JURIST Guest Columnist Marc Falkoff of Northern Illinois University College of Law says the recent resignation of Guantanamo chief military prosecutor Col. Morris Davis and his remarkable public conversion from champion of the military commissions to one of their most devastating critics may finally signal to the American public that politics rather than principle reigns at the prison...
Just sixteen months ago, the Supreme Court declared in Hamdan v. Rumsfeld that the military commissions, as initially created by President Bush, violated Common Article 3 of the Geneva Conventions because they were not "regularly constituted courts." In response, the Administration chose not to try terrorism suspects either before a court martial or in the civilian justice system, where Omar Abdel Rahman and other accused terrorists have been successfully prosecuted. Instead, the Administration pushed the Military Commissions Act through a Republican-led Congress, breathing new life into a jerry-built military commissions system.
The results have been predictable. Although Guantanamo has been operating as a detention center for nearly six years, to date not a single trial has taken place for any of the 750-odd men who have been imprisoned there. Only three prisoners have been charged with crimes and one of them, Australian David Hicks, pleaded guilty almost immediately in exchange for the promise of only eight-months' further imprisonment, to be served in his home country. The remaining trials ground to a halt soon after, while military judges dithered over whether the commissions' jurisdiction extended to all "enemy combatants" or only to "unlawful enemy combatants." Although that issue has since been resolved, it presaged the host of legal squabbles that will inevitably arise as the military works out the kinks of its brand new justice system.
We already know, therefore, that the military commissions are a bad idea for those of us who want to see speedy justice at Guantanamo. But with the resignation of Colonel Davis as chief prosecutor, we are now learning that the military commissions whatever their inherent flaws and virtues have themselves been corrupted by politics. If Davis's allegations are to be credited, then the commissions system is being manipulated by political actors in an improper, unethical and potentially illegal manner a politicization of the Guantanamo justice system that echoes the U.S. Attorneys scandal.
According to Davis, for more than a year Pentagon officials have sought to influence his decisions about "who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution." For example, speaking last week to the Wall Street Journal, he explained that in September 2006, Deputy Defense Secretary Gordon England discussed with him the "strategic political value" in charging some of the prisoners before the midterm elections. Similarly, in January 2007, Pentagon General Counsel William J. Haynes II (himself on the verge of being withdrawn as a nominee for the Fourth Circuit U.S. Court of Appeals because of his involvement with the infamous "torture memos") telephoned Davis to prod him to charge David Hicks, apparently as a political accommodation to the Australian Prime Minister. Even after Haynes was advised that this interference was improper, he again called Davis, suggesting that he charge other prisoners at the same time to avoid the impression that the charges were "a political solution to the Hicks case."
More recently, Davis filed a formal complaint alleging that Brigadier General Thomas Hartmann, the Legal Advisor to the authority overseeing the military commissions process, had pushed him to file cases that would attract more public attention and garner support for the tribunal system, even though such cases would require secretive, closed proceedings. (By Pentagon regulation, the Legal Advisor is supposed to be an impartial administrator of justice, not an arm of the prosecution.)
In September of this year, Davis threatened to resign if anyone tried to intimidate him. He has now done so, stating bluntly that, "as things stand right now, I think it's a disgrace to call it a military commission it's a political commission."
What makes this all the more alarming is that Colonel Davis is the last person you would expect to stand up as a whistleblower. To be sure, other officers have gone public about abuses in the Guantanamo system. Lieutenant Colonel V. Stuart Crouch, for instance, explained publicly that he had resigned as a prosecutor in May 2004 because Mohamedou Ould Slahi, the man he was supposed to put on trial, had indisputably been tortured. More recently, Lieutenant Colonel Stephen Abraham drafted a declaration, filed with the Supreme Court, in which he detailed the ways in which the "Combatant Status Review Tribunals" on which he sat were rigged against the prisoners. And just this week, National Public Radio reported that Lieutenant Colonel Colby Vokey, the Marine Corps' chief of all defense lawyers for the western U.S., was resigning because military staff had harassed him and interfered with his defense work for a juvenile prisoner at the camp. Vokey called the legal system at Guantanamo "disgraceful" and a "sham," warning that "anytime you want to subvert the rule of law to the power of a government, you've got a very bad thing brewing." But none of these men had, like Colonel Davis, previously spoken out in support of all things Guantanamo.
For years, Davis has been the Administration's de facto spokesperson in defense of the military commissions. He has penned encomiums to Guantanamo in publications from the New York Times to the Yale Law Journal, where he decried "those who want to sell a false and ugly picture of the facilities and the process." Last year, Davis was particularly vociferous in attacking Major Michael Mori, David Hicks's defense counsel, for speaking in public about the failures of the Guantanamo legal system, even suggesting that Mori could be charged under Article 88 of the Uniform Code of Military Justice for speaking contemptuously about top U.S. officials.
And now we have the spectacle of Davis resigning and speaking out about the in-timidation and political interference he encountered as Guantanamo's chief prosecutor. Although the Administration has, predictably, launched attacks on his character, Davis's resignation seems the only honorable course this defender of the military commissions could take, since the interference he experienced appears to be a patent violation of Rule 104 of the Manual for Military Commissions and § 949b of the Military Commissions Act, both of which make it unlawful to "attempt to coerce or, by any unauthorized means, influence the exercise of professional judgment by trial counsel or defense counsel." And these violations are not, of course, trivial matters. Justice Kennedy, in his concurrence in Hamdan, specifically disapproved of the first military commissions exactly be-cause they lacked "the safeguards that are important to the fairness of the proceedings and the independence of the court."
In the end, though, the real importance of the chief prosecutor's resignation does not lie in his revelation that the military commissions have been compromised. After all, the very highest estimates from the Pentagon are that only eighty of the 350 men left at Guantanamo will be charged with a crime triable before a military commission. The remaining prisoners are threatened with a legal limbo, subject to indefinite detention without charge or trial or any court oversight for the duration of the war on terror. For these men, the proper functioning of the military commissions is utterly beside the point.
For the majority of the prisoners at Guantanamo, the value of Davis's resignation is that it may finally signal to the American public that politics rather than principle reigns at Guantanamo, and that decisions about the administration of justice at the camp are being made largely outside of public view and without accountability by political actors for nakedly political reasons. How else, for example, are we to explain the fact that every European who was dragged to Guantanamo has been returned to his home country, but that nearly ninety percent of the Yemenis who have been detained at the naval base remain there today even though a number of them have actually been cleared for release by the military?
For more than three years, my colleagues and I have visited with our clients at Guantanamo dozens of times, frequently bringing them "good news" about court victories we have won. To a man, upon hearing our news, our clients have smiled politely and shrugged, pointing out to us that they still have not had their day in court and that they still are not treated in accord with the Geneva Conventions. "You have to understand," they tell us, "this is all a big game." More and more, I am starting to think they are right.
Marc Falkoff teaches criminal law and criminal procedure at Northern Illinois University College of Law. Prior to joining the NIU faculty, he was an associate at Covington & Burling, where he was the principal lawyer in the habeas representation of seventeen Yemeni men detained by the U.S. military at Guantanamo Bay. He is the editor of Poems From Guantanamo: The Detainees Speak (University of Iowa Press, 2007).