Guantanamo Justice

Try to force those two words together.

On October 4, 2007, Colonel Morris D. Davis resigned as chief prosecutor at
Guantanamo Bay, and he has devoted considerable time, ever since, to giving his
reasons why. Confessions extracted from defendants under torture were to be
admitted as evidence at the trials. This breach of international law in a legal
proceeding, Colonel Davis found unconscionable, and it was perhaps the largest
single cause of his resignation.

But there were other disagreements. Colonel Davis had been advised by Brigadier
General Thomas W. Hartmann, at the Office of Military Commissions, to mount
prosecutions that would have political value for the Cheney-Bush
administration. In an apparently high-minded conversation, on the other hand,
he was informed by William J. Haynes II, the general counsel of the Pentagon,
that the Guantanamo trials were meant to become a sort of Nuremberg Trials for
our time. Yet this dignified precedent, too, led back to politics and facade.
When Colonel Davis pointed out that the Nuremberg Trials sounded like an
excellent standard to aim for--adding that some of the Nuremberg defendants had
been acquitted, and this was among the facts that lent credibility to the
proceedings--his simple reminder was greeted with consternation.

As Davis recalls, "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"; and at that
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

So Colonel Davis has written editorials and given interviews that expose the
rigged system at Guantanamo: a set of procedures corrupted by the intent to use
evidence obtained by torture, and, much more (as he sees it), by the constant
intervention of supervisory officers outside the system of military justice,
functionaries who have in view the political fortunes of Dick Cheney and George
W. Bush. The latter charge is so exceptional on the face of it that skepticism
might be called for in any setting other than that of Cheney-Bush, where such
meddling has proved itself the rule.

All of this matters now because Colonel Davis has agreed to testify on behalf of
one of the defendants, Salim Ahmed Hamdan.

A spirit far less candid than skepticism--a tone of archness and a misplaced
hunt for "human interest"--badly vitiated William Glaberson's February 28 New
York Times
story "Ex-Guantanamo Prosecutor to Testify for Detaineee." Rightly
calling Colonel Davis "one of those critics who will not go away," Glaberson
went on to characterize him as a man "willing to turn on the system he helped
run." Turncoat is the word that hovers over that sentence, yet the same thing
could have been said in different words. The truth is that Colonel Davis risked
his career to expose the injustice of a system that paid his salary. How many
have the strength to "turn" in quite this way?

Glaberson quotes Colonel Davis's view that he is well situated to unsettle the
complacency of the Pentagon "and try to get this fixed"--but then catches him
"enjoying some aspects of his new role." No explanation is offered for that
curious comment. But Colonel Davis is described, elsewhere in the article, as
"provocative," and perhaps the message is clear. The article skirts the edge of
saying that a man who holds two opposed views at different times--one of which
pits him against his associates--has crossed a line beyond which all bets are
off regarding the sobriety and soundness of his character. Yet what were the
opposed views? That some of the detainees are dangerous terrorists who ought to
be prosecuted with the greatest energy and resourcefulness, but that, in any
case, all deserve fair trials, and a foregone conclusion of "all convictions"
will serve neither justice nor the interests of the United States. Where
exactly is the contradiction?

The Glaberson story is pestered by other peculiarities. Bad editing--Colonel
Davis's pre-Guantanamo life drops out of nowhere into paragraph eighteen and is
finished in two sentences--supports the bad writing to such an extent that one
hardly knows whom to blame. Inexplicably, this report of February 28 omits the
fact that, on February 25, the Department of Defense announced the resignation
of William J. Haynes II--someone whose disappearance at just this moment might
be supposed to give a certain plausibility to Colonel Davis's charges. And when
Glaberson tells us that Colonel Davis "suggested darkly that there are 'people
at key points in the process, that I just don't know what their allegiance
is,'" there is really nothing dark about the suggestion. The main person in
question is Susan J. Crawford, the convening authority of the Military
Commissions: a protege of Dick Cheney (as Scott Horton described her in a
widely available column) and a close associate of David Addington. Now, what
was that about "darkly suggested"?

Again, why does Glaberson say that Colonel Davis has "written op-ed pieces"
(giving the impression of a publicity seeker) and why does he cite an interview
in The Nation (giving the impression of a left-wing constituency) when the most
recent and remarkable of Davis's editorials appeared on February 17 in the New
York Times
? It is entitled "Unforgivable Behavior, Inadmissible Evidence," its
subject is "waterboarding," and Glaberson would have done well to ask Colonel
Davis what moral consideration determined his use of the word unforgivable.

If we outlive these times, when American liberty is under attack by Americans,
and so few in journalism and politics have shown the civic courage exhibited by
so many in the judiciary and the armed services, any honor we recover will be
owed in large part to officers with names like Batiste and Swift and to judges
with names like Taylor, Rodgers, and Walton. Colonel Morris Davis is another of
that company, and only a perversion of the idea of news gathering could reduce
his protest to an obscure case of office politics.