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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.

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Col. Davis for the Defense:

The Washington Post reports on Col. Morris Davis' testimony at Salim Ahmed Hamdan's military commission trial yesterday.

Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Davis said he wants to wait until the cases -- and the military commissions system -- have a more solid legal footing. He also said that Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "

Davis also decried as unethical a decision by top military officials to allow the use of evidence obtained by coercive interrogation techniques. He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."

He also said Hartmann took "micromanagement" of the prosecution effort to a new level and treated prosecutors with "cruelty and maltreatment." Hartmann, he said, was trying to take over the prosecutor's role, compromising the independence of the Office of Military Commissions, which decides which cases to bring and what evidence to use.

According to the story Davis may not have been the best defense witness, however, as he also testifed that he was convinced of Hamdan's guilt.

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Brigadier General Hartmann Removed from Role in Military Tribunals:

As covered in prior posts, Col. Morris Davis, the former chief prosecutor at Guantanamo, resigned his post alleging, among other things, that military officers, including Brigadier General Thomas Hartmann, were exercising undue influence over the conduct of the trials of detainees and compromising the impartiality and fairness of the military commissions. Now it appears that at least one military judge concurs with Col. Davis' assessment. As the NYT reports:

The judge, Capt. Keith J. Allred of the Navy, directed that Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, have no further role in the first prosecution, scheduled for trial this month.

General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantánamo military prosecutor, Col. Morris D. Davis of the Air Force.

Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture.

“National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantánamo judges are not typically released publicly until days after being handed down. . . .

Ruling on a defense lawyers’ request that said General Hartmann had exerted unlawful influence over the prosecution, Judge Allred said that public concern about the fairness of the cases was “deeply disturbing” and that he could not find that the general “retains the required independence from the prosecution.”

Pentagon officials could ask the judge to reconsider, could appeal to a special military appeals court created to hear Guantánamo cases or could replace General Hartmann.

General Hartmann has denied Colonel Davis’s assertions and said the commission system would “follow the rule of law.” He has also said he has pressed prosecutors and others involved in the tribunals to move the cases more quickly. . . .

Judge Allred’s ruling followed a hearing in Guantánamo on April 28 at which Colonel Davis said General Hartmann pressured him in deciding what cases to prosecute and what evidence to use. The judge called the hearing after lawyers for a detainee, Salim Hamdan, said his charges were unlawfully influenced.

Related Posts (on one page):

  1. Brigadier General Hartmann Removed from Role in Military Tribunals:
  2. Col. Davis for the Defense:
  3. A Prosecutor for the Defense:
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