Now, as the murky, quasi-legal staging of the Bush Administration's military commissions unfolds, a key official has told The Nation that the trials are rigged from the start. According to Col. Morris Davis, former chief prosecutor for Guant´namo's military commissions, the process has been manipulated by Administration appointees in an attempt to foreclose the possibility of acquittal.
Then, in an interview with The Nation in February after the six Guantánamo detainees were charged, Davis offered the most damning evidence of the military commissions' bias--a revelation that speaks to fundamental flaws in the Bush Administration's conduct of statecraft: its contempt for the rule of law and its pursuit of political objectives above all else.
When asked if he thought the men at Guantánamo 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.'"
"If we determine they're not terrorists," it seems the reasoning goes, "that will undermine everything we've done up 'til now and prove us wrong about declaring them terrorists. Since we can't allow people to think that we were wrong, we must find that they're terrorists--no matter what!" In fact, Scott Horton, a professor at Columbia University Law School, had much the same reaction:
"If someone was acquitted, then it would suggest we did the wrong thing in the first place. That can't happen," says Horton sardonically. "When the government decides to clear someone, it calls the person 'no-longer an enemy combatant' instead of just saying they made a mistake."
Now, if this guy were just a prosecutor, I think I could find that statement forgivable. Prosecutors are supposed to try and press their case as much as possible. But this man is also in charge of the defense:
Currently, in his capacity as Pentagon general counsel, Haynes oversees both the prosecution and the defense for the commissions. "You would think a person in that position wouldn't be favoring one side," says Colonel Davis.
And there's been other evidence that this is just a kangaroo court, too:
[Clive Stafford Smith, a defense attorney who has represented more than seventy Guantánamo clients] adds, "It confirms what people close to the system have always said," noting that when three prosecutors--Maj. Robert Preston, Capt. John Carr and Capt. Carrie Wolf--requested to be transferred out of the Office of Military Commissions in 2004, they claimed they'd been told the process was rigged. In an e-mail to his supervisors, Preston had said that there was thin evidence against the accused. "But they were told by the chief prosecutor at the time that they didn't need evidence to get convictions," says Stafford Smith.
All in all, it's been a sad seven years for the rule of law.