Monday, December 10, 2007

Why He Left

Morris D. Davis, the former chief prosecutor for the Office of Military Commissions, left his position as the man in charge of the military "trials" of Guantanamo Bay detainees rather abruptly and, at the time, issued a rather terse comment on his decision. In today's Los Angeles Times, Mr. Davis provides more detailed reasons for why he felt it was necessary to disassociate himself from the proceedings.

Essentially, Mr. Davis left because the process had become politicized and engineered to achieve a certain result. Unfortunately, that result was not justice, but rather the carefully engineered convicting of defendants. What is instructive about Mr. Davis' op-ed piece is that it shows just how this perversion of justice was accomplished through the appointment of two administration-friendly officials.

In my view -- and I think most lawyers would agree -- it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the "convening authority" -- a title with no counterpart in civilian courts -- was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective -- not predisposed for the prosecution or defense -- and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg's staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution's pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something -- use specific evidence to bring specific charges against a specific person at a specific time, for instance -- and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, "Trust me, you would have been impressed if only you could have seen what we did in the courtroom" will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.
[Emphasis added]

The final straw for Mr. Davis was another appointee, one who didn't pass muster for a federal court appointment, so he was given another slot, one that didn't require Senate confirmation:

Finally, I resigned because of two memos signed by Deputy Secretary of Defense Gordon England that placed the chief prosecutor -- that was me -- in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the U.S. 4th Circuit Court of Appeals, but his nomination died in January 2007, in part because of his role in authorizing the use of the aggressive interrogation techniques some call torture.

Mr. Davis had already instructed his staff that no evidence obtained by water-boarding was to be used in their prosecution, yet now he was under the direction of someone who felt such techniques were perfectly all right. And so, Mr. Davis resigned, as any person with any conscience and with any sense of justice would.

What is being offered under the Military Commissions Act is not justice, it is itself criminal and antithetical to everything this nation is supposed to stand for. Morris Davis decided he wouldn't be complicit. For that he deserves our respect.

And for letting the public know just what is being done in our name, he also deserves our gratitude.

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