At Gitmo, even acquittal may not set you free
Muriel Kane
Published: Wednesday February 20, 2008

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On February 11, the Pentagon announced it would be trying six Guantanamo detainees for war crimes and seeking the death penalty. However, according to Russ Tuttle of The Nation, "the trials are rigged from the start."

Tuttle interviewed Col. Morris Davis, the former chief prosecutor for the military commissions, who resigned last fall, calling the system "deeply politicized." Davis has suggested that the cases are being tried in 2008 purely because of the presidential election.

Davis told Tuttle that in 2005, Pentagon general counsel William Haynes said to him, "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."

The Nuremburg trials after World War II, which offer the main precedent for any Guantanamo proceedings, resulted in a number of acquittals, and this was important to the perception that justice had been done. Davis and others fear that with the possibility of acquittals ruled out, any Gitmo trials will be seen as a sham.

However, it seems likely that even if any of the defendants were acquitted for lack of evidence, they would not be released. At a March 21, 2002 Defense Department briefing describing the plans for military commissions, Haynes was asked, "Do these procedures guarantee that if a defendant is acquitted, that the defendant will be set free?"

Haynes responded, "If we had a trial right this minute, it is conceivable that somebody could be tried and acquitted of that charge, but may not necessarily automatically be released. The people that we are detaining, for example, in Guantanamo Bay, Cuba are enemy combatants that we captured on the battlefield seeking to harm U.S. soldiers or allies, and they're dangerous people. ... The people that we now hold in Guantanamo are held for a specific reason that is not tied specifically to any particular crime."

In response to a follow-up question, Haynes further explained, "The people we're holding in Guantanamo we're holding because we found them to be enemy combatants. ... We are within our rights, and I don't think anyone disputes it, that we may hold enemy combatants for the duration of the conflict. And the conflict is still going and we don't see an end in sight right now."

Haynes, who is a Bush administration appointee, stands in the unusual position of overseeing both the prosecution and the defense for the military commissions. It was when Haynes was placed above him in the chain of command that Davis resigned. Haynes has also been associated with the approval of torture and, according to writer Scott Horton, has tried to either politicize or sidestep the Judge Advocate General's corps, which is charged with implementing the military commissions.

Ross Tuttle and Scott Horton both appeared on Democracy Now! to further discuss the charges in Tuttle's article.

Tuttle explained that he had called Col. Davis for comment on a story about one particular detainee and simply asked him if he thought the detainees could get a fair trial. He wasn't surprised by Davis's answer, but when he realized that "this really seems to be the first time that somebody at such a high level has made such a statement," he concluded it was important to get it into print.

"Jim Haynes is not just anybody," Horton emphasized. "As the general counsel of the Department of Defense, he's the person who stands near the apex of this process. The prosecutors report to him. The defense counsels report to him. The judges report to him. ... And he already has an established back record of intervening in these cases for political purposes."

Scott Horton added that Davis is highly respected in the military and that his attitudes about military justice are normally extremely conservative, making his resignation and speaking out all the more extraordinary. The JAG corps itself is highly professional and wary of any politicization of its proceedings and has repeatedly come into conflict with Haynes, especially over the torture memos. The use of confessions obtained through torture will be of central concern when it comes to potential trials of detainees.

The Defense Department has disputed Davis's previous assertions.

Transcript of Democracy Now! interview can be read at this link