Pentagon Ordering Former Chief Prosecutor at Guantanamo Not To Appear Before the Senate Judiciary Committee?

That's what Sen. Feinstein reports (linked to and quoted by TPMmuckraker: "We assured the administration that Colonel Davis would not be asked about open and pending cases. But we were told simply that Colonel Davis was active duty military, and because he was active duty military, they could issue an order he had to follow." (Recall that Col. Davis has publicly criticized the operation of the current military tribunal system, and resigned his chief prosecutor post because of his views.)

I'm sure Col. Davis does have to follow his commanding officers' orders; I can't speak to whether the Senate has subpoena powers over such officers, but to my knowledge he hasn't been subpoenaed. But I can say that, based on the facts as reported by Sen. Feinstein, this seems like a very bad move on the Pentagon's part, both politically and from a policy perspective.

The Congressional oversight power, though it can often be abused, is quite necessary in such situations, especially when the judiciary is likely to give considerable deference to the executive (as it in considerable measure does, though some think it should give still more deference). It seems to me that for the executive to block testimony before Congress that might shed light on how the system operates, and whether it has flaws that jeopardize both defendants' rights and the system's accuracy and efficiency as a warfighting tool, both looks bad and is bad.

Thanks to Victor Steinbok for the pointer.

Related Posts (on one page):

  1. Col. Davis' Rejoinder to Brig. Gen. Hartmann:
  2. Brig. Gen. Hartmann Responds to Col. Davis:
  3. Col. Davis and the Testimony that Wasn't:
  4. Pentagon Ordering Former Chief Prosecutor at Guantanamo Not To Appear Before the Senate Judiciary Committee?
  5. Colonel Davis Speaks Out:
Kevin T. Keith (www):
Isn't the Senate's subpoena power roughly equivalent to a judge's power? If the colonel were a witness in a civilian court case, he could surely be subpoenaed, yes? Can't he be subpoenaed by Congress the same way?

In that case, whoever gave the order to ignore the subpoena would seem to be committing obstruction of justice (in a court matter), or, perhaps, contempt of Congress or something similar (in the Congressional matter). Arguably the colonel has an obligation to obey the subpoena regardless of illegal orders to the contrary, but I'm sure the responsible body would look to the obstructing superior, rather than the colonel, as the source of the offense.
12.11.2007 2:55pm
If the Senate is doing a valid oversight function the Adminstration and the Pentagon should co-operate with them, if they are just posturing they should be told to pound sand.

I wonder what the standard Pentagon policy is for officers below General testifying? Seems to me any General should be fair game, but when it comes to Col. and below, Congress could make a lot of mischief soliciting opinions on policy from those that don't have much say in making it.
12.11.2007 2:57pm

Isn't the Senate's subpoena power roughly equivalent to a judge's power? If the colonel were a witness in a civilian court case, he could surely be subpoenaed, yes? Can't he be subpoenaed by Congress the same way?

Actually, "No", a subpoena by a civilian court or administrative proceeding is not always effective upon military or Dept of Defense civilian personnel. See, e.g., Department of Defense Directive 5405.2, Release of Official Information in Litigation and Testimony by DoD Personnel as Witnesses. None of the exceptions to the prohibition of DoD personnel appearing as witnesses, and so permitting testimony pursuant to subpoena, authorize testimony before Congress. There may be other statutes or regulations that require the Colonel to testify pursuant to a Congressional subpoena, however, I haven't found one. To enact a statute which would create an exception to the laws on which the DoD Directive is based, Sen. Feinstein may have to get veto-proof majorities in both house of Congress authorizing compliance with a subpoena by Congress by DoD personnel. Or, more likely, she'll have to cut a deal with the White House. Expect a lot of posturing on both sides in the mean time.
12.11.2007 3:22pm
MLS (www):
As a legal matter, there are two issues here. The issue of whether Colonel Davis can be compelled to testify by subpoena is one issue. However, there is a separate issue of whether Colonel Davis can be forbidden to testify voluntarily. There are various provisions of law that purport to prevent the executive branch from prohibiting its employees from providing information to Congress. For example, 5 USC 7211 provides that "The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a commitee or Member thereof, may not be interfered with or denied."

There is also an appropriations provision which states

"No part of any appropriation contained in this or any other Act shall be available for the payment of the salary of any officer or employee of the Federal Government, who--
(1) prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employee of the Federal Government from having any direct oral or written communication or contact with any Member, committee, or subcommittee of the Congress in connection with any matter pertaining to the employment of such other officer or employee or pertaining to the department or agency of such other officer or employee in any way, irrespective of whether such communication or contact is at the initiative of such other officer or employee or in response to the request or inquiry of such Member, committee, or subcommittee."

Whether these provisions apply to active duty military, I am not sure. I do know, however, that even where they clearly do apply, there is great difficulty in enforcing them.
12.11.2007 3:33pm
Davis appears to be somewhat partisan, when you read his article he says one of the reasons he resigned is because he was put in the chain of command under William J. Haynes, and repeats the discredited partison sniping at Haynes:

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 say discredited because at least one actor, John Yoo, who was in a position to know says Haynes opposed waterboarding and argued against it:

Haynes did not approve waterboarding; in fact, he and other Defense Department advisors rejected it. When the Defense Department later assembled a broader working group to study interrogation standards, Haynes again as a matter of policy recommended against adoption of many more aggressive interrogation methods, including waterboarding.
12.11.2007 3:35pm
MLS (www):
wfjag- I have heard a lot of objections to congressional subpoenas in my time, many of them creative, but I can't recall an agency claiming that its housekeeping regulations authorize it to refuse to comply with a congressional subpoena (or perhaps, in this case, forbid it from complying). I doubt that DOD would make such an argument.
12.11.2007 3:40pm
Anderson (mail):
Kazinski, just ask Alberto Mora what *his* opinion of Haynes is. It's not a partisanship thing; it's a decency thing.

Frankly, the worst thing I can say about Secretary Gates thus far is that Haynes still works for him.

(As for Yoo's remarks, "interesting if true.")
12.11.2007 3:59pm
Kazinski - Are you suggesting that anyone who believes waterboarding is torture is partisan and, therefore, should be prohibited from testifying before Congress?
12.11.2007 3:59pm
EH (mail):
Kazinski -

Davis on Haynes: "in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture. "

Yoo on Haynes: "Haynes again as a matter of policy recommended against adoption of many more aggressive interrogation methods, including waterboarding."

These two statements are not mutually exclusive. Davis is saying that Haynes authorized torture, while Yoo says Haynes recommended against "many more...methods, including waterboarding." So, the methods that Yoo says Haynes did approve of (all of them, minus the 'many more'), could still be tortuous, casting truth to Davis' statement.
12.11.2007 4:08pm
I said no such thing, I said that Davis was repeating discredited partisan talking points against Haynes, and therefore seemed to have a partisan agenda. His opinion on waterboarding doesn't enter into it.

Interesting article about Mora, I read it pretty carefully looking for something concrete against Haynes, finally way down there:
A week later, Mora was shown a lengthy classified document that negated almost every argument he had made. Haynes had outflanked him. He had solicited a separate, overarching opinion from the Office of Legal Counsel, at the Justice Department, on the legality of harsh military interrogations—effectively superseding the working group.... The author of the opinion was John Yoo...

So Haynes crime was listening to the concerns of his subordinate, and championing Mora's argument ("he and other Defense Department advisors rejected it" according to John Yoo) and not prevailing in the argument. Mora and Yoo's accounts are pretty similar factually, the big difference is Mora (or the New Yorker) blames Haynes for Yoo's opinion. That hardly seems fair.
12.11.2007 4:24pm
Anderson (mail):
championing Mora's argument

You are not using the same dictionary I'm using.

Faced with a JAG group that was going to adhere to the law, Haynes secretly froze them out with Yoo's notorious b.s. opinion.

Haynes's personal opinions on the practices he enabled do not much interest me, except as a study in pathology.
12.11.2007 4:33pm
ar (mail):
Doesn't the Military Whistleblower Protection Act (10 USC 1034) prohibit restricting a member of the armed forces from lawfully communicating with a member of Congress? Given that pretty blunt restriction, how can the DoD order a servicemember to fail to attend a congressional hearing (especially where, as appears to be the case here, the servicemember wants to testify)?
12.11.2007 4:34pm
Harriet Miers still roams free. This chicken*** Congress doesn't have the single-mindedness of purpose on subpoenas that the wingnut Dan Burton displayed back in the day. Just issue the damn subpoena to Davis, and his lawyer will tell him to disregard the Pentagon's order.
12.11.2007 5:09pm
Active members of the military do not have to comply with judicial process; garden-variety state lawsuits include an affidavivt certifying the defendant is not an active-duty member of the military.

The stretch from appearing in court as a defendant to appearing before Congress is a stretch, but it is not a completely incomprehensible stretch
12.11.2007 5:50pm
Active members of the military do not have to comply with judicial process;

I can't speak to how it works for high-level officers, or what the overarching law is, but I know that down in the company- and field-grade trenches, having a Soldier with a court date means you had damn well better make sure he gets there. I think that under certain circumstances, a summons could potentially prevent someone from deploying overseas. Most post Commanding Generals don't like to aggravate the local authorities by blowing them off, even if they could legally do so.
12.11.2007 6:47pm
So according to Yoo, Haynes made a similar case as Mora, and lost the argument. He lost mainly because Rumsfeld, Addington and Cheney (and Pelosi) wanted a more aggressive interrogation approach. You could fault Haynes for not resigning when Yoo's memo carried the day, but since Mora himself didn't leave until almost 4 years later that argument is a little hollow.

Are you faulting Haynes for letting the OLC in the loop? That probably wasn't his doing, but even so.

I have to say that New Yorker article should also be taken with a grain of salt. When it, and evidently Mora, try to link the Yoo memo to Abu Ghraib it loses all credibility. Those doing the abuse, as multiple investigations showed, were freelancers, and they weren't interrogating prisoners, they were abusing (not torturing) them for amusement.
12.11.2007 7:05pm

I didn't claim it was a great argument. However, DoD Directive 5405.2 is not merely a "housekeeping" regulation by DoD. It affects DoD's relationship with the federal and state judiciary, including limiting the inherent powers of the judiciary to obtain testimony. It also implements various other DoD Directives, Regulations, and statutes. Whether it and the statutes implemented, also limit Congress' inherent powers to obtain testimoney, is a different issue.

One of the statutes implemented is 10 USC 113 (formerly section 133), the powers of the SECDEF. The SECDEF has sweeping powers to promulgate regulations restricting the activities of DoD personnel, especially military personnel.

ReaderY is correct, while it's a stretch, "it is not a completely incomprehensible stretch." I've won worse arguments.

Further, DoD personnel, and particularly military personnel, unlike most other agencies, are subject to criminal sanction for disobeying orders of superiors, and for other conduct, both acts of commission and omission.

There is also the inherent tension of Congress carrying out its duties, and exercising inherent powers, including issuing subpoenas and requiring persons to appear and testify, with the President's powers as Commander in Chief.

It wouldn't take too great a legal brain to tie the matter up in the courts for years. I doubt that either Congress or the White House wants to set a precedent. That would include allowing a military officer to appear and testify before Congress, without express permission by DoD, in response to a subpoena. I am unaware of that ever occurring before, and the President and DoD would likely regard it as a dangerous precedent.

There are lots of examples of this type of tap-dancing. For instance, no President has ever acknowledged the validity of the War Powers Act. The boiler plate language for such reports to Congress is along the lines "consistent with" the WPA, and never "in compliance with" the WPA.

Someone suggested that COL Davis could testify as a private citizen. It's unlikely that that would work, unless the COL wants to be a test case for a court martial. There's many restrictions on First Amendment freedom of speech rights for military personnel. One commentator noted COL Davis' criticism of DoD GC Haynes. While not, on its face, a violation of Art. 88, UCMJ, it walks the line for a violation of Art. 133, Conduct Unbecoming an Officer and Gentleman.

The primary goal is ensuring that the military is subordinate to civilian authorities. That includes requiring military personnel obey orders that are not unlawful on their face. Military personnel don't have to like the orders or duties they receive. However, they are required to obey them, unless they are illegal on their face. COL Davis is essentially arguing that he could not continue as the chief prosecutor as the Tribunal's standards are such that to do so would be an ethical violation. If so, then he was required to resign from the position. There's no complaint about doing that. Going public with his reasons, instead of challenging the procedures under DoD's various internal procedures, is a different matter. Testifying, even in compliance to a subpoena of Congress, over the objections, and likely in disobedence of orders to the contrary, will also be a far different matter.

Since I doubt that either Congress or the White House wants to set any precedent and find out what the "correct" answer is -- and, you've cited statutes that certainly support the conclusion that someone cannot be prohibited from testifying before Congress, although you correctly question whether they apply to military personnel -- I expect posturing on both sides, until some deal is reached and a very scripted presentation is made.
12.11.2007 7:16pm
Public_Defender (mail):
That Colonel must have some really powerful information to warrant such a shut down. Bush lets lots of military people talk to Congress, so he must truly be afraid of what Col. Davis has to say. The Democrats should smell blood.

"discredited partisan talking points"

Do you have any source more trustworthy than John Yoo's unverifiable assertion? Sometimes "talking points" are talking points because they're true.
12.11.2007 8:46pm
You're asking me to prove a negative, I've seen some speculation on Haynes role from various sources but nothing concrete at all. Mora is never quoted in his own words as saying Haynes promoted "cruel" techniques, if fact he says Haynes interceded with Rumsfeld to get a suspension of the harsh techniques the Generals in Gitmo were asking for.

Haynes has the first person statement from the author of the memorandum saying Haynes opposed it.

So what evidence do you or Hayne's accusers have?
12.11.2007 10:51pm
Anderson (mail):
Off topic, we've seen claims in VC threads that CIA's interrogators are trained professionals in that activity.

So I wanted to share this bit from Laura Rozen's blog, where she recounts what her CIA contact told her about John Kiriakou, the CIA spook who's gone public about the waterboarding of Zubaydah:

Kiriakou was, according to this souce, "a ground branch person, the paramilitary staff, he's ... a former military guy who comes in with military skills to do training of foreign military." Why was he used to interrogate Zubaydah? "Because he was available."

Another advantage of torture: it's easy! Anyone can do it!
12.12.2007 10:56am
Anderson (mail):
The peripatetic Col. Davis was on NPR's lunchtime program today, pretty much reprising his LAT op-ed.

He said expressly that he would not go along with the use of evidence obtained via waterboarding; more or less, his words were "if you induce somebody to believe they're going to die if they don't talk," then the evidence isn't acceptable in an American tribunal.
12.12.2007 2:05pm
Public_Defender (mail):
You're asking me to prove a negative, I've seen some speculation on Haynes role from various sources but nothing concrete at all. . . .

So what evidence do you or Hayne's accusers have?

I don't have any additional information. That's part of why I think a hearing could be useful. Bush's effort to stop the hearing is evidence that he has something to hide.
12.12.2007 4:59pm