February 22, 2008

Disastrous Delusion

In my recent post on the announcement that the Bush Administration is seeking the death penalty for six Guantanamo prisoners (The Case Is Already Lost), I wrote the following:
To be sure, this trainwreck was inevitable from the moment the Administration painted the United States into a human rights corner by constructing an offshore prison camp for the sole purpose of keeping the people held there in legal limbo. At this point, there are no good options, and we should be perfectly clear about what is going to happen: there is no outcome under which any of the six men tried will be released. None. It will not happen, because even if - by some extraordinary circumstance - they are not convicted, the United States cannot set them free. They will either be held pending further "investigation" and charges, denied release because no other country of which we approve will take them in, or die mysteriously either in custody or "escaping." This is the very definition of a show trial.
I made that statement based on a logical evaluation of the facts and the observation of past Bush Administration behavior. As it turns out, however, Colonel Morris Davis, the former chief prosecutor for the Office of Military Commissions, has made the same assessment, but whatever small measure of satisfaction I might have taken in having my beliefs endorsed is swamped by the complete and utter revulsion I feel toward the circumstances that provide this validation. Specifically, Colonel Davis resigned his post when it became clear to him that the trials at Guantanamo Bay would not be permitted to produced acquittals, no matter the evidence or lack thereof.

In a December 10th Los Angeles Times editorial, the colonel explains his resignation:
Earlier this year, Susan Crawford was appointed by the Secretary of Defense to replace Major General 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.

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.

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor's office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes' place in my chain of command.
Colonel Davis concludes his piece by stating that he believes that the military commissions system can serve as the basis for fair and impartial proceedings, but that significant changes must be made before that can occur. All in all, his article is a reasonable explanation and a forthright declaration of professional differences, but in the intervening weeks, Colonel Davis has revealed that he was pressured by "politically motivated officials at the Pentagon" to pursue the prosecution of "sexy" cases in the run-up to the 2008 elections, noting:
There was a big concern that the election of 2008 is coming up. People wanted to get the cases going. There was a rush to get high-interest cases into court at the expense of openness.
While clearly disenchanted and concerned about the prioritization of political interests over judicial, Colonel Morris did not talk specifically about his concerns with regard to Mr. Haynes until the Gitmo death penalty cases were announced. As The Nation (by way of AlterNet) reported yesterday however, now that lives are on the line, the one-time chief prosecutor's words have been damning, to say the least:

When asked if he thought the men at Guantanamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes - the man who now oversees the tribunal process for the Defense Department. "[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals, we've got to have convictions.'"

While there is no question whatsoever that the conspirators who unleashed the attacks of September 11th should be brought to justice, it is equally clear that any system in which there is no opportunity for acquittal fails to provide a mechanism to achieve that aim. Instead of legitimate trials, we are instead left with a sham predicated on the belief that we should be grateful to have men and women in positions of power who can apparently determine guilt or innocence without the need for a messy, impartial judicial proceeding.

Those who back this mockery of not only fundamental human rights but the long-declared character of the United States as a nation that seeks both truth and justice to the best of its ability, appear wholly oblivious to the consequences of their actions. The stupefying - but inescapable - conclusion is that they expect the gratitude and admiration of the world upon completing this tragic farce. For anyone who did not let cowardice and authoritarianism betray the reputation and standing of America and its people in the wake of 9/11, it is left to wonder how we will ever recover from the results of such deeply-rooted delusion.

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