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Thursday, December 13, 2007

"Quagmire" at Gitmo

Barbed wire and US flag

The more we find out about what happens at Guantanamo Bay, the more the whole thing seems like a waste of time, at best, and a terrible injustice, at worst. For verifications of both takes, we need only turn to an op-ed by a former Gitmo lawyer, Morris D. Davis, for the Los Angeles Times:

I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.

In my view -- and I think most lawyers would agree -- it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the "convening authority" -- a title with no counterpart in civilian courts -- was not living up to that obligation.

That "convening authority" being Susan Crawford, chosen by Secretary of Defense Robert Gates to replace Maj. Gen. John Altenburg. This convening authority, created by the Military Commissions act, participates in military tribunals as sort of a one person grand jury -- among other things -- who "chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things." In this capacity, the CA is supposed to be impartial. Crawford, apparently and not very surprisingly, has not been.

In his piece, Davis comes across as a man more concerned with justice and the law than partisanship. According to his Department of Defense bio, Morris Davis "was selected as the Outstanding Judge Advocate for Headquarters Air Force in 1990." He's hardly some lefty whiner.

Judge Susan Crawford's relatively short career at the facility has been marked by one non-trial. Australian detainee David Hicks was released from Gunatanamo into Australian custody after a "plea agreement that was kept secret from a panel of military officers who recommended a longer sentence."

Why was Hicks released over the objections of these officers? The terms of the plea deal speak volumes -- Hicks cut a deal to keep his damned mouth shut.

Associated Press:

Under his plea deal, Hicks stipulated that he has "never been illegally treated by a person or persons while in the custody of the U.S. government," [Marine Col. Ralph] Kohlmann said. In the statement read by [his defense attorney, Marine Corps Maj. Michael] Mori, Hicks thanked U.S. service members for their professionalism during his imprisonment.

Furthermore, the judge said, the agreement bars Hicks from suing the U.S. government for alleged abuse, forfeits any right to appeal his conviction and imposes a gag order that prevents him speaking with news media for a year from his sentencing date.

Hicks and Crawford cut a deal after Hicks filed an affidavit alleging he'd been tortured. In that document, Hicks claimed he'd be blindfolded, beaten, and drugged, among other abuses. He also claimed to have witnessed abuse of other detainees. The deal essentially forces him to disavow his affidavit.

Morris hints at this incident in his op-ed announcing his resignation. "[Former CA] Altenburg's staff had kept its distance from the prosecution to preserve its impartiality," writes Morris. "Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution's pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things." This from the "impartial" convening authority.

"How can you direct someone to do something -- use specific evidence to bring specific charges against a specific person at a specific time, for instance -- and later make an impartial assessment of whether they behaved properly?" he asks. Crawford had negotiated Hicks' plea deal with defense attorneys, shutting prosecutors out of the process.

Looking at Morris's charges and the Hicks case, what we see is a facility set up more as a information gathering facility and a holding tank for "intelligence assets" than a prison to hold accused criminals. Crawford's use of the system set up by the Military Commissions act shows that act to be a fig leaf -- a pretense of justice and an excuse to hold detainees indefinitely. They all have the promise of some sort of trial, just not right now. Instead of show trials, we have show charges, without trials. And, as the non-trial of David Hicks proves, this system of phony justice actually impedes the prosecution of the accused.

But Crawford isn't the only one who Morris criticizes. Far more troubling was his new boss.

Finally, I resigned because of two memos signed by Deputy Secretary of Defense Gordon England that placed the chief prosecutor -- that was me -- in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the U.S. 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor's office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes' place in my chain of command.

Morris tells us, "The first step, if these truly are military commissions and not merely a political smoke screen, is to take control out of the hands of political appointees like Haynes and Crawford and give it back to the military."

According to Morris, "Only one war-crime case has been completed." That'd be Hicks. And the way Hicks' case turned out explains why there haven't been any more. "It is time for the political appointees who created this quagmire to let go," he says.

Quagmire in Iraq, quagmire at Gitmo. You've got to wonder how often the neocons have to fail before they realize their entire ideology is profoundly screwed up?


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