Last week, Air Force Colonel Morris Davis, the chief prosecutor at Guantanamo Bay, asked to be reassigned. His departure follows that of the chief defense counsel, Marine Corps Colonel Dwight Sullivan, who left late this summer.
Two high-level departures in a short period of time are not in themselves unusual -- a constant aspect of military life is the rotation of personnel into and out of key assignments -- but there's something out of the ordinary going on here. According to the Los Angeles Times, Davis has been given a gag order:
Asked why he was leaving his position, Davis said in an e-mail message that he was "ordered not to communicate with the news media about my resignation or military commissions without the prior approval of the Department of Defense General Counsel and the Department of Defense Public Affairs."
What's going on at Gitmo?
Davis is not the first chief prosecutor to depart his post. Army Colonel Fredric L. Borch resigned in 2004 following allegations by two military officers disclosed in leaked e-mails, charging that the system had been rigged to produce a series of show trials. Air Force Captain John Carr told Borch
When I volunteered to assist with this process and was assigned to this office, I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused ...
Instead, I find a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged.
You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and that we only needed to worry about building a record for the review panel.
Along with Carr, Air Force Captain Carrie Wolf and Army Major Robert Preston asked to be reassigned, with Preston calling the Gitmo trials "half-arsed" and "a fraud on the American people."
Following Borch's departure and the reassignment of Major Preston and Captains Carr and Wolf, dissension continued among the Gitmo prosecutors. Marine Lieutenant Colonel V. Stuart Couch, a former aviator, refused to prosecute a detainee because the evidence against that individual was obtained by torture:
The prisoner in question, Mohamedou Ould Slahi, had already been suspected of terrorist activity. After the attacks, he was fingered by a senior al Qaeda operative for helping assemble the so-called Hamburg cell, which included the hijacker who piloted United 175 into the South Tower ...
The account of Mr. Slahi's treatment has been pieced together from interviews with government officials, official reports and testimony, as well as Mr. Slahi's attorneys and Col. Couch. Col. Couch wouldn't discuss classified information, including aspects of the Slahi interrogation involving the CIA.
Initially, Mr. Slahi denied having al Qaeda connections, frustrating his interrogators. On May 22, 2003, a Federal Bureau of Investigation interrogator said, "this was our last session; he told me that I was not going to enjoy the time to come."
In the following weeks, Mr. Slahi said, he was placed in isolation, subjected to extreme temperatures, beaten and sexually humiliated. The detention-board transcript states that at this point, "the recording equipment began to malfunction." It summarizes Mr. Slahi's missing testimony as discussing "how he was tortured while here at GTMO by several individuals."
Mr. Slahi was put under more intense interrogation. On July 17, 2003, a masked interrogator told Mr. Slahi he had dreamed of watching detainees dig a grave, according to a 2005 Pentagon report into detainee abuse at Guantanamo, headed by Air Force Lt. Gen. Randall Schmidt and Army Brig. Gen. John Furlow. (Gen. Furlow later testified that Mr. Slahi was "the highest value detainee" at Guantanamo, "the key orchestrator of the al Qaeda cell in Europe.")
The interrogator said he saw "a plain, pine casket with [Mr. Slahi's] identification number painted in orange lowered into the ground." Three days later, the interrogator told Mr. Slahi "that his family was 'incarcerated,'" the report said.
On Aug. 2, an interrogation chief visited the prisoner posing as a White House representative named "Navy Capt. Collins," the report said. He gave the prisoner a forged memorandum indicating that Mr. Slahi's mother was being shipped to Guantanamo, and that officials had concerns about her safety as the only woman amid hundreds of male prisoners, according a person familiar with the matter.
Couch, who lost a friend the morning of 9/11 aboard Flight 175, refused to bring such tained evidence to court: "Here was somebody I felt was connected to 9/11, but in our zeal to get information, we had compromised our ability to prosecute him." The threats to Slahi's mother made up Couch's mind: "For me, that was just, enough is enough. I had seen enough, I had heard enough, I had read enough. I said: 'That's it.'"
But the effort to stack the deck at Gitmo apparently is continuing unabated. Colonel Davis' resignation is yet another sign of renewed tension over this process. Both the article in the LA Times and this piece in the New York Times indicate that a reservist appointed this summer as the top military advisor to the military commissions, took control over the prosecutions away from career active duty officer Davis. The reservist is Air Force Brigadier General Thomas Hartmann, who in his civilian life is general counsel for MXenergy, a company that "supplies natural gas and electricity to residential and commercial customers in deregulated energy markets."
Hartmann's assertion of authority over Davis came while Davis was on convalescent leave recovering from surgery. It creates a conflict of interest because, as the chief legal advisor to the commission, is supposed to play a neutral role in the trials. Following a conviction, Hartmann will advise the convening authority about the legality of the prosecutors' decisions -- decisions which Hartmann himself is now making for them.
Among those decisions: Hartmann apparently insisted that Davis abandon the methodical plan of building solid cases against the lower-level detainees first. Although prosecutors often favor this approach in conspiracy cases, using each successive prosecution to build the case against the "big fish," Hartmann wants the high-profile trials first:
Hartmann has urged the prosecution to move forward with trials of the "high-value" detainees rather than try smaller fish in the pool for whom prosecutors have more convincing evidence and better-prepared cases. The prosecution was prodded to proceed on those cases before all the commissions' procedural codes were adopted and legal challenges had been worked out.
The 16 "high-value" suspects, including accused 9/11 mastermind Khalid Shaikh Mohammed, were transferred there from secret CIA prisons a year ago.
It's not especially surprising that a lawyer from the oil and gas industry would be appointed to push for show trials, "half-arsed" or not, that could be held in 2008: if you think the Republican Party will let anything connected with 9/11 proceed without a deliberate effort to turn it to the party's advantage, you haven't been paying attention during the past six years.
Count on the first show trial to be begun just before the GOP convention begins next year, with the conviction and death sentence handed down in October.