Former Chief Gitmo Prosecutor Alleges Trials Are Rigged

A must-read today: Russ Tuttle reports on the planned Guantanamo military commission trials in The Nation:

Now, as the murky, quasi-legal staging of the Bush Administration's military commissions unfolds, a key official has told The Nation that the trials are 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 in an attempt to foreclose the possibility of acquittal.

This is mind-boggling: Pentagon Chief Counsel William Haynes told Davis there can be no acquittals: [More...]

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, something that 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.'"

A few days ago in a McClatchy article that didn't gain enough attention, both Hillary Clinton and Barack Obama weighed in on the military tribunal process. Both advocated trials in federal court or military courts under the Code of Military Justice and criticized the tribunal process. The article said Clinton had a plan for moving the trials, Obama didn't offer one.

If elected president, Hillary Clinton would ask the Justice Department to determine if alleged 9/11 plotters currently held at Guantanamo Bay, Cuba, could be tried in civilian courts or regular military courts rather than face military commissions that have sparked controversy both inside and outside the United States, her campaign says.

Clinton's response to questions about charges filed last week against six Guantanamo prisoners was the most far reaching of the three leading presidential candidates.

Her opponent for the Democratic nomination, Sen. Barack Obama, D-Ill., said that the so-called "high-value detainees'' at Guantanamo should be tried in federal or traditional military courts, but did not say what actions he would take to move the trials.

Here's are Barack Obama's comments:

"As a candidate to be the next commander-in-chief ... I think it's important to be careful about commenting on specific cases pending before the tribunals at Guantanamo Bay," Obama said in a statement.

But he said the "trials are too important to be held in a flawed military commission system that has failed to convict anyone of a terrorist act since the 9/11 attacks and that has been embroiled in legal challenges.

"As I have said in the past, I believe that our civilian courts or our traditional system of military courts martial are best able to meet this challenge and demonstrate our commitment to the rule of law."

More from Hillary:

"While the policies at Guantanamo have hurt America's image, this is more than just an image problem," said Feinstein, Clinton's adviser.

"Senator Clinton believes those who have committed crimes against the United States should be brought to justice. And that justice is long overdue. Proper military commissions are established to expedite battlefield justice, but the deeply flawed military commissions set up by the Bush administration and blessed by the Republican congress in 2006 have only delayed the administration of justice in these cases."

John McCain said he will continue the current plan of trial by military commission at Guantanamo. He's also proposed moving the detainees to the prison at Ft. Leavenworth, KS. Ironically, if that were to happen, the detainees could have more access to the courts since they would be on U.S. soil.

As to the Military Commission Act:

McCain voted for the Military Commissions Act, which passed the Senate 65-34. Both Obama and Clinton voted against it.

President Bush signed the Military Commission Act into law in October, 2006.

My analysis of the bill (which includes former Prosecutor Davis's strong endorsement of the bill) is here.

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  • Display: Sort:
    Military courts vs regular courts (5.00 / 2) (#1)
    by Prabhata on Wed Feb 20, 2008 at 11:54:19 AM EST
    The idea that regular courts cannot be used to try crimes of terror is unacceptable.  The Clinton administration proved their success, and I believe I read somewhere that Hillary wants to use regular courts to convict Guantanamo detainees.  I can't link because I don't remember where I read that.

    In other words (5.00 / 2) (#2)
    by standingup on Wed Feb 20, 2008 at 11:54:46 AM EST
    '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.'"

    the trials are nothing more than an attempt to legitimize more illegal actions under the Bush administration.  Sounds like more of a cover up attempt to me.  Am I reading this correctly?  

    That is mind boggling..... (5.00 / 2) (#3)
    by kdog on Wed Feb 20, 2008 at 12:15:00 PM EST
    Paiging Mr. Kafka...

    Are any of these prisoners (5.00 / 1) (#4)
    by jondee on Wed Feb 20, 2008 at 12:21:44 PM EST
    the ones who were turned in by their aggrieved/impovershed neighbors for 800 dollar (or
    whatever it was), rewards?

    If Bush'll Texacute 150 people for political traction for the Rethugs, why should anyone be suprised by this?


    I don't know and neither do you. (none / 0) (#11)
    by jimakaPPJ on Wed Feb 20, 2008 at 04:50:19 PM EST
    well (5.00 / 1) (#13)
    by jondee on Wed Feb 20, 2008 at 04:59:12 PM EST
    that you dont know,(or care), is pretty much a given; but someone here may, which is why I asked the question.

    If thats alright with you.


    Let me extend (none / 0) (#14)
    by jimakaPPJ on Wed Feb 20, 2008 at 06:54:35 PM EST
    You don't know.

    No one here knows.

    I don't know.

    Hope that answers your question.


    Exactly.... (5.00 / 1) (#18)
    by kdog on Thu Feb 21, 2008 at 09:52:55 AM EST
    no one knows...which is why we need a trial that can lead to a conviction or an acquital.

    When people with clout over these trials say "there can be no acquitals"...then no one will ever really know, and we could be party to locking up some poor slob sheep herder.  Unacceptable to any freedom lover.


    Come on kdog (none / 0) (#21)
    by jimakaPPJ on Fri Feb 22, 2008 at 09:00:35 AM EST
    My point was that there is no proof that this cannot happen. Prosecutors saying that they must convict happens all the time. Would you expect them to be prosecuting someone they think innocent?? So doesn't it follow they want a conviction?

    What you dont know (none / 0) (#19)
    by jondee on Thu Feb 21, 2008 at 03:58:07 PM EST
    could fill a black hole.

    We're talking (none / 0) (#20)
    by jondee on Thu Feb 21, 2008 at 04:17:53 PM EST
    about people (IMO) who are perfectly willing to expedite a few out-of-public-view railroadings, or a few Texacutions, if it will minimize the amount of time that direct light and public scrutiny are focused on what they've been doing and how they've been doing it.

    It's all just more broken eggs for the neocon omelet.


    What I do know (1.00 / 0) (#22)
    by jimakaPPJ on Fri Feb 22, 2008 at 09:02:19 AM EST
    is that you don't know.

    I also know that you have no proof for your claims, but just want to smear someone. Have a ball, it is just one more example of how you operate.


    General Counsel Haynes (5.00 / 2) (#5)
    by litigatormom on Wed Feb 20, 2008 at 12:26:12 PM EST
    a/k/a the Red Queen: "Verdict first, trial later!"

    Just another perversion of the justice system to cover-up the Bush Administration's violations of law.

    Faux trials, show trials ... (5.00 / 1) (#6)
    by Meteor Blades on Wed Feb 20, 2008 at 12:31:15 PM EST
    ...taking place on a chunk of the empire that the Cheney-Bush regime and its enablers like to pretend is their private preserve, beyond the law, beyond civilized behavior. No surprise that the whole affair is fixed, just that somebody actually admits it with a straight face.

    Just remember - this colonel (5.00 / 1) (#8)
    by scribe on Wed Feb 20, 2008 at 01:07:50 PM EST
    wanted to testify to Congress a couple months ago, to report on this.  The morning he was to go over and testify, he received a direct order not to appear.

    And, its no surprise Haynes is elbow-deep in this slaughter.  He worked hand in glove with Yoo, Addington and the rest to start the whole torture program and to loyalty-test the JAGs and the civilian lawyers in DoD.  Go read this article from the New Yorker about how he did Rummy's dirty work on that score.  And, if you have a little time, go read (courtesy of the ACLU) the July 2004 memorandum Mora wrote describing how this all came to pass.  It's a companion to the New Yorker piece.
    Here's the wiki on Mora - it's easy to see why Hanyes got rid of him.

    Not at all mind-boggling (none / 0) (#7)
    by Claw on Wed Feb 20, 2008 at 12:36:00 PM EST
    This would be mind boggling if I'd just woken from a coma beginning, say, 1999.  I always assumed there was something very fishy going on.  Frankly, I'd be shocked if a report came out that anything about this process was fair.

    In a related vein (none / 0) (#9)
    by cboldt on Wed Feb 20, 2008 at 01:32:59 PM EST
    SCOTUSblog has a day-old report on recent action in the DC Circuit / SCOTUS venue

    Detainees: Lower court fracture a problem

    The linked brief touches on the MCA process.

    as well (none / 0) (#10)
    by cpinva on Wed Feb 20, 2008 at 03:04:44 PM EST
    bush has sandbagged the next administration, by packing the USSC with justices who will not let those detainees see the light of a civilian US courtroom, unless, ala scalia, they happen to be being tortured in it.

    he's packed the entire federal court system, and all the military has to do is cherry pick what circuit they want cases heard in. absent massive legislative changes by the next congress, a democrat in the white house and majorities in both houses will do nothing to halt this process.

    and the republicans will fight tooth and nail to derail any legislation that attempts to, bet on it.

    Bush Derangement Syndrome at work (1.00 / 0) (#12)
    by jimakaPPJ on Wed Feb 20, 2008 at 04:54:30 PM EST
    Why should these non-citizens charged with crimes committed outside the US be brought inside the US for trial? They have absolutely no right.he

    hehe (1.00 / 0) (#23)
    by jimakaPPJ on Fri Feb 22, 2008 at 09:05:06 AM EST
    They are being provided a tribunal, something that, in the past, was not provided.

    You might consider that rather than worry about giving rights to people who don't have them.

    I mean you being such a well known constitutional scholar and all.


    Nope (1.00 / 0) (#24)
    by jimakaPPJ on Fri Feb 22, 2008 at 09:06:30 AM EST
    The crime was committed where the planning was done.

    Colonel Davis Not A Good Bushie (none / 0) (#15)
    by john horse on Wed Feb 20, 2008 at 07:26:39 PM EST
    According to former chief Guantanamo prosecutor Colonel Davis "he had been pressured by politically appointed senior defense officials to pursue cases deemed "sexy" and of "high-interest" (such as the 9/11 cases now being pursued) in the run-up to the 2008 elections."

    Now what does the run-up to an election have to do with what the military commission in Guantanamo is supposed to be doing?  Why did these politically appointed senior defense officials rig the trials?  I think the answer is obvious.

    Like so many of those in Bush's administration, the first loyalty of these political appointess at Guantanamo is to serve a partisan political agenda.  Certainly not to justice for giving the detainees a fair trial may result in acquitals and that might be embarassing to the political interests of the Republican party.  

    It seems increasingly evident to me that their model of justice was not the Constitution but the Spanish Inquisition.