Colonel Davis Speaks Out:

Colonel Morris Davis was the chief prosecutor for the Office of Military Commissions until he resigned his position in October. Today, in the Los Angeles Times, Col. Davis explains his decision. According to Davis, he reluctantly concluded that "full, fair and open trials were not possible under the current system" and that "the system had become deeply politicized and that I could no longer do my job effectively or responsibly." It's a powerful critique of the current system of military tribunals by someone who supports such tribunals, in principle, but has developed grave reservations about how they are operating in practice. My former colleague Amos Guiora has further comments on the AIDP blog here.

JunkYardLawDog (mail):
Good. Glad he's gone then.

Says the "Dog"
12.10.2007 6:39pm
Skyler (mail) (www):
That is a very damning account. I've never heard of a civilian being appointed a convening authority before, but I suppose it has happened. It should never, though, be used to give political appointees judicial authority.

I'm all for military commissions. I can't imagine the havoc if prisoners of war (by any other name) were to get access to our legal system via habeas petitions. But I agree with the sentiments of Colonel Davis. I hope that his accusations aren't correct, but frankly I trust his say more than the word of a political appointee. Even in a military tribunal, there must be some semblance of impartiality or else it is just a kangaroo court.

They're all guilty, right? That's why they're there. Then why are we so reluctant to do this in a thorough and reasonably transparent way?
12.10.2007 7:12pm
1. "In a nutshell, the convening authority is supposed to be objective..."

According to the Act, the "convening authority" is the Secretary of Defense or his delegate, which hardly suggests they're supposed to be objective. In fact, the Act goes as far as requiring that the convening authority "not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to the military commission".

2. "Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent." "Transparency is critical."

The civilian authority-delegate apparently had a different set of priorities and felt more comfortable with the use of the closed hearings which are allowed under the Act.

3. "William J. Haynes" "controversial"

I had a policy difference with my new superior, who is icky.

4a. The two Generals who used to be in charge -- "They acted on principle rather than politics."

4b. "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."

Sorry, Bucky, but the uniformed military works for the civilians here, and not vice versa.
12.10.2007 7:47pm
Anderson (mail):
If the commissions were run straight by the UCMJ, I think most of us critics would have a lot less to criticize.

But that's never been on the table, b/c the fundamental goal has been to obtain convictions based on evidence obtained by torture.

OT, if you can get your hands off your obelisk a moment and do some googling, you can find plenty of reasons why Haynes is every bit as noxious as the good colonel implies. Jane Mayer's profile of Alberto Mora is a good place to start.
12.10.2007 7:57pm
byomtov (mail):
Good. Glad he's gone then.

Right. Can't have someone in charge of these things who's interested in getting the facts out and having a fair hearing. Next thing you know, they'll decide some detainee is not a terrorist at all. Wouldn't that be embarrassing. Best not to take the chance.
12.10.2007 9:20pm
Duncan Frissell (mail):
I thought the commissions were supposed to be fair but not open or complete. Complete and open would be a normal criminal trial in a civilian court. We know such proceedings can be fair since hundreds of men were released from Gitmo before the commissions were even demanded. Total Gitmo throughput has been 775 of whom 420 have been released.
12.10.2007 10:53pm
DF, trials can be fair, open and complete but still lack quite a bit of the protections afforded by a criminal trial in a civilian court. Consider the Nuremberg trials.
12.11.2007 12:35am
Col. Davis is misusing the word "political." It appears, from his article, that various decisions were made about administration of the trials with which he disagreed. He may be right, but it is disingenuous in the extreme for him to claim that the people with whom he disagreed were "political," as if his own opinions were beyond question. Any opinion about how these trials should be run would be "political," and would be resolved by political means (i.e., basically, discussion, with the ultimate decisions being made by elected officials or their appointees).
12.11.2007 12:42am
And Mr. Guiora is very disingenuous too, in his assertion that Col. Davis is a person of high integrity. Is he suggesting that Susan Crawford is not a person of integrity? If so, he should present some evidence, rather than implicit slurs. (I know nothing myself of either individual.)

Or is Mr. Guiora suggesting that individuals of integrity can never disagree, so, if two people disagree, and you know one of them is a person of integrity, you don't have to check on the other one? That is just silly.
12.11.2007 12:47am

Any opinion about how these trials should be run would be "political," and would be resolved by political means (i.e., basically, discussion, with the ultimate decisions being made by elected officials or their appointees).

If he thought that ethical standards were being transgressed in order to further some politically expedient goal then he is right to accuse others political interference.
12.11.2007 1:40am
JohnK (mail):
Understand that the convening authority is not the judge or jury. The convening authority is the final say on what charges go to trial. In the military justice system, the convening authority is usually the commanding general. Every charge against a soldier must be approved or referred by him before it can be tried in court. The convening authority is supposed to honestly look at the evidence and decide if there is enough of it to justify a trial. The convening authority never convicts anyone. That is up to the judge or jury.

This guy's bitch is that Crawford came in and told him how to do his job and how charges should be drafted and what charges she was going to approve. Now that is not how the system usually works. The system usually works where the lawyers lay what they suggest to the convening authority and the convening authority says yeah of neah. Understand though that the convening authority has all of the power. He can tell refuse to refer charges until the lawyers give him exactly what he wants. He can also tell the lawyers what he wants and refer charges even if the lawyers tell him not to. He holds all the cards. The lawyers just advise.

Regardless of what happens, it is still up to the judge and jury or in this case the military commission to convict. So a convening authority can refer whatever he wants but if there isn't any evidence and the judge and jury do their jobs, he won't accomplish anything.

The idea that the convening authority must stay out of the charging decision is really not true, since the convening authority has all of the power and the lawyers have none of the power. My guess is that Crawford, being a civilian didn't act like a typical military convening authority and defer to the lawyers. She probably told this guy how to run his shop and what she was and was not going to be refereed. He being a Colonel with a big ego, didn't like that. Notice, he doesn't give any concrete examples of any unfair charges being refereed. He only whines about Crawford telling him what to do. If unfair charges are being referred and bad decisions being made, then he ought to be saying something and explaining just what those are. As it is, he does none of that. He just whines about a political appointee telling him what to do and implies things are unfair but never says how. He just says they appear to be unfair. Whatever that means. Well, too bad Colonel. Sometimes life is like that.
12.11.2007 2:08pm
F. Morrison (mail):
Colonel Davis makes some good points about the management of the military commission process. However Susan Crawford is not without qualifications for the position of convening authority for military commissions. For 15 years from 1991 to 2006 she was a judge and then chief judge of the United States Court of Appeals for the Armed Forces. This is an Article I court composed of five civilian judges serving 15 year terms. This court functions as the supreme court for the military justice system. During the Reagan administration she was the Inspector General for the Department of Defense and General Counsel for the Department of the Army.
12.12.2007 1:32pm