Former Guantanamo Prosecutor: Tribunals Tainted

Air Force Colonel Morris Davis, the former chief prosecutor at Guantanamo, testified Monday on behalf of terror suspect Salim Ahmed Hamdan. Since leaving Guantanamo, Davis has been publicly critical of the tribunals, claiming that the process of prosecuting terror suspects has been politicized. Davis talks with Melissa Block.

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ROBERT SIEGEL, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Robert Siegel.

MELISSA BLOCK, host:

And I'm Melissa Block.

There is a notable about-face at a hearing at Guantanamo Bay, Cuba yesterday. The former chief prosecutor of the military tribunals took the witness stand to testify on behalf of a detainee accused of conspiring with al-Qaida.

Air Force Colonel Morris Davis resigned as chief prosecutor late last year. He said he had concluded that fair trials were impossible, and he claimed the system had become deeply politicized by the Pentagon.

Colonel Davis joins us from Guantanamo Bay. Welcome to the program, Colonel Davis.

Colonel MORRIS DAVIS (U.S. Air Force; Lawyer): Well, thank you for having me.

BLOCK: When you testified yesterday, you talked about political pressure that you said was being exerted on you as chief prosecutor. Why don't you describe what you mean?

Col. DAVIS: Well, from the start, there was a - I think a pervasive attitude that they were going to call this a military commission, that they didn't trust the military to run it. You had political appointees that seemed intent on outcomes and not doing justice, and it just became unbearable.

In October of last year, DoD General Counsel Jim Haynes, who was one of the advocates of the - what became known as the torture policy, was placed in a chain of command above me, and that was when I said enough was enough and quit.

BLOCK: You also talked about specific timing of cases, and you quote former Brigadier General Thomas Hartmann, who is in charge of the military commission, telling you, if we don't get some cases going before the election, this thing is going to implode.

Col. DAVIS: That was a pervasive thing not just from General Hartmann, but from a number of people. And, in fact - and I participated in the same discussions, and I've - it probably reflects a reality that if these things don't get moving before November that whoever takes the Oval Office is likely to shut it down. And if we could get them up and running and a head of steam behind it - particularly the 9/11 cases, if you could get Khalid Sheikh Mohammed and the other 9/11 conspirators before a court and get the victim families energized that whoever wins the White House would make it harder to stop. But if we didn't get it started, that it was sure to implode.

BLOCK: You also testified about what you called an unethical bind that you thought you were in. It had to do with the use of evidence that was obtained by waterboarding or other methods of torture. Why don't you tell us what you told the court?

Col. DAVIS: Yeah. What I told the court - for attorneys under our ethical rules, a prosecutor is not allowed to offer any evidence in court that was obtained by illegal means. In the case of waterboarding, you know recently, you've had the director of the CIA, the attorney general, the former director of the FBI, and other senior officials including the judge advocate generals of all of the services that have said, in their view, waterboarding constitutes torture.

General Hartmann - my policy for two years had been we were not going to offer any evidence obtained by waterboarding. When he came in, he said, what makes you think you have the authority to make those kinds of decisions? Ethically, I think it's putting the prosecutors in a bind to force them into court to offer evidence that seems to be - not unanimous but a fairly unanimous agreement, was obtained by torture.

BLOCK: Colonel Davis, you were a champion of these military commissions; you helped Congress write the laws setting the tribunals up. What was it like for you to be on the other side of the witness stand yesterday testifying for the defense?

Col. DAVIS: Well, it was really weird. You know, for two years I came down here in the commissions building - the courtroom is on the ground floor, the offices are on the second floor, the prosecution is on one end, the defense on the other. And so, for two years, I go upstairs and turn left and there were a number of times this week I had to catch myself and do an about-face and turn right because I was here for the defense and not for the prosecution.

BLOCK: The defense in this case is trying to get the charges dismissed against the defendant, Salim Ahmed Hamdan. Do you remain convinced that he's guilty?

Col. DAVIS: Yeah, and I testified about that yesterday that I've reviewed the evidence, I personally approved the charges on him, there's little doubt in my mind of his guilt, but he's entitled to a fair trial and a full, fair and open proceeding. And this current process, in my view -they call it military justice; in my view it's neither military nor justice.

BLOCK: Is this a conflict for you, you say you're convinced that Hamdan is guilty but you're testimony is being used by the defense to set him free?

Col. DAVIS: Well, it won't set him free. I think what I'm advocating for, and I think a lot of other people and even the defense in talking with them, I think what we all agree on is he's entitled to a fair trial. And as I've said I've reviewed the evidence and I think there is ample evidence to prove his guilt, and I think he ought to be held accountable. But it ought to be in a system of justice that we can be proud of and not ashamed of.

BLOCK: Well, Colonel Davis, thanks for talking with us.

Col. DAVIS: Okay. It's my pleasure. Thank you.

BLOCK: Air Force Colonel Morris Davis is the former chief prosecutor for the military commissions at Guantanamo Bay, Cuba.

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