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Gitmo ex-prosecutor: 'Full, fair, open' trials not possible
Mike Sheehan
Published: Monday December 10, 2007

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The chief prosecutor for Guantanamo Bay's military commissions has revealed that he relinquished his position after concluding that "full, fair and open trials" for the accused were impossible.

"I resigned," writes Morris D. Davis in the Los Angeles Times, "because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly."

Davis, an Air Force officer and lawyer, says "it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality.

"Yet the political appointee known as the 'convening authority,'" a position he noted that had no civilian counterpart, "was not living up to that obligation."

In early 2007, Secretary of Defense Robert Gates replaced Maj. Gen. John Altenburg as the convening authority with civilian lawyer Susan Crawford. "Altenburg's staff had kept its distance from the prosecution to preserve its impartiality," writes Davis. "Crawford, on the other hand, had her staff assessing evidence before the filing of charges" by drafting charges against the accused and assigning prosecutors, among other things.

"How can you direct someone to do something and later make an impartial assessment of whether they behaved properly?" Davis says. "Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused."

Davis cited other reasons for his resignation, effective October 4, most notably that he instructed prosecutors to "not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned" but felt his instructions had been superceded by a senior commanding officer.

Excerpts from the column, available in full here, follow...

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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.

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