More members of the military turn against the terror trials.

The law, lawyers, and the court.
May 13 2008 6:35 PM

A Few Good Soldiers

More members of the military turn against the terror trials.

Legal commentators have argued for years about whether there might ever be legitimate trials for the so-called "enemy combatants" we're holding at Guantanamo Bay. Some say no. Others, like our friend Ben Wittes, argue that the evidence is inconclusive. They want to see what the Guantanamo military commissions produce before pronouncing them a failure.

We may never get there. Key actors are declining to play their part in a piece of theater designed to produce all convictions all the time. These refusals, affecting two trials this week, suggest that the whole apparatus—seven years and counting in the making—cannot ever be fixed. The trials are doomed, and they are doomed from the inside out.

Today we learned that the Pentagon has dropped charges against Mohammed al-Qahtani—the alleged 20th hijacker (or maybe the 21st or 22nd, since that title has gone to others before him). Along with five other "high value" detainees, al-Qahtani was facing capital charges at Guantanamo. The decision not to try him comes from the convening authority for the commissions, Susan Crawford. She didn't give an explanation for halting the prosecution, but, then, we don't really need one. As Phillip Carter notes elsewhere in Slate, it's been clear for a while that the evidence against al-Qahtani was torture (or near-torture) tainted, and prosecutors at Guantanamo had announced long ago that "what had been done to him would prevent him from ever being put on trial." In light of all that, you might wonder why he was one of the six trotted out for the big show trials in the first place.

Something in the unsavory history of al-Qahtani's interrogation (featuring sexual humiliation, attack dogs, stress positions, and sleep deprivation) must have proved too much for Crawford, which may reveal that Crawford has some filament of legal integrity or simply that she knows when to cut her losses. Either way, it's important that for every course correction at Gitmo from the Supreme Court, there have been many more from within the Pentagon. If the same people who joined the military in the hopes of fighting terrorism have had enough of the government's jury-rigged apparatus of Guantanamo justice, it's probably time to stick a fork in the whole thing.

Since the inception of the commissions, the brakes have almost always been applied when some member of the military has balked, even when going along would have been the far easier course. These refusals—some silent, some very public—have combined to stall the tribunals. The clearest sign that the military system is working is that the military itself has refused to let it go forward.

Start with Charles Swift, the defense lawyer from the Navy's Judge Advocate General Corps who was appointed in 2002 to represent Salim Hamdan, Osama Bin Laden's driver and—thanks to Swift's willingness to buck the system—the big winner of the Supreme Court decision that sent the military commissions back to the drawing board in 2006. According to Jonathan Mahler's new book about Hamdan's case, Hamdan v. Rumsfeld, Swift doubted early on that it would be possible to present a zealous defense on Hamdan's behalf, and with fellow Navy JAG Philip Sundel, he lobbied his superiors to call the commissions "what they thought they were—kangaroo courts." When Swift couldn't work the changes he wanted internally, he teamed up with Georgetown law school's Neal Katyal to sue the Defense Department. Swift became an outspoken critic of the tribunals, including here in Slate.

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 was a Slate senior editor from 2005 to 2014. She is the author of Sticks and Stones.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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