A Few Good Soldiers
More members of the military turn against the terror trials.
Posted Tuesday, May 13, 2008, at 6:35 PM
Next up, Col. Morris Davis, former chief prosecutor for the tribunals. Davis is no pro-detainee marshmallow—he worked for years to ready Guantanamo cases for trial and penned a spirited defense of the tribunals just last year. But when his bosses pressured him to prosecute the "sexy" cases instead of meritorious ones, while insisting upon the use of evidence obtained by coercion, Davis finally decided he'd had it. He resigned last October and went on an op-ed tear, writing that "full, fair and open trials were not possible under the current system" because it "had become deeply politicized." Davis, who still maintains that the charges against Mr. Hamdan are "warranted by the evidence," was called to testify in Hamdan's case last month by the defense because of his indictment of the system.
Davis' testimony led to an even odder plot twist, reintroducing us to yet another military naysayer: Keith Allred is the military judge presiding over Hamdan's case. (Winning before the Supreme Court only got the guy another crack at a trial before the same old commissions.) Allred first pushed back against the Gitmo process last June, when he held that he did not even have jurisdiction to hear Hamdan's case. A hastily convened Court of Military Commission Review found otherwise, allowing the charges against Hamdan to go forward.
But Allred still isn't quite prepared to play his designated part. Last Friday, he disqualified Davis' old boss Brig. Gen. Thomas Hartmann from any further participation in Hamdan's prosecution. Hartmann has to back off, even though he is the tribunals' official legal adviser. In a written opinion, Allred took the general to task for attempting to direct Davis "to use evidence that the Chief Prosecutor considered tainted and unreliable, or perhaps obtained as the result of torture or coercion." (Allred also made a finding of fact that while interviewing Davis for the chief-prosecutor position, Department of Defense Gen. Jim Haynes told him, "We can't have acquittals. We've got to have convictions." So now that's the official account. Good to know.)
Davis is not the only prosecutor to have bailed on the Guantanamo trials. Four others—Maj. Robert Preston, Capt. John Carr, Capt. Carrie Wolf, and Lt. Col. Stuart Couch—have also left, apparently because of micromanagement and the interference of which Davis complained, including the demand that they use what they deemed to be unreliable coerced testimony.
The Supreme Court, then, is hardly the only thing standing between the president and kangaroo convictions at Guantanamo. The truth is that the best thing the commissions have going for them right now are the lawyers and judges in uniform who have, albeit reluctantly, refused to play along. If they'd been out on the battlefield, they'd have killed any detainee they met as an enemy. But they're not willing to see them killed in the wake of a sham trial. That's not because they value the lives of terrorists over the lives of Americans or because they value legal formalism over the exigencies of war. It's because they come out of a long military tradition of legal integrity and independence. And much as it must pain them, this precludes them from being yes men for the Bush administration at the expense of the rule of law.
Critics of the president's military commissions worried that the bodies would do their work in secret, in the legal shadows, answering only to the president as their commander in chief. But the soldiers and lawyers who insist on holding the proceedings to a higher standard have, at crucial moments, operated in the open. They've navigated by the light of the Constitution, sometimes at an enormous cost to their careers. Their performance is the best thing the Guantanamo commissions have to offer.
Correction, May 14, 2008: This article originally contained a photo of a man identified as Mohammed al-Qahtani. However, the man pictured was not the Mohammed al-Qahtani discussed in the article. The photograph has been removed.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. She is also the Truman Capote Fellow at Yale Law School and a contributing writer for the New York Times Magazine. Her new book is Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at firstname.lastname@example.org or on Facebook or Twitter.
Dahlia Lithwick writes about the courts and the law for Slate.