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MADELEINE BRAND, host:

Now to the debate over foreigners accused of terrorism. The Senate Judiciary Committee has been debating what should happen to the prisoners at Guantanamo Bay.

Yesterday senators wanted to hear from the former chief prosecutor at Guantanamo, Air Force Colonel Morris Davis, but the Pentagon refused to allow him to testify, saying that former military commission staff members should not be allowed to testify on the Pentagon's behalf.

That did not sit well with Committee Chair Democratic Senator Dianne Feinstein.

Senator DIANNE FEINSTEIN (Democratic, California): I wish the administration would allow him to appear. Unfortunately I have to conclude that by prohibiting Colonel Davis from testifying, the administration is trying to stop a fair and open discussion about the legal rights of detainees at Guantanamo.

BRAND: Colonel Morris Davis joins me now.

Welcome to the program.

Colonel MORRIS DAVIS (U.S. Air Force) Thank you for having me.

BRAND: You recently resigned as chief prosecutor at Guantanamo and you wrote about your reasons in an op-ed published this week in the Los Angeles Times. And you say your main reason for resigning is that the military commissions, that basically the way they are carried out are not fair to the defendants. How so?

Col. DAVIS: My concern is that is we've really taken military out of military commissions and inserted politics in its place. And I took the job more than two years ago with the agreement I'd stay in the job as long as I thought we were committed to providing full, fair and open trials. And in October of this year I concluded that I couldn't live up to that commitment. I couldn't ensure full, fair and open trials, and I resigned.

BRAND: How do you think they have been politicized?

Col. DAVIS: The final straw, the one that really broke the camel's back for me, was on October the 3rd Deputy Secretary of Defense Gordon England signed memorandums that placed DoD General Counsel Jim Haynes in a command position over me with the authority to issue orders to me as the chief prosecutor.

Prior to that, the prosecution had pretty much independence, and I think it's a matter of public record now, I'd instructed my staff back in 2005 that we'd use no evidence derived from waterboarding.

I think you heard during the testimony yesterday from General Hartman, he thinks that evidence may be admissible. My opinion is if you induce someone to believe they're going to die if they don't talk, that has no place in a courtroom. So I thought it was time to leave.

BRAND: If you could flesh out a little bit more about the process itself, because you're saying that it - the way it's set up, you believe is fair, right? But you don't think it's being carried out...

Col. DAVIS: Exactly. Yeah. I think Congress, I think, gave us a very good piece of legislation with the Military Commissions Act. The problem I see is not in the statutory framework; it's in the execution and implementation of that by political appointees who seem intent on trying to control the process in order to ensure outcomes. And that's not the way you do justice in an American system of justice.

BRAND: You have also been quoted as saying you wondered whether or not some of these prosecutions would be speeded up to affect the 2008 presidential race.

Col. DAVIS: One way or another, there is going to be someone new in the White House after the elections next fall. And if you listen to the candidates on both sides, there is not a lot of support for Guantanamo and military commissions.

The thought was if we could get these cases going and get some momentum behind it and get Khalid Sheikh Mohammed into a courtroom and get, you know, a head of steam behind this, that whoever wins next year, it would be hard to stop, you know, once the process is rolling. But if it's not rolling, it'd be very easy to kill it.

BRAND: Now, when the Supreme Court announced last spring that it was going to review the Military Commissions Act, you objected at the time, saying the court was meddling. Do you still believe that?

Col. DAVIS: It's certainly their prerogative, and I'm not going to second guess their decision. As the chief prosecutor, it was frustrating that, you know, as we are trying to move forward, to repeatedly have these speed bumps thrown in front of us.

BRAND: Air Force Colonel Morris Davis, thank you for joining us.

Col. DAVIS: Well, thank you for having me.

BRAND: Colonel Morris Davis is a former chief prosecutor for the Office of Military Commissions.

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