Guantanamo Awaits About-Face

Team Infidel

Forum Spin Doctor
Wall Street Journal
April 28, 2008
Pg. 4
Ex-Chief Prosecutor Expected to Allege Politicized Agenda
By Jess Bravin
When military prosecutors enter Guantanamo's heavily guarded courtroom Monday, they can expect to face a spectacle: their former boss, in uniform, testifying against them.
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.
The Bush administration's military commissions plan has careered through internal disarray, administrative setbacks and legal debacles since the president announced it in November 2001, and still has yet to conduct a single trial. But Col. Davis's appearance may be the strangest twist yet.
"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."
A Defense Department spokesman declined to comment for this article or to make Gen. Hartmann available for an interview. But Maj. Gen. Charles Dunlap, the Air Force's No. 2 lawyer, says, "I've known Moe Davis for many years and I consider him a very fine officer." Gen. Dunlap says he can't comment on the substance of Col. Davis's testimony, but notes that "everything is unusual with respect to Guantanamo."
Mr. Hamdan's military attorney, Lt. Cmdr. Brian Mizer, says Col. Davis makes "an incredibly credible witness" because he still supports military commissions, in principle, and makes no bones about his belief that most Guantanamo prisoners are guilty. "He probably even believes that my client is one of those bad men," says Cmdr. Mizer, although "we certainly don't agree on that point."
There's no guarantee that Col. Davis will actually testify -- Guantanamo proceedings are unpredictable -- but if he does, it will mark a turnabout for the former face of the Pentagon's prosecution effort.
A folksy North Carolinian who plays the electric guitar and loves Nascar racing, Col. Davis, 49 years old, may be the only field officer to pay his way through college by working as a bail bondsman.
His school was located in a dry community, so students would head out of town to drink -- and then drive home, drunk. "Most kids at two in the morning didn't have bond" money if they were arrested for drunk driving, he says, so there was a good living to make as the only bail bondsman around.
After earning his law degree at North Carolina Central University, Col. Davis joined the Air Force's legal branch, the Judge Advocate General's Corps. He was serving as deputy commandant of the Air Force JAG School in Alabama on Sept. 11, 2001. Three months later, when President Bush announced his plan to try alien terrorism suspects by military commission, Col. Davis says he volunteered to serve as chief defense counsel.
"Everybody was so mad at that point, that I wanted to make sure this wasn't just gonna be a line 'em up and shoot them kinda process," he says. He didn't get the job, and went on to other assignments, and in 2005 had just relocated to a base in Wyoming when he was asked to take over as chief prosecutor.
In 2004, several Air Force officers had resigned from the Guantanamo prosecution office, complaining that the process was unfair and prisoner-abuse complaints were being overlooked. An internal Pentagon probe rejected those charges, and Col. Davis says the Air Force wanted to patch things up by supplying an officer to take charge of the prosecution.
Col. Davis already was among the more outspoken officers in a top-down institution. In 1999, he had filed a complaint against a superior officer after he had been asked to provide legal advice for the commander's wife. Col. Davis says an internal review agreed that it was improper to ask him to work on nonofficial projects -- but there was a price to pay.
"Before this happened we were always invited to all the parties on base, and afterward we were taken off the complete chain of any invites, they all stopped," says Col. Davis's wife, Lisa.
He also won attention for his critique of the military's approach to the news media. The service had done "an abysmal job," he says, responding to such controversies as the Air Force Academy sexual-assault scandal. "It is time to take the offensive and influence the story rather than wait until forced to go on the defensive," he wrote in a military journal article in 2004.
Once installed as chief prosecutor, Col. Davis put his theory into practice. He championed the commissions in academic periodicals such as the Yale Law Journal, wrote newspaper opinion pieces and held televised press conferences where, in one memorable moment, he likened a Guantanamo defendant to Dracula.
"If you really want to get the message out, you have to find a way to give it some appeal," he says. While one former defense lawyer could "get up and make the most legally accurate, factually correct statement that could possibly be made" to reporters, his comments "wouldn't see the light of day," Col. Davis says. "And I could get up and talk about vampires or Bart Simpson" and lead the article.
Although his comments could sometimes cause superiors to wince -- at one press conference, he upbraided a Supreme Court justice -- his public advocacy helped lead the Pentagon general counsel, William J. Haynes III, to urge Col. Davis's promotion to general officer.
After the Supreme Court in 2006 struck down the Bush administration's first effort to set up military commissions, Col. Davis worked with staffers for Sens. John McCain (R., Ariz.) and Lindsey Graham (R., S.C.) to help fashion the Military Commissions Act, which reinstated a modified version of the trials. Col. Davis argues that the Pentagon breached a provision he helped write intended to shield the prosecutor from improper influence.
Col. Davis's stand has irritated senior Pentagon officials and, he says, effectively ended his military career. He says he has filed papers to retire later this year.
But before he leaves, he says he may have one more internal complaint to file.
"I'm the only person I know of who left the commissions who didn't get a decoration," he says. "Everybody else when they left, they had a farewell lunch and they gave him a framed picture. For me it was pack up in the middle of the night and get the h -- out."
 
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