CUBA:A former top prosecutor of US terrorism cases is denouncing the system, writes Josh Whitein Guantánamo Bay, Cuba
THE US defence department's former chief prosecutor for terrorism cases has appeared at the controversial Guantánamo Bay detention facility to argue on behalf of a terrorism suspect that the military justice system has been corrupted by politics and inappropriate influence from senior Pentagon officials.
Sitting just feet from the courtroom table where he had once planned to make cases against military detainees, Air Force Col Morris Davis instead took the witness stand on Monday to declare under oath that he felt undue pressure to hurry cases along so that the Bush administration could claim before political elections that the system was working.
His testimony in a small, windowless room - as a witness for Salim Ahmed Hamdan, an alleged driver for Osama bin Laden - offered a harsh insider's critique of how senior political officials have allegedly influenced the system created to try suspected terrorists outside existing military and civilian courts.
Davis's claims, which the Pentagon has previously denied, were aired as the US Supreme Court nears a decision on whether the Military Commissions Act of 2006 that laid the legal foundation for these hearings violates the Constitution by barring any of the approximately 275 remaining Guantánamo Bay prisoners from forcing a civilian judicial review of their detention.
Davis told Navy Capt Keith J Allred, who presided over the hearing, that top Pentagon officials, including deputy defence secretary Gordon R England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value". Davis said he wants to wait until the cases - and the military commissions system - have a more solid legal footing.
He also said that defence department general counsel William Haynes, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.
"He said, 'We can't have acquittals'," Davis said under questioning from Navy Lieut Commander Brian Mizer, the military counsel who represents Hamdan. "'We've been holding these guys for years. How can we explain acquittals? We have to have convictions'." Davis also decried as unethical a decision by top military officials to allow the use of evidence obtained by coercive interrogation techniques.
He said Air Force Brigadier Gen Thomas W Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture - it puts a prosecutor in an ethical bind," Davis testified.
But he said Hartmann replied that "everything was fair game - let the judge sort it out". Hartmann took "micromanagement" of prosecution efforts to a new level and treated prosecutors with "cruelty and maltreatment".
Hartmann, he added, was trying to take over the prosecutor's role, compromising the independence of the Office of Military Commissions, which decides which cases to bring and what evidence to use.
Davis, who defended the commissions process initially, testified to resigning as chief prosecutor last year, as top officials increased pressure on him to make decisions he thought inappropriate. He now heads the Air Force Judiciary and plans to retire.
Hamdan, a Yemeni detainee who next month could be the subject of the first full military commissions case at Guantánamo Bay, listened intently to Davis's translated words through headphones, watching his former adversary make a case that the commissions are tainted. But in the morning session Hamdan appeared to show some evidence of mental deterioration, which his attorneys have ascribed to mistreatment and solitary confinement. He seemed in a daze when led into court in a khaki detention uniform.
Independent legal experts have criticised the commissions process because its rules allow hearsay or coerced evidence with approval of a military judge; defendants are barred from using habeas corpus petitions to force a review of their detention, and convictions can be decided by panels of serving military officers without a unanimous verdict, except in capital cases.
Davis's concerns, which he has previously raised with reporters, are more narrow: that the process has been subverted. He told the hearing that he thought Hamdan should be prosecuted for his alleged crimes and he said he "never had any doubts about Mr Hamdan's guilt".
But he said that top military officials went around him when he was chief prosecutor, for example, to negotiate plea agreements, and that politicians forced him to press charges against Australian David Hicks even though he would have rather gone after other suspects first. When Hicks struck a secret plea deal that brought his release, Davis said he was not a party to it. - (Washington Post service)