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.
[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.