From Chief Prosecutor To Critic at Guantanamo
By Josh White Washington Post Staff Writer Tuesday, April 29, 2008; A01
GUANTANAMO BAY, Cuba, April 28 -- The Defense Department's former chief prosecutor for terrorism cases appeared Monday at the controversial U.S. detention facility here 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.
. . . Davis said he wants to wait until the cases -- and the military commissions system -- have a more solid legal footing. He also said that Defense Department general counsel William J. Haynes II, 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 Lt. Cmdr. 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 Brig. 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."
Everything is fair game, evidently, except the game itself.
This is not an accusation from some white-shoe lawyer, but from an active-duty Air Force colonel, who was once the Defense Department's chief prosecutor for terrorism cases. The charade we are trying to hide in a windowless building at Guantanamo, Alice-In-Wonderland like, is becoming curiouser and curiouser.
America has no magic formula as the land of the free and home of the brave, except its unparalleled practice of assuming all men innocent before a court of law. This administration has sought to separate and isolate those accused 'terrorists' from that hallowed principle on the basis that they were not and are not Geneva-protected military adversaries, but individuals, out of uniform and not part of a recognized military unit.
In a word, terrorists.
Terrorists are criminals. Unremarkable from criminals we tried under the laws of the land back in the 60's, when groups like the Weathermen and Students for a Democratic Society (SDS) drew prison terms. The criminality of individual members of such groups--and there were many in those days of the draft and exile to Canada--was a matter of law. No matter that they blew things up.
Unremarkable too tame for you? How 'bout Oklahoma City's Federal Building? 168 dead and over 800 injured--until 9-11, it was the deadliest act of terrorism on U.S. soil. Timothy McVeigh and Terry Nichols were tried under the law.
It becomes all too embarrassingly evident to the world that the only difference between McViegh, Nichols and various Guantanamo residents is that everyone in Gitmo is Islamist. We are either a nation of law before the world or we are not. Take your pick, Geneva Convention or American law, but he choice does not include some hybrid CIA-Pentagon-Administration combination.
George Bush's 'you are with us or you are against us' applies to America as a nation of laws as equally as he would have it on matters of terrorism. It is not an accident that the world has peeled away from 'with us' like an onion. With us, wrong or right has cost a change of governments in Britain, France, Spain, Germany, Italy, Australia--all of them our closest allies.
How much evidence is required that America has lost--and continues to lose--the glow of freedom, the shine of equal rights under law, the radiance of our Constitution in the eyes of friendly nation after friendly nation across the planet?
How is it that we find ourselves like endangered polar bears, morally isolated on a smaller and smaller chunk of floating ice?
How is it we keep winning battles and losing wars?
It is because, I would suggest, that we fail to engage the enemy on any other basis than military. When it is in its right mind, this nation of ours has the philosophical ammunition, the ethical argument, the history (mostly) of freedom for all and the original support (eroding in recent decades) of democratic principle to engage economically, ethically and in reasoned argument. But any logical and fair-minded assessment would show that we are losing those positions on all fronts and losing them at a rate comparative to the melting of polar ice. Like global warming, the fear is that we have gone too far down this road of transgression--against ourselves as well as against others--to turn the corner and regain our previous status. We were the hope of the world, the shining city on a plain, the land where all men could find opportunity. We were respected because we respected others. What nation on the face of the earth, ever bankrolled the recovery of an enemy as America did with the Marshall Plan. None. Not one. Not ever. Where is this nation that 60 years ago picked up a wounded world and bandaged it? Where has it gone? Our power will always come from the Marshall side of our complex philosophy. That we have traded George Marshall for Donald Rumsfeld is a sad joke against our power, the power to heal, the power to make right what is wrong without the force of arms and without disdaining the rule of law.