I think Colonel Davis would have done the same thing with Quirin as was done back then. I’m all for letting the operators have control over the operations. This seems to me like someone in the Senate trying to micromanage one of your field-ops in realtime… it would truly be goat-screwed. If they had told Davis to “get it done” without all the ancillary political guidance, my impression is you would have liked the outcome. But when you hamstring someone, then tell them they have to beat their personal best PT score and falling short is not an option, they’re pretty much between a rock and a hard place. Going with what you believe is right in that situation will make sure you catch it from all sides, which he has. I’m just not convinced he acted in bad faith here.

    BTW, I think I might know who you’re talking about. Should have shot him like a dog.

    Stashiu3 (460dc1)

  59. Some of us like dogs.

    Perhaps we should modify that to “rabid dog”?

    Another Drew (8018ee)

  60. Should have shot him like a dog rabid dog.

    ;)

    Stashiu3 (460dc1)

  61. This is where I like to step out of the way and let you folks have your say. Interesting stuff.

    Stashiu, as always, my respect for you increases with every contact. You’re the real deal, but and you care about fairness. The strikeout is deliberate and no second thought: fairness *results* from being the real deal. It’s not something that happens by accident.

    Patterico (4bda0b)

  62. In response to my observation that the article doesn’t explain “the supposed mechanism by which the trials are supposed to be ‘rigged,’” Andrew Lazarus (#53) says:

    Patterico provided one suggestion: by allowing confessions obtained by torture (or whatever euphemism you will) to be used.

    But that exactly illustrates my point. Less strict rules of evidence may indeed tend to affect outcomes broadly. But they don’t guarantee a conviction. I’m sure my friend Patterico could regale us with tales from his personal knowledge (probably from other prosecutors he’s watched) in which defense counsel in regular criminal proceedings have tried, but failed, to suppress confessions on grounds that they were involuntary; the evidence of the confession has been duly introduced; and the jury has nevertheless refused to convict.

    Look, there are lots of countries around the world that we generally consider to be “civilized” in which there are nowhere remotely close to the same procedural protections that we treat as fundamental in the United States. Get yourself into serious trouble in Canada, Mexico, France, Japan, or Singapore: You may not find yourself in the middle of “Midnight Express,” but it’s not going to feel much like an episode from “Law and Order” or “Perry Mason” either.

    It’s indeed challenging, in any context, to fine-tune the balance of individual rights against competing concerns, whether across the board (as when you’re creating or reforming the system) or in individual cases. But it’s inaccurate — and disingenuous — for someone to insist that something is quote-unquote “rigged” when his argument is really only that he thinks a different balance ought to have been struck.

    Some people insisted that the outcome of this year’s Super Bowl was a foregone conclusion, and that the poor Giants were over-matched and out of their league. Their opponents were even documented cheaters from earlier in the season. But ya know, they actually played the game, and sure enough … some people got a big surprise.

    If Davis doesn’t have more steak to go with the sizzle of a senior officer’s line that I suspect he’s plucked out of context, then he’s got nothin’ to show that anything’s been truly “rigged,” and indeed, he’s lowered his credibility with me in terms of making his policy argument that a different balance ought to have been struck.

    Beldar (61805b)

  63. Comment by Patterico — 2/22/2008 @ 11:00 pm

    Thank you sir, that means a lot coming from you.

    But they don’t guarantee a conviction.

    In looking for a definition of rigged in this context I found that it does specify a guarantee in outcome (and out of context, the imperfect castration of several types of animals… ugh. That didn’t have anything to do with the topic but was sufficiently odd that I feel compelled to mention it, heh) which in my opinion insisting on a 100% conviction rate seems to do. That is, if the quote is accurate. If not, or if taken out of context, then as you say there needs to be a little more steak with the sizzle. Out of the official rebuttals, I haven’t seen any that contend the quote isn’t accurate, just that Colonel Davis’ motivations are other than what he claimed. Attacking the messenger to distract from the message (not you, but others on this thread and elsewhere).

    Your other points are well-taken assuming the quote is inaccurate in either substance or context. I’m not sure they rise to the level of demonstrating a lack of good faith in Colonel Davis’s objections, but they are certainly an accurate summary of the difficulties the convening authority faced in coming up with the tribunal procedures.

    But ya know, they actually played the game, and sure enough … some people got a big surprise.

    Well, if you’re gonna get nasty… ;)

    Stashiu3 (460dc1)

  64. Military trials as a general rule aren’t fair. The lower the rank, the less fair they get.

    Suspect Mr Davis had no trouble railroading US military members. Now here’s his big chance to “make a name” for himself, write a book, do the talk shows, speaking engagements for cash degrading the military.

    And of course the timing with the election this fall had nothing to do with it.

    Gerald A (0cf74e)

  65. Less strict rules of evidence may indeed tend to affect outcomes broadly. But they don’t guarantee a conviction.

    Well, in your sense nothing would “guarantee” a conviction, as there is always some possibility that no matter how ridiculous the trial the jury will acquit. Short of outright ordering the jury members to convict, is there anything that would count as “rigging” to you?

    Do you think the Giants would have won if the referees were instructed that we “must have a 19-0 team”?

    Andrew J. Lazarus (1763b8)

  66. Suspect Mr Davis had no trouble railroading US military members.

    Wow, you sound bitter. Wonder why.

    Anything about the topic at hand? Besides suspicions for which you have no basis in fact?

    Stashiu3 (460dc1)

  67. OK, I’ve cooled down, and I’ll accept Another Drew’s and Stashiu’s “rabid” correction.

    You guys don’t think I shoot ordinary dogs do you? In fact, thereby hangs a tale that isn’t germane here. But the dog lived and as far as I know is still merrily biting people in the Hazarajat.

    I wonder if what is happening with the whole COL Davis controversy is that a misunderstanding inflamed different emotions between different men. I mean, I’m not even involved in these decisions but I bring a ton of baggage to my arguments (I think the worst lawyer Pat has ever seen could get me tossed from any jury as biased). The people at TNR and the Nation have their pre-existing framework into which the whole thing fits; so do the people at NR and the Weekly Standard, it’s just a different framework.

    Reasonable men can have vastly different opinions on the merits of incarceration or execution; on whether it’s humane to hand over terror suspects to nations that have few protections; even, as Beldar’s quick tour of international law suggests, on whether a system without our extreme post-Warren-court pro-defendant bias can be called “due process.”

    Many Americans assume that our legal and Constitutionally-protected rights are universal. This bubble bursts when you learn about “D Notices” in British national-security law, or the role of French judges, or where an Ataturk joke or an insult to the King of Thailand can land you, or who feeds pretrial prisoners in Suriname. (Answer to the last: their families. Or they starve). You want to see drumhead justice, check out the special Gun Courts of Jamaica. “Life in prison. Next!”

    Even sharia isn’t standard. There are, IIRC, six mainstream schools of Islamic law (four Sunni, and two Shia).

    Not only are there all kinds of laws on the face of this earth, there’s incredible variety inside the USA. Try facing an administrative law judge in a regulatory enforcement proceeding. It makes the military tribunals look like mock court in some exceedingly effete law school. Ask a dad who wound up in family court in any jurisdiction in America.

    By the way, the Army’s continued descent from the manly art of warfare to the decadent state of lawfare continues. They have given the top JAG a third star. They are pushing lawyers into combat units as low as battalion level, where they undermine command unity, much like the commissars did in the old USSR. The Army now has more lawyers — at their best, useless mouths to feed, and at their worst, enemy collaborators — than it did at the height of the Cold War. When the Army was over double the size. (Looks like the law schools’ counter-recruiting tactics are failing, eh? Pity.) Indeed, there are more lawyers on active duty now than on V-E day.

    We had that one won at about three years and eight months. You could probably set up a multiple analysis of variance with: percentage of lawyers, length of war, and victory/defeat status… bet the correlation would be stronger than most celebrated social science correlations, and we all know in which direction.

    As Stashiu says, I’m just sayin’! I know that the lawyers are not a sole cause of our current struggles, and whether they’re causative or symptomatic is not a question that statistics can answer. Or me, for that matter… not that that prevents me from stating my opinion in the starkest of terms.

    Thanks for the engagement on this subject, all. Thanks particularly to our gracious host for letting us have this bare-knuckle brawl in his comments section. You da man! I promise not to whack anybody in LA — you need the free time to blog.

    Kevin R.C. O'Brien (d0a517)

  68. Patterico,

    Pablo, read the links in my post. If you had, I don’t think you’d be saying that. His “issues with the command structure” were specifically having to serve under a guy who wasn’t running things fairly.

    His complaint, or at least his formal complaint is exactly as you said it is: “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…” based on the supervision of his work. The further complaints, that there was a rush to prosecute the sexiest cases first instead of the best ones, and presenting classified evidence still do not amount to trial rigging.

    My question remains: If the trials are rigged, how are they rigged? A whistleblower shouldn’t just tell you that Bad Act X exists, they should give you some details that support the claim.

    Pablo (99243e)

  69. What WLS said in #44.

    Stahiu,

    That is, if the quote is accurate. If not, or if taken out of context, then as you say there needs to be a little more steak with the sizzle.

    Even if it’s verbatim and intended exactly as it appears, the sizzle still needs more steak. One remark, even if indicative of an attitude, does not a grand conspiracy make. While it might rightly cause concern that a problem exists, it isn’t evidence of a problem existing. This problem needs more beef. Is there any more? We’re not told that there is.

    Pablo (99243e)

  70. Besides suspicions for which you have no basis in fact?

    It’s called “The Manual for Courts-Marshall”, should try reading it sometimes.

    Gerald A (0cf74e)

  71. While it might rightly cause concern that a problem exists, it isn’t evidence of a problem existing.

    A statement isn’t evidence? Also, remember that this quote came from the Convening Authority, which would lend a bit more gravitas to it than if from say, a psych nurse. The Convening Authority is the one in charge of the whole ball of wax. He (or she) is supposed to make sure that both sides play by the rules and clarify any disputes about the rules. Colonel Davis was in charge of prosecutions and was being told that the first rule of Fight Club is… sorry, lost my train of thought for a second ;), oh yeah, the first rule of the commissions is, “No acquittals.” Fits my definition of rigging anyway. Beyond that, Colonel Davis describes other procedural interferences that he believed unethical, mostly because the Convening Authority is not supposed to favor either side. So it’s not just “one quote”, but that quote directly characterizes the issue.

    Even on this thread, Colonel Davis has been accused of being traitorous, a Democrat, a liberal, self-aggrandizing, less than an officer, less than a soldier, mercenary, having political aspirations, being a gloryhound, and several other things intended in a pejorative manner. Do you remember actus and others (some here, some on other blogs) claiming much the same about me? That I would seek to cash in on my experiences now that I had gotten a “taste of fame.” That my “agenda” would become clear shortly and they would be able to say, “I told you so.” That soon I’d hit the talk shows and write a trashy tell-all book just to make money. That I had given aid and succor to terrorists and I was a terrorist-lover. That I was a liar, less than an officer or a soldier.

    Sometimes it was very difficult to ignore that type of taunting, but responding with a profanity-laden counter-attack or getting defensive would have only lent credence to their BS. So (mostly) I kept quiet when that happened, or responded with debate instead of rhetoric, or humorous snark. Well, maybe that might explain a little better why I’d give Colonel Davis the benefit of the doubt rather than blindly condemn him for committing the sin of placing a speedbump in front of a racing kangaroo court (horrible metaphor, but you know what I mean I’m sure). If he’s right, then we have avoided injustice and embarrassment. If he’s wrong, it won’t make any difference in the end because the truth comes out more often than not.

    Stashiu3 (c8e98a)

  72. It’s called “The Manual for Courts-Marshall Martial”, should try reading it sometimes.

    Fixed it for you. Now, let’s look at your comment:

    Military trials as a general rule aren’t fair. The lower the rank, the less fair they get.

    Nope, don’t see that in the Manual or the UCMJ.

    Suspect Mr Davis had no trouble railroading US military members.

    Here’s where my comment about suspicion came from. No basis in fact. Do you even know if he ever prosecuted US military members?

    Now here’s his big chance to “make a name” for himself, write a book, do the talk shows, speaking engagements for cash degrading the military.

    Where have I heard that before? Hmmm…. just can’t place it. Haven’t seen any evidence of it either.

    And of course the timing with the election this fall had nothing to do with it.

    Ahh, the money quote, “I question the timing.” Of course, this comes out over a year before the November elections because that’s when it will affect the November elections. Fail.

    When were you in and when were you courts-martialed. Wait, you probably weren’t courts-martialed, were you? Probably got a Chapter… oh, let’s say 14 (but possible it was even a Chapter 5-13 if they were being kind), AR 635-200? Instead of a courts-martial? But you have no bias or agenda, right?

    Stashiu3 (c8e98a)

  73. And Gerald A., the newest-version of the Manual is 980 pages long, I doubt you’ve read it. I’m certain you’ve had parts read to you, if you know what I mean and I think you do.

    Just sayin’

    Stashiu3 (c8e98a)

  74. A statement isn’t evidence?

    Not probative evidence, though it could be used to support other evidence of which we seem to have none. If it were, we’d know who killed JonBenet Ramsey. And the in question statement expresses a desire, not a confession of any wrongdoing.

    Even on this thread, Colonel Davis has been accused of being traitorous, a Democrat, a liberal, self-aggrandizing, less than an officer, less than a soldier, mercenary, having political aspirations, being a gloryhound, and several other things intended in a pejorative manner.

    Not by me. My concern remains what it was in comment #1. I agree that much of this is uncalled for. I mean, call the guy a liar if you believe him to be one, but a Democrat? That’s just wrong. ;)

    Pablo (99243e)

  75. Pablo,

    And the in question statement expresses a desire, not a confession of any wrongdoing.

    An expressed “desire” of the Convening Authority is inherently directive and the quote supports his other contentions that the Convening Authority was inappropriately performing prosecutorial functions. I think it’s a reach to say this is from the administration… and I have pretty much disregarded the conclusions drawn by The Nation from the beginning because they are clearly biased against the administration. Looking at only what Colonel Davis has said, and not the conclusions drawn by others, I can see his concern there is an intent to secure convictions at the expense of fairness.

    I don’t think that evidence obtained through waterboarding should be used at trial, although I have no objection to waterboarding for intel-gathering. I also don’t have a problem keeping these guys locked up until they’re no longer any reasonable threat to the United States or our interests. I do have a problem with any trial that has a predetermined outcome and Colonel Davis’ objections strongly suggest to me that rigging was attempted. I don’t want to build a court case, I want it stopped before any crime occurs, and Colonel Davis speaking out seems a good faith effort to do the same.

    I found Gerald exceptionally amusing, especially when he implied Colonel Davis brought this out to affect the November elections and it was the rush to get convictions before the elections that contributed to his concern. Do you think Gerald will come back? It’s much easier to slap him down than respond to your well-reasoned and honest arguments. You’re very close to bruising my brain. ;)

    Stashiu3 (c8e98a)

  76. An expressed “desire” of the Convening Authority is inherently directive and the quote supports his other contentions that the Convening Authority was inappropriately performing prosecutorial functions.

    1. The prosecutor doesn’t get to guarantee convictions, no matter who “directs” or desires that he do it. If you tell me the finders of fact have been ordered to find in a certain way, then we’d be onto something. THAT would be the damning evidence that The Nation proclaims this quote to be. 2. Davis’ complaint was investigated, and the findings of the investigative panel were that his supervision by Gen. Hartmann and the authority thereof was not inappropriate. (See my #16.) As for the use of evidence, admissibility decisions lie with the judges, and not the CA, correct?

    So, Davis’ dislike of the situation, and his apparent dislike of Haynes does not trial rigging make. Again, if there’s more, I’d like to hear it.

    I don’t think that evidence obtained through waterboarding should be used at trial, although I have no objection to waterboarding for intel-gathering.

    I agree, and I suspect the judges will as well. I also don’t expect that we’ll need such information to convict the 3 who have been waterboarded.

    I do have a problem with any trial that has a predetermined outcome and Colonel Davis’ objections strongly suggest to me that rigging was attempted

    How? That is the question. What actions were taken? What illicit plans were put into place? We don’t hear any of that.

    I found Gerald exceptionally amusing, especially when he implied Colonel Davis brought this out to affect the November elections and it was the rush to get convictions before the elections that contributed to his concern.

    Yes, there’s some clumsy argumentation there. But Davis has said just that about getting convictions before the election.

    I’m interested in how the political is affecting the process here. What I don’t want though is the unsupported allegation that the trials are rigged. There’s already more that enough anti-American conspiracy theory to go around, and this just fans those flames without offering anything in the way of proof.

    Pablo (99243e)

  77. The prosecutor doesn’t get to guarantee convictions, no matter who “directs” or desires that he do it.

    “Will no one rid me of this troublesome priest?” In the military, directing an outcome also comes with pressure to ensure that outcome no matter what. “Make it happen” is the cultural norm. I would have felt the same way… that I was being told to do whatever it took to get a 100% conviction rate, and I would have objected/resigned unless the direction was withdrawn. If the prosecutor doesn’t get to guarantee convictions, why would the Convening Authority get to?

    Davis’ complaint was investigated, and the findings of the investigative panel were that his supervision by Gen. Hartmann and the authority thereof was not inappropriate. (See my #16.) As for the use of evidence, admissibility decisions lie with the judges, and not the CA, correct?

    Everybody reports to somebody and having General Hartmann as a rater or senior rater would not be inappropriate. Using that position appropriately would not generate a conflict, which is what the panel found. The article reads too much into the decision and implies that Davis’ concerns were held to be unfounded. That’s not what it says (IMO, tellingly so). As far as judges go, who appoints them and who rates them after their appointment? The Convening Authority. If I was being pressured, knowing that the CA is aware of where a prosecutor’s influence begins and ends, I would be concerned that others were being placed in similar predicaments.

    How? That is the question. What actions were taken? What illicit plans were put into place? We don’t hear any of that.How? That is the question. What actions were taken? What illicit plans were put into place? We don’t hear any of that.

    I don’t think it has to go that far for me to object. If I was put in that situation, I would like to have the moral courage to put a stop to it before it went further. That’s why I say I haven’t seen anything yet that demonstrates bad faith on Colonel Davis’ part. It may be a complete misunderstanding that exploded out of control, we’ll see. But I can see a clear path that doesn’t require the willful suspension of disbelief to see Colonel Davis as having done the right thing here. Why are so many people assuming he acted (or over-reacted) on bad faith? I know you haven’t attacked him, but I just don’t agree with those who are.

    But Davis has said just that about getting convictions before the election.

    That was my (unclearly stated) point about the elections. Colonel Davis didn’t bring this up because of the elections, he was pressured because of them. To imply that influencing the elections was Colonel Davis’ motivation was groundless and ignorant. I should have been clearer about that point. Missed the layup by *that much*. ;)

    Stashiu3 (c8e98a)

  78. What I don’t want though is the unsupported allegation that the trials are rigged. There’s already more that enough anti-American conspiracy theory to go around, and this just fans those flames without offering anything in the way of proof.

    Sorry, I didn’t scroll down far enough to see this as I responded last time. The Nation, like most of the MSM, is going to spin this in just that way. I expect it of them. That shouldn’t stop someone from doing as their conscience requires. It’s up to that portion of the media valuing truth in reporting to counter the spin by those less responsible. As Patterico notes throughout his post, Colonel Davis has gone to great lengths to emphasize what America is doing right. If he does nothing about something wrong just because of how America’s enemies will portray it, what would that say about his integrity? Remember, Abu Ghraib was reported and investigated by the military long before the MSM learned of it and they still used it to attack the military, the administration, and the country.

    The truth comes out, so I find it difficult to care much what the MSM reports. Blogs (both left and right) have the information already out there, it’s separating the wheat from the chaff that’s difficult, hence our discussion.

    Stashiu3 (c8e98a)

  79. In the military, directing an outcome also comes with pressure to ensure that outcome no matter what.

    If the prosecutor doesn’t get to guarantee convictions, why would the Convening Authority get to?

    Thing is, they don’t, like it or not. You’d have to have the finders of fact in the tank, and we have no evidence that that is the case. If Pat’s boss tells him: “I want a 100% conviction rate from you, no matter what.” does that mean his trials are rigged? Then there’s the fact that the CA does indeed have reason to believe that they should have an extremely high conviction rate. How many detainees have we released? I suspect that the screening process and the decisions to “indict” (I know that’s not the right term, but YKWIM.) have been far more comprehensively reviewed than any civilian prosecution would be.

    If I was being pressured, knowing that the CA is aware of where a prosecutor’s influence begins and ends, I would be concerned that others were being placed in similar predicaments.

    And if that’s the case, I’d like to know about it. We have no evidence of that. Reason to be concerned, yes. Evidence, no.

    If I was put in that situation, I would like to have the moral courage to put a stop to it before it went further. That’s why I say I haven’t seen anything yet that demonstrates bad faith on Colonel Davis’ part.

    Agreed. I’m only troubled with The Nation being a vehicle of his expression, and the entirely predictable spin that puts on his complaints.

    Missed the layup by *that much*. ;)

    We all have our moments. And cry and response text isn’t the best medium for nuance.

    As Patterico notes throughout his post, Colonel Davis has gone to great lengths to emphasize what America is doing right. If he does nothing about something wrong just because of how America’s enemies will portray it, what would that say about his integrity?

    Agreed again. But I don’t suggest that he do nothing, only that if he’s aware of a smoking gun, he should tell us about it. That single quote ain’t it.

    Blogs (both left and right) have the information already out there, it’s separating the wheat from the chaff that’s difficult, hence our discussion.

    Right. And as I look again at the title of this post on this blog, I’m concerned that we’re not doing a very good job of it.

    Pablo (99243e)

  80. Sorry guys, retired after 20 years, 5 good conducts (US Navy’s are for 4 years). I can’t spell but I can help with the math.

    Col Davis didn’t make that rank by doing nothing but writing wills and powers of attorney.

    Deployed on Gonzo station 4 times, you run out of things to read, so yes I’ve read the entire thing.

    For the government: Senior experienced officer, also could not of lost many cases. For the defense: the nuggets, or one who lost too many for the government.

    The CO brings the charges and the jury pool is the officers serving under him. No influence there.

    Try reading chapter 5. You won’t find it indexed under road, rail or hunt, witch.

    Gerald A (0cf74e)

  81. And for the record:

    1. Saddam should of been taken out in Desert Storm.

    2. I’d of had no problem with the US nuking Tora Bora to a smoldering crater.

    3. Al-Qaeda should be fought under the red flag.

    Gerald A (0cf74e)

  82. I think this discussion is a good argument that the US should choose one of the follow two methods and stick to it: Either let the military fight the war according to its rules, or turn it over to the MPs and lawyers to fight according to US criminal law rules. As it is, it seems like we are jumping back and forth between the two with no rhyme or reason.

    DRJ (3eda28)

  83. Gerald A: If what you say is true, no court martial should ever result in anything other than a conviction.

    More generally, it strikes me that “make sure there’s a conviction rate of 100%” can be interpreted in at least two ways that don’t suggest rigged results:
    1) “these cases have been thoroughly gone over, and we’re only bringing the best cases to trial, so if one of them ends in an acquittal, the only reason is because you screwed up!”
    or 2)”make sure you prosecute only the cases you can win. If you’re not certain, don’t prosecute because an acquittal will be blood in the water for the MSM sharks.”

    I know possibility 1 has been adverted to in this thread, but I don’t think possibiity 2 has been raised.

    kishnevi (db1823)

  84. Door #2 might be the 800-lb gorilla that everyone just ignores. The CW would be that an acquittal and the attendant negative publicity is worse than doing nothing.
    That, along with the attempts to extend “Miranda” rights to battlefield detainees, will result in the worst of all possible situations: Combat soldiers will just not take prisoners.
    For those who say such a result can never happen; I say: It already has during our history, and can easily happen again.

    Another Drew (8018ee)

  85. kishnevi, #2 only works if the prosecutor has that discretion. I don’t believe they do in all cases, but I’m not certain. I alluded to that in #46… IIRC, he was told who was indicted and that there could be no acquittals.

    DRJ, Absolutely!

    Pablo,

    Right. And as I look again at the title of this post on this blog, I’m concerned that we’re not doing a very good job of it.
    Comment by Pablo — 2/24/2008 @ 10:28 am

    But look at the comments my friend… such a variety of positions where any reader has the opportunity to pick and choose which sound reasonable. As opposed to MSM input where you get one perspective and you can’t trust it because there’s always an agenda and it’s almost always wrong.

    ============================

    Gerald A.,

    And Gerald A., the newest-version of the Manual is 980 pages long, I doubt you’ve read it. I’m certain you’ve had parts read to you, if you know what I mean and I think you do.
    Just sayin’
    Comment by Stashiu3 — 2/24/2008 @ 2:32 am

    Deployed on Gonzo station 4 times, you run out of things to read, so yes I’ve read the entire thing.
    Comment by Gerald A — 2/24/2008 @ 2:42 pm

    The newest version of the Manual for Courts-Martial is 2008. You claimed you’ve read it while at “Gonzo” and that you’re now retired. Demonstrably false. I still say you have other, more practical experience. If you weren’t courts-martialed, or separated instead of courts-martial, why would you have such a negative impression of them? I can’t say I’ve ever met a retiree who thought that way. Just the opposite in fact, most felt that someone convicted by one was more likely guilty than a civilian counterpart.

    Here’s why: All branches of the military prefer disciplinary administrative separation rather than go to courts-martial. A CM is almost invariably done only if the crime is especially egregious or the accused refuses non-judicial punishment (the Navy has Captain’s Mast) and/or disciplinary administrative separation (Patterns of Misconduct, Commission of a Serious Offense, etc…) Also, all that is usually after multiple attempts to rehabilitate the accused through counseling and correctional training.

    Saying there is a lack of reading material at Guantanamo is also nonsense… the BX, shopettes, libraries, and Amazon.com are all available (I used them all). I’ll leave your other questionable claims alone since they don’t apply to the thread and aren’t worth fisking further beyond this: Your original posts weren’t credible and merely accused Colonel Davis and the military at large based on nothing more than your suspicion. No evidence or argument at all, just accusation. You still don’t know what else Colonel Davis has done during his career and if you had been in 20 years would know that there are multiple paths to high rank in all branches, especially the specialty ones like JAG and Medical Corps.

    In other words, you don’t talk the talk and haven’t said anything credible yet about the thread topic, much less anything else. Try inventing a persona that is closer to your own, you’ll be able to maintain the charade longer.

    Stashiu3 (c8e98a)

  86. Stashiu3, thought so, you’re WRONG.

    1. Gonzo ain’t Gitmo. I’ll let you try and figure it out. Hint, wrong side of the world.

    2. When a large number of the men in a squadron get caught up in a witch hunt, its wrong, when it’s my men, I GET PISSED. They were probably guilty, but you do it by the rules.

    Over 20 years you serve with both good and bad. Those who will do what right, and those who do what ever it takes to advance their career, right or wrong.

    Let me put it this way. I don’t trust Col Davis motives.

    Gerald A (0cf74e)

  87. If “Gonzo” ain’t Gitmo, everything else I said is wrong, eh poser? As if “Gonzo” is so isolated that reading material or other entertainment is so scarce that you’re forced to read the Manual for Courts-Martial out of boredom? Or that you read a 2008 version of the MCM while there, but now you’re retired? Or was it out of boredom?… because now you have all these men who were unfairly prosecuted and you’re “pissed” about it, so we’re supposed to assume you diligently combed the MCM to try and help them out. You say “my men”, but you were blameless? I would think that a “large number” falling victim to a witchhunt might cast some blame on their boss, don’t you? And you still don’t know if they’re guilty or not? How clueless of a boss is that when all the evidence has been presented already? And you still have no idea if Colonel Davis ever prosecuted active-duty? Still nothing but suspicions with no basis in fact and unrelated to the thread.

    Next, it’ll be that you “know for a FACT!!!1!!! that Colonel Davis intentionally released the terrorist who beheaded your beloved kitten, on his own “illegal” authority which included destroying the video evidence by shooting it into the sun. Your “absolute moral authority” doesn’t impress since you still haven’t made a single point on-topic and supported by reality.

    First rule of holes, you poser, first rule of holes. Time to ignore you until you bring something real to the party. Slapping you down isn’t even entertaining anymore (well, a bit, but not enough to continue, I just hate dishonest commenters… especially stupid ones)

    Stashiu3 (c8e98a)

  88. Stashiu3, you so damned sure I’m a posser, put your money where your mouth is.

    I got $2000 sez I’m retired.

    Gerald A (0cf74e)

  89. I got $2000 sez I’m retired.

    Ok, last time. Just for giggles. Basically, you’ve got nothing about the thread besides suspicion, you pretty much admit the only thing that might be true about anything you’ve posted is that you’re retired (was not saying “from the military” intentional?), and your life savings consists of $2000.00 (if you sell your car?).

    Got it. Now go away.

    Stashiu3 (c8e98a)

  90. Thought so, all mouth

    Gerald A (0cf74e)

  91. Thought so, all mouth.

    Gerald A (0cf74e)


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