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A Prosecutor for the Defense:

Former Guantanamo Bay prosecutor Col. Morris Davis is scheduled to testify in the military commission trial of Salim Hamdan today -- for the defense. The WSJ reports:

Col. Morris Davis, for two years the chief Guantanamo prosecutor, is expected to testify that the operation he once led has been infected with political agendas and corrupted by the Achilles' heel of military justice -- unlawful command influence. . . .

"It's not that I'm sympathetic to the detainees or say they should get a free pass," says Col. Davis, now director of the Air Force Judiciary. "But I do think they are entitled to a fair trial."

Attorneys for terrorist leader Osama bin Laden's former driver, Salim Hamdan, called Col. Davis as a witness after reading his public criticism of the prosecution effort he once led. Col. Davis resigned in October after an internal Defense Department review rejected his claims that it was improper for the same officer, Brig. Gen. Thomas Hartmann, to direct the prosecution effort and, simultaneously, provide legal advice to the commissions administrator, who is supposed to make impartial decisions over whether prisoners are charged and what resources the defense receives.

Among other complaints, Col. Davis says that Gen. Hartmann, who was appointed last summer, overruled his decision to bar use of statements taken through waterboarding, an interrogation technique that simulates drowning; critics call it torture.

Col. Davis says that Gen. Hartmann told him "there were opinions out there that there was nothing unlawful about waterboarding these guys, and these decisions are made at a much higher level."

Here are some of our prior posts on Col. Morris Davis' concerns about military commissions.

AntonK (mail):

According to Rivkin and Casey in the Wall Street Journal, law professors, activist lawyers, and pundits are accusing the attorneys who have advised the President on the war on terror of aiding and abetting criminal activity. Among these advisers are some of country's finest legal minds. Liberal critics are attempting to fix them with responsibility for government actions ranging from Abu Ghraib to denying habeas rights to Gitmo detainees.
Indeed.
4.28.2008 9:42am
jccamp:
There have been published reports that only three people have been subjected to waterboarding, and that in each case, the use was justified by fear that the subject withheld information of an imminent attack.

That statements obtained via waterboarding may now be introduced as evidence (huh?) seems to imply that there may be more than 3 such persons affected, and that the statements obtained via waterboarding were much more than about possible attacks in the future.

I'm good with the concept of using force if necessary when we're talking about preventing an incipient attack, but using force to obtain self-incriminating statements? I don't think so, and I can't believe that anything from Justice or the Executive Branch asserts this either. At least, I hope not.
4.28.2008 9:49am
George Weiss (mail) (www):
jccamp:

ok ill bite:

where are these reports? i doubt such information is realizable since the actual number of people subject to interrogation techniques is for sure classified.
4.28.2008 10:22am
Bart (mail):
What exactly is the relevance of this testimony unless Col. Morris Davis can show that the current military judge or the current military prosecutors for this case have been corrupted by undue command influence or can demonstrate that the specific evidence offered by this prosecutor is unreliable.

I hope that the military commission judges are not going to be so afraid of doing something wrong that they allow the commissions to be turned into a Milosovich like political circus.
4.28.2008 10:36am
David Schwartz (mail):
What exactly is the relevance of this testimony unless Col. Morris Davis can show that the current military judge or the current military prosecutors for this case have been corrupted by undue command influence or can demonstrate that the specific evidence offered by this prosecutor is unreliable.
The relevance is that when you're arguing that these same things are happening in this case, that they happened in previous cases make it much more likely that they are happening in this case.

For example, suppose I were arguing that a policeman was lying in a case where it's my word against a police officer's. Certainly evidence that police men frequently lie in situations similar to this one is relevant to refute the impression that police men almost never lie.

Now, we all know police men lie a lot, so there's almost no point in a typical case. But this case is far from typical, and might not be well understood the type of improper influence and manipulation that goes on behind the scenes.
4.28.2008 10:47am
ithaqua (mail):
The liberals said that the War on Terror could be fought with current legal rules. The liberals said that they wanted fair trials and all the accouterments of civilian justice. Bush knuckled under and gave them fair trials - and the liberals just kept whining. People like "Col." Morris Davis won't be satisfied until every Gitmo inmate is dropped right back onto the battlefield with a rifle, a set of body armor, and a pat on the head.

"That statements obtained via waterboarding may now be introduced as evidence (huh?) seems to imply that there may be more than 3 such persons affected, and that the statements obtained via waterboarding were much more than about possible attacks in the future."

I have no concerns whatsoever about anyone in Gitmo being waterboarded. On the other hand, I trust our government to tell us the truth. It's most likely that the question of 'waterboarding' is being brought in as a red herring by the pro-terrorist side to try and discredit confessions forcibly extracted by harsh but righteous and legal means.

"Attorneys for terrorist leader Osama bin Laden's former driver, Salim Hamdan[...]"

Right, you can stop right there. If this fact is stipulated, no 'trial' is necessary; if the bastard's usefulness has ended, drag him out into the street and shoot him. And take his attorneys with you. I'm so sick of this farce. It's like the OJ Simpson trial - every single honest person knew he was guilty as hell, but lying crooked lawyers manipulated our pro-criminal justice system and he walked free to kill again. And OJ was 'just' a murderer; if we let these terrorists walk, we risk losing entire American cities to nuclear attack. Apparently liberals like "Col." Morris Davis are in favor of this; I'm in favor of seeing "Col." Morris Davis share his client's fate.
4.28.2008 11:18am
J. F. Thomas (mail):
Apparently liberals like "Col." Morris Davis are in favor of this; I'm in favor of seeing "Col." Morris Davis share his client's fate.

I don't understand why you are putting "Col" in quotes. Are you denying he is a member of the military?
4.28.2008 11:42am
FC:

police men


Roy Batty, is that you?
4.28.2008 12:03pm
whit:
"Now, we all know police men lie a lot"

uh, no we don't.

and why MEN in particular?
4.28.2008 12:35pm
Ben P (mail):

jccamp:

ok ill bite:

where are these reports? i doubt such information is realizable since the actual number of people subject to interrogation techniques is for sure classified.


I'll hedge on his use of the word "published" since I'm not exactly sure of the source, but at the very least the "three people" idea is a fairly common refrain among commenters here and other places.
4.28.2008 12:49pm
Philistine (mail):
""Waterboarding has been used on only three detainees," [CIA Director Michael] Hayden told the Senate Intelligence Committee, publicly specifying the number of subjects and naming them for the first time, as Congress considers banning the technique."

2/5/08 Story
4.28.2008 12:58pm
George Weiss (mail) (www):
philistine et all.

ah ok im surpised the let that info out. my bad
4.28.2008 1:39pm
Jiminy (mail):
To ithaqua's point about the OJ trial - even the prosecutors realized why they lost. It wasn't the lying crooked lawyers, but rather the police men who tainted the crime scene and possibly manipulated evidence. The defense exposed the police department as being at best incompetent, and at worst deliberately planting evidence. That creates the shadow of doubt on OJ's culpability in terms of that case. The sick joke is that he definitely committed the crime and if those clowns hadn't screwed it up, the conviction would have been much easier to obtain.

Bush didn't "knuckle under" - he took a working system, broke it deliberately to avoid oversight and recreate the rules as he wanted, then had to retreat once people found out what he was doing. That's not knuckling, that is being caught with your hand in the cookie jar.

Paternalism is the worst form of government, period. Again, he would have had much less trouble trying to convict these war criminal terrorists who were caught on battlefields and little question to their allegiances, but he couldn't resist the old Torquemada treatment that thugs prefer when there's hard work to be done.

Ithaqua, your screed's heart is in the right place. It's right to feel rage and fury for the crimes committed against us. And its wrong to sink to the level of the criminals that we fight. We should have concentrated our efforts on Afghanistan and we could have wiped out their organization's leaders - and sent the right message to those who would harm us - that we wouldn't ignore their crimes and we want to wipe out Islamic extremism.

But if you can only bother to see fifth columnists in our armed services, in a colonel no less, then nobody can help you.
4.28.2008 1:48pm
jccamp:
George,

Let's see. The latest that I'm aware was in today's (Monday) Wall Street Journal. But I have seen the same numbers before in print.

JC
4.28.2008 2:27pm
jccamp:
But my point in my OP was that the numbers are questionable, since there is a decision to allow such coerced testimony as evidence. So, maybe we're saying the same thing.
4.28.2008 2:29pm
George Weiss (mail) (www):
jccamp. right i gotcha now. im surprised they let it out..and it was recent and i didnt notice.

and i agree with you that the statement made by them that it has only been three is not to be taken as gosphel-it may be right-but i wouldnt put it past them to later come up with something like "oh yeah we only did 3 but agency x y and z handled these other cases...
4.28.2008 5:21pm
davod (mail):
"Bush didn't "knuckle under" - he took a working system, broke it deliberately to avoid oversight and recreate the rules as he wanted, then had to retreat once people found out what he was doing. That's not knuckling, that is being caught with your hand in the cookie jar."

WTF? I have difficulty uderstanding what you mean. What working system.
4.29.2008 8:33am
J.McFaul (mail) (www):
"What working system?"

The Military Justice system.

As a former Military lawyer, we take our two oaths of office very seriously. Prosecutors cannot prosecute the case if they do not personally believe in the defendant's guilt.

Prior to trial, the Article 32 invesigations are generally thorough and and reported to the convening authority (in most cases, a flag officer). It is not uncommon for the convening authority to reduce charges or even dismiss them, in favor of administrative remedies, if justice requires.

Defense counsel pride themselves on an agressive defense and I've had more than a couple of "A Few Good Men" cross-examinations of senior officers attempting to fob off their own incometence onto their juniors.

The spectre of command influence arises from time to time and, in many instances, prosecutors and defense counsel stand by their twin oaths as lawyers and as commissioned officers sworn to defend the Constitution against enemies "foreign and domestic" to do the right thing. (I have acused certain senior officers of being domestic enemies of the Constitution.) Anybody who advocated the necessity of "convictions over attempting to achieve "justice" is also a domestic ememy of the Consitution, in my opinion.

I think President Bush and his lawyer synchopants didn't understand the miltary lawyer's sense of obligation of duty to country at the expense of the lawyer's own personal career that is held as a point of honor by most military lawyers.

LCDR Charles Swift and now COL Morris Davis are exemplars of this attitude that is apparently foreign to the attorneys appointed primarily on the basis of political loyalty.
4.29.2008 2:03pm
PDXLawyer (mail):
As a civilian lawyer, I'm puzzled. Why is is bad for there to be "command influence" on the prosecutor? I can see where there'd be a problem with "command influence" on the defense counsel or on the tribunal. After all, they are supposed to be serving other interests than simply that of furthering government policy. But, at least in the civilian world, the whole function of the prosecutor is to implement the policy of the government, within the limits of the law and good faith.

The argument seems to be that the exercise of prosecutorial discretion is inherently a *professional* function rather than a political/command/leadership one. If so, this seems to be more like a bureaucratic turf war than a principled legal stance. What am I missing?
4.29.2008 10:25pm
J.McFaul (mail) (www):
"Command Influence" is to the military as elected judges, politically ambitious prosecutors, underfunded public defenders and publicity tainted jury pools are to due process in the civilian world, only potentially worse.

A court martial is "convened" by the commanding officer, the same officer that may have instituted an investigation and approved the filing of charges in the first place. In some situations, the members of the court martial(the "jury) are individually selected by the same commanding officer, who, in the past, also indivdually selected the prosecutor, the military judge and the defense counsel.

The members of the court martial all are subordinate officers to the commanding offcier convening the court martial so their future promotions depend on not displeasing the commanding officer or appearign "soft on crime." There is only a single prememptory challenge in most cases, so jury selection by the commanding officer can play a huge role in the outcome. In short, the commanding officer can stack the deck and strongly hint at the desired outcome--without safeguards that took some time to develop. The commanding officer also approves the sentence if there is a conviction. Opportunities for influence abound.

Now and then a commanding officer will view court martials as poor vehicles to determine individual guilt or innocence and better suited to maintaining good order and discipline on the unit as a a whole--sometimes conflicting goals, since determinations of individual guilt can sometimes only looosly be associated with good order and dscipline of the entire unit.

For many years, military courts were perceived as less than fair becasue of rampant command influence. The establishment of the UCMJ, and the automatic appeals in serious cases to at least the civilian Court of Military Appeals, along with other safeguards, eliminated many of problems associated with rampant command influence.

In subtle forms it always poses a risk, and fairness often depends on the personal integrity of the prosecutor, military judge, defense counsel and court members. Commanding officers,, as a general rule, do not want to expend the time, effort, expense and wasted manpower to convene a court martial that results in an aquittal. As a gneral rule ther are more safeguards in the pre-trial process than in civilian courts, often resulting in reduced or dropped charges before the trial under circumstances unlikley to occur in the civilian world. I,a s a defense counsel have personally met withteh commanding officer and gotten the CO to independently evaluate evidence and drop charges in the interest of justice, when similar civilian cases would have been tried.

An Article 32 investigation, loosely equivalent to a cross between a grand jury indictment and a preliminary hearing, is a fully ocntested event and ham sandwiches seldom get court martialed. Guilty pleas can sometimes take longer than a bench trial, because the inquiry is so exhaustive and detailed.
4.30.2008 4:13am