In the aftermath of BG Thomas Hartmann’s Congressional testimony in which he stated that information received from a detainee who had been waterboarded could be admissible, a NAVY JAG has resigned his commission in protest. It is unclear what–if any–effect LCDR Andrew Williams’s resignation will have on other JAG’s. It is also unclear what the circumstances of LCDR Williams’s resignation are.

However, in the context of the on-going debate regarding the limits of a lawful interrogation regime, LCDR Williams’s resignation should not be ignored. The question regarding the limits of interrogation of “9-11 detainees” clearly demands additional, serious debate in the public, Congress and White House.

View the story below online here.

Navy JAG Resigns Over Torture Issue

Knight Ridder | December 27, 2007

“It was with sadness that I signed my name this grey morning to a letter resigning my commission in the U.S. Navy,” wrote Gig Harbor, Wash., resident and attorney-at-law Andrew Williams in a letter to The Peninsula Gateway last week. “There was a time when I served with pride … Sadly, no more.”

Williams’ sadness stems from the recent CIA videotape scandal in which tapes showing secret interrogations of two Al Qaeda operatives were destroyed.

The tapes may have contained evidence that the U.S. government used a type of torture known as waterboarding to obtain information from suspected terrorists.

Torture, including water-boarding, is prohibited under the treaties of the Geneva Convention.

It was in the much-publicized interview two weeks ago between Sen. Lindsey Graham (R-South Carolina) and Brig. Gen. Thomas Hartmann, who is the chief legal adviser at the Pentagon’s Office of Military Commissions, that led Williams to resign.

In the interview, Graham asked Hartmann how the uniformed legal community should respond if the Iranian government used waterboarding to torture a U.S. solider into disclosing when the next U.S. military operation would occur.

Hartmann responded: “I am not prepared to answer that question.”

For Williams, a former naval Lieutenant Commander and member of the Judge Advocate General’s Corps (JAG), this answer went against “every training I had as an attorney” and as a member of the military.

Williams enlisted in the Navy in 1991 after completing law school at Santa Clara University. He was a legal officer and defense counsel in the U.S. Navy, meaning he both prosecuted and defended people in military courts.

He served on the USS Nimitz CVN-68, based in Bremerton, before becoming a member of the Naval reserves in 1995.

Williams, 43, felt that Hartmann was admitting torture is now an acceptable interrogation technique in the United States — an admission that did not sit well with him.

“There was this saying in the Marines: ‘We don’t lie, cheat or steal, or tolerate people who do,’ ” Williams said. “And that sort of echoed through the Navy.”

Williams felt that resigning from the reserves was not enough to demonstrate his dissatisfaction. He wrote to the Gateway hoping to set an example, echoing his same reason for joining the Navy two decades ago: “It was my way of serving the public,” he said.

In his letter, Williams likened the use of torture by the United States to techniques used by the Spanish Inquisition, Nazi Germany and the Khmer Rouge. He also wrote that he hopes “the truth about torture, illegal spying on Americans and secret renditions is coming out.”

Williams doubts that much will come of his letter of resignation and acknowledges that his life in Gig Harbor — which consists of practicing personal injury law and spending time with wife and young son — will not change much.

“I suspect (the Navy is) probably going to be fine with it,” he said. “I doubt they would keep me in voluntarily.”

He also states that, although reserve officers only perform military service once a year, he “probably would have stayed on if this hadn’t happened, both for sentimental value and if something big happened where I was needed.”

Outrage over CIA scandal

Below is an excerpt from the letter Andrew Williams submitted to The Peninsula Gateway. For the entire letter, see Letters to the Editor 16A.

“Thank you General Hartmann for finally admitting the United States is now part of a long tradition of torturers going back to the Inquisition. In the middle ages the Inquisition called waterboarding “toca” and used it with great success. In colonial times, it was used by the Dutch East India Company during the Amboyna Massacre of 1623.

“Waterboarding was used by the Nazi Gestapo and the feared Japanese Kempeitai. In World War II, our grandfathers had the wisdom to convict Japanese Officer Yukio Asano of waterboarding and other torture practices in 1947 giving him 15 years hard labor. Waterboarding was practiced by the Khmer Rouge at the infamous Tuol Sleng prison. Most recently, the United States Army court martialed a soldier for the practice in 1968 during the Vietnam conflict.”

Sound Off…What do you think? Join the discussion.

Copyright 2007 Knight Ridder . All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Cross-posted on the National Security Advisors

For more information on this and related news see The Volokh Conspiracy and see comments here.

Amos and I previously blogged about the debate between Col. Davis, the former Chief Prosecutor for the Office of Military Commissions and BG Hartmann the legal advisor to the Office of Military Commissions.  To access those posts click here and scroll down.

Col. Davis has now responded to BG Hartmann, here.  Funny quote from Col. Davis: “In a figurative sense, I suppose I’m not the first person associated with Guantanamo to be bound and gagged before having cold water poured on him, although in my case it is intended to induce me not to talk.”

It’s interesting to see this public debate unfold, although I would have preferred to see it in the form of Congressional testimony.

I’ve posted below the video of Dan Rather’s Interview with Colonel Davis, the Former Chief Prosecutor for the Office of Military Commissions. The interview begins at the 16:00 mark (which I tried to program as the start point for the the video, but if it doesn’t work you can scroll ahead).

UPDATE: At the 32:07 mark Dan Rather goes on to interview Georgetown Prof. Neal Katyal and Wiley Rein attorney Andrew McBride regarding habeas, Hamdan, unlawful combatants, etc.

In the op-ed below, Brig. Gen. Thomas Hartmann responds to Col Morris Davis’ op-ed (LA Times, Dec 10, 2007) regarding the reasons for his resignation.

In the op-ed, BG Hartmann does not address the essence of Davis’ argument: that he was forced to use illegally obtained evidence. To that end, in his Congressional testimony (Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security, Tuesday, December 11, 2007) BG Hartmann suggested that information received from a detainee subjected to water-boarding would be admissible evidence in a military commission trial.

Furthermore, Hartmann’s claim that “the process offers unprecedented rights to alleged war criminals” is troubling as, to the best of my knowledge, the US has not declared GITMO detainees to be “war criminals.”

In that context, it is important to note that according to various reports, Chairman of the Joint Chiefs of Staff, Navy Adm. Michael Mullen, will order use of the term “War on Terrorism” be discontinued.

BG Hartmann has on two occasions failed to address the most important issue raised by Morris-the use of illegally obtained evidence in the military commissions. That, it seems to me, must be the essence of the ongoing debate regarding future interrogations.

L.A. Times
Opinion- BLOWBACK

There will be no secret trials

A Defense Department legal advisor responds to his subordinate’s resignation.
By Thomas W. Hartmann
December 19, 2007

I have read with great disappointment the Op-Ed article by Morris D. Davis, former chief prosecutor for the Office of Military Commissions, particularly his comments with regard to Susan Crawford, the military commissions convening authority.

Since October, Davis has repeatedly complained about the very military commissions he oversaw for two years. He has criticized the commission process for moving too slowly, resulting in only one case being tried, by a guilty plea. After that plea was negotiated, with Davis’ written concurrence, he claimed publicly that he was not properly consulted.

Davis has recently protested that politics has been inserted into the process, which he in many ways controlled, alleging improper pressure from me, from the department’s general counsel, Jim Haynes, and now from Crawford. Specifically, Davis insinuates that she is politically motivated and that she lacks impartiality. He claims - though that he never breathed a word of this to me - that the pressure to move cases more rapidly was politically motivated.

But one should be careful when one challenges the reputation of others. Crawford has not directed or influenced the way any military commission case will be tried. Davis knows that I, without any political interference, directed him to evaluate more carefully the evidence, the cases, the charging process, the materiality of the cases, the speed of charging, the training program and the overall case preparation in the prosecution office. Interestingly, when I testified before Sen. Jeff Sessions (R-Ala.) that some cases are moved more quickly than others because they have the most material evidence, he commented: “Well, I think it’s almost prosecutorial incompetence not to think in those terms. It’s important that you do so.”

Davis further contends that he resigned within hours of learning that I would report to General Counsel Haynes, and as my subordinate, Davis would be under Haynes in the chain of authority. This was also just hours after he learned the results of an independent military panel - appointed by Haynes after consultation with the service Judge Advocates General - that concluded I had not improperly asserted my authority. That report was immediately made available to the public. It is worthy of note that Haynes had, months before, signed a performance evaluation on Davis, suggesting that Davis was already in the chain of command. Davis did not object then.

Davis also charges that the commissions are no longer “full, fair, and open trials.” This is particularly biting as he knows that the process offers unprecedented rights to alleged war criminals. Indeed, he wrote and spoke of that often. He also knows how much effort the prosecution and defense teams have dedicated to the fairness of the process - a process played out in United States vs. Hamdan.

Regarding his new allegations that the trials are not open, Davis knows that national security demands that certain evidence remain classified. He had an especially high security clearance for that very reason. But there will be no “secret” trials. Though we must safeguard classified information in order to protect ongoing operations and our soldiers, sailors, airmen and marines, not one piece of evidence will go to a commission jury without review and the opportunity to object by the accused and his counsel.

Military commissions are now moving forward fairly and transparently. As they continue, critics will see uniformed service members, including judges, prosecutors and defense counsel, conduct trials with the dignity, fairness, and respect for law that defines American military justice - a justice system that remains the envy of the world.

Air Force Brig. Gen. Thomas W. Hartmann is a legal advisor to the Department of Defense Office of Military Commissions.

Cross-posted on the National Security Advisors Blog

For more information, see the Volokh Conspiracy Blog, “Brig. Gen. Hartmann Responds to Col. Davis” view comments here.

The AALS Section on Human Rights will introduce the work of 34 scholars who will be presenting papers either for the first time at an AALS Conference, or for the first time in the area of human rights.  This is admittedly a bit of self-promotion as I will be presenting on Panel #3 on Sunday January 6, 2008 in the Clinton Suite of the Hilton.  My presentation is entitled “Toward a Predictive Theory of Executive Forum Discretion in Counterterrorism.”  In the coming days I’ll post a draft of the paper for comments, but in the meantime I wanted to ensure that the entire conference announcement was posted.

New Voices in International Human Rights

The Association of American Law Schools Section on Human Rights will introduce the work of 34 scholars who will be presenting papers either for the first time at an AALS Conference, or for the first time in the area of human rights.  Speakers were selected from a call for papers, and the panels include new law professors and promising future academic stars.  The first part of the program will be on Friday, January 4, 2008.  The second and third parts will be in two concurrent panels on Sunday, January 6, 2008, from 9:00 a.m. to noon.  The AALS Section on New Law Professors is an additional sponsor of the third part of this program.

We invite you to attend as many of these presentations as you can.  Obviously you cannot attend them all.  But your support of new scholars in the field of international human rights law will have a positive impact and help improve the quality of future scholarly writings to define, promote, and defend human rights.  When you are at the meeting in New York, you might also drop a note of support to colleagues and other persons whose presentations are of particular interest to you.

For those who are not rushing off to airports on Sunday afternoon, the American Society of International Law Interest Group in Teaching International Law is planning a luncheon for persons interested in the ASIL and in teaching international law.  Contact me at intlawprof@gmail.com to RSVP so that we are sure to have enough space.  We plan to meet either in the AALS hotel or at a nearby restaurant at 1:00 p.m. on Sunday, January 6, 2008.  Thank you all, and see you soon in New York.

Mark E. Wojcik
The John Marshall Law School-Chicago
Chair, AALS Section on International Human Rights Law
Co-Chair, ASIL Interest Group in Teaching International Law

New Voices in Human Rights: Part 1
Friday, January 4, 2008
10:30 a.m. to 12:15 p.m.
Hilton New York
Clinton Suite, Second Floor

Moderator:  Mark E. Wojcik, The John Marshall Law School-Chicago

Speakers:    Jenia Ionthcheva Turner, SMU Dedman School of Law (”Defense Perspectives on Law and Politics in International Criminal Trials”)

Lesley Wexler, Florida State University College of Law (”Human Rights Impact Statements”)

Jennifer Anglim Kreder, Northern Kentucky University Chase College of Law (”A Nazi-Looted Art Tribunal”)

Leonard Cavise, DePaul University College of Law (”Taking U.S. Law Students to Chiapas, Mexico:  International Human Rights, Poverty Reduction, and Inspiring Students to Pursue Careers in International Human Rights”)

Michele Pistone, Villanova University School of Law (”The International Community’s Response to the Crisis Facing Iraqi Refugees”)

Saira Mohamed, Attorney-Advisor for Human Rights and Refugees, Office of the Legal Advisor, U.S. Department of State (”The Compatibility of State Responsibility for Genocide with the Methods and Goals of Transitional Justice”)

Theodore A. Myhre, University of Washington School of Law (”Advancing Same-Sex Civil Rights through Equity: The Meretricious Relationship Doctrine as an Alternative to Arguments Relying on Theories of Equal Rights and Liberty Interests”)

Darren Rosenblum, Pace Law School (”The Case for Abolishing CEDAW”)

Christiana Ochoa, Indiana University School of Law-Bloomington (”From Odious Debt to Odious Finance: Avoiding the Externalities of a Functional Odious Debt Doctrine”)

Commentator:  Robert C. Blitt, University of Tennessee College of Law

New Voices in Human Rights: Part 2
Sunday, January 6, 2008
9:00 a.m. to 12:00 noon
Hilton New York - Nassau A Room - Second Floor

Moderators:  Robert C. Blitt, University of Tennessee College of Law

Arthur Acevedo, The John Marshall Law School-Chicago

Anthony S. Winer, William Mitchell College of Law

Speakers:    Susan Teifenbrun, Thomas Jefferson School of Law (”Child Soldiers, Slavery, and the Trafficking of Children”)

Susan H. Bitensky, Michigan State University College of Law (”Corporal Punishment of Children”)

Karen E. Bravo, Indiana University School of Law - Indianapolis (”Toward a Labor Liberalization Solution to the Modern Traffic in Humans”)

Cheryl George, St. Mary’s University of San Antonio (”Global Sex Trafficking”)

John Mikhail, Georgetown University Law Center (”Cognitive Science and the Foundations of Human Rights”)

Peter G. Danchin, University of Maryland School of Law (”The Relationship of Religion and Human Rights in International Law Theory”)

Amy J. Cohen, The Ohio State University Moritz College of Law (”Making Selves: Human Rights and Rule of Law Cultures”)

Sharon E. Foster, University of Arkansas School of Law-Fayetteville (”Ignorance and Want: A Human Rights Conflict Analysis Regarding Competing Interests in Health Care, Food, and Education”)

Benjamin G. Davis, University of Toledo College of Law (”Criminal Prosecution in U.S. Courts of High-Level U.S. Civilian Authority and Military Generals for Torture and Cruel, Inhuman, or Degrading Treatment”)

Hannah Ruth Garry, University of Colorado Law School (”Reconciling Restorative and Retributive Justice Norms in International Criminal Law: Victims and the Right to Participate in International Proceedings”)

Arturo J. Carrillo (with Jason Palmer), George Washington University Law School (”Mass Claim Type Procedures (MCTPs) in International Law and Practice”)

James P. Eyster, Ave Maria School of Law (”Judging the Truth: A Comparison of Credibility Determinations for Asylum Claims in the United Kingdom, the United States, Canada, and the European Union”)

Matthew J. Lister, Law Clerk, U.S. Court of International Trade (”Who is a Refugee?”)

Program Chair:  Mark E. Wojcik, The John Marshall Law School-Chicago

New Voices in Human Rights: Part 3
Sunday, January 6, 2008
9:00 a.m. to 12:00 noon
Hilton New York - Clinton Suite - Second Floor

This panel is co-sponsored by the AALS Sections on International Human Rights and
the AALS Section on New Law Professors

Moderators:  Elizabeth A. Pendo, St. Thomas University School of Law and St. Louis University School of Law

Sergio Pareja, University of New Mexico School of Law

Joseph F. Morrissey, Stetson University College of Law

Mark E. Wojcik, The John Marshall Law School-Chicago

Speakers:    Milena Sterio, Cleveland-Marshall College of Law (”Globalization, Human Rights, and the Erosion of State Sovereignty”)

Robert D. Sloane, Boston University School of Law (”The Cost of Conflation: On the Dualism of Jus Ad Bellum and Jus in Bello“)

Carlos Iván Gorrin-Peralta, Inter-American University of Puerto Rico School of Law (”Colonial Constitutionalism Versus Self-Determination: Washington, You Have a Problem!”)

Barnali Choudhoury, Charleston School of Law (”The Façade of Neutrality: Implications of International Trade Politics on Women’s Rights”)

Gregory S. McNeal, Pennsylvania State University, The Dickinson School of Law (”Toward a Predictive Theory of Executive Forum Discretion in Counterterrorism”)

Jane E. Cross, Shepard Broad Law Center Nova Southeastern University (”The Mandatory Death Penalty in the Commonwealth Caribbean: A Chronicle of Death Foretold?”)

Jeffrey D. Kahn, SMU Dedman School of Law (”Thoughts Toward Protection of a Right to International Travel”)

Timothy K. Kuhner, Duke University School of Law and Roger Williams University School of Law (”The Democracy to Which We Are Entitled: Human Rights and the Problem of Money in Politics”)

Cleveland Ferguson III, Florida Coastal School of Law (”U.N. Millennium Development Goals and State Capacity: Shifting the Focus of Donor Programs to the Public Interest”)

Joseph M. Isanga, Ave Maria School of Law “United Nations Resolutions Relative to Efforts Aimed at Combating International Terrorism: An Emerging Norm of Customary International Law and Jus Cogens”

Brian J. Foley, Drexel University College of Law (”This is an Emergency: Re-seeing the Jus ad Bellum through a Human Rights Lens”)

Program Chair:  Mark E. Wojcik, The John Marshall Law School-Chicago

On Tuesday, December 18, at 8:00 PM, ET, on DAN RATHER REPORTS, “Pressuring the Prosecutor” Airing on HDNet, Dan Rather will interview former Guantanimo Chief Prosecutor Colonel Morris Davis who resigned in October of 2007.

I previously blogged about the Senate Judicary Committee’s Subcommittee on Terrorism, Technology and Homeland Security hearing regarding Guantanamo.

In that post I mentioned that it would be wise for the committee to invite Colonel Morris Davis who recently resigned from his position as Chief Prosecutor. In resigning, Colonel Davis, according to this LA Times Report, “cited what he considered inappropriate political pressures on the legal process in his decision to seek reassignment.” In a subsequent LA Times Editorial Colonel Davis cited as reasons for his resignation his firm and public determination to not offer evidence derived from methods which might amount to torture, including specifically waterboarding.

Volokh later picked up on the story here, confirming what I had blogged about, that the Pentagon had ordered Colonel Davis to not testify. Volokh linked to this TPM Muckraker story with video discussing that Colonel Davis was in fact invited. In his place, the Pentagon sent Brigadier General Hartman. Importantly, disagreements between BG Hartmann and Colonel Davis were part of what led Colonel Davis to resign. More on those issues here.

Well, the Pentagon sure did themselves a disservice by having BG Hartmann testify. What would Colonel Davis have testified to? Amos Guoira has posted a transcript and video of an NBC Nightly News interview with Colonel Davis here, which gives us an idea of what Colonel Davis would have said.

BG Hartmann, on the other hand testified that he was “not equipped” to answer whether it would be a violation of the Geneva Conventions for Iranian forces to waterboard a uniformed airman. Now this is not a question about whether waterboarding is torture, it is a straightforward IHL question about whether waterboarding a uniformed airman violates the Geneva Conventions. Senator Graham was understandably disgusted by BG Hartmann’s answer.

Balkinzation has some on the issue here, as does Think Progress.

The Pentagon blocked Colonel Morris Davis (United States Air Force, Former Chief Prosecutor) from testifying before the Senate Judiciary Committee but he was interviewed last night on NBC Nightly News. Read the report below, or view it on MSNBC video here.

December 11, 2007: NBC Nightly News

Brian Williams (Anchor)–The fierce debate over the use of torture was set to go another round in Washington today with an appearance before Congress of a key Pentagon whistle-blower, that is until the Pentagon blocked him from testifying, not before he did talk, however, to our own Andrea Mitchell.

Andrea Mitchell (reporter) –What really goes on behind the gates at Guantanamo? The Pentagon blocked its top military prosecutor from testifying, but he talked exclusively to NBC News.

Colonel Morris Davis –My objective is to tell the truth, and that seemed to be quite a few people that are opposed to me doing that.

Andrea Mitchell–Colonel Morris Davis, a 24-year veteran, quit in October after refusing to use evidence obtained from waterboarding.

Col. Morris Davis–In my opinion, if you tie someone down and induce them to believe they’re going to die if they don’t talk, whatever they tell you is not reliable and not suitable in an American court of justice.

Andrea Mitchll–So instead of the whistle-blower, the Pentagon sent a general who wouldn’t discuss interrogation techniques.

(Video of Senator Dianne Feinstein before the Senate Judiciary Committee)–I have to conclude that by prohibiting Colonel Davis from testifying, the administration is trying to stop a fair and open discussion about the legal rights of detainees at Guantanamo.

Cross posted on the National Security Advisors Blog.

For more on this issue see the The Volokh Conspiracy Blog–“Pentagon Ordering Former Chief Prosecutor at Guantanamo Not To Appear Before the Senate Judiciary Committee?,” view comments to this post here.

Col Davis is a man of enormous personal and professional integrity. The op-ed below reflects previous statements he has made regarding the use of evidence obtained through unlawful means. In honoring his public pledge (“if forced to use such information I shall resign”) Col Davis has shown himself to be the model of integrity and decency.

Col Davis’ recommendations regarding the future of the Military Commission process must be taken seriously and deserve an active and engaged public debate in Congress, the White House, political campaigns and academia. Col Davis makes very clear how flawed the system is and clearly suggests measures must be taken immediately to address those issues.

Whether GITMO must be closed as has been suggested, or whether the process must be only “tweaked” or if what is required is developing an alternative (to that end, please see two articles I have written on the question of where to try individuals suspected of involvement in terrorism: Quirin to Hamdan: Creating a Hybrid Paradigm for Detaining Terrorists,” Florida Journal of International Law, 19 Fla. J. Int’l L. 2 (forthcoming 2007 and Where are Terrorists to be Tried – A Comparative Analysis of Rights Granted to Suspected Terrorists,” Catholic University Law Review,. Vol. 56, No. 2, Spring 2007) we do not have the luxury of postponing the debate.

To that end, Col Davis has done us all a service of enormous importance. For that, he must have our gratitude.AWOL military justice
Los Angeles Times

AWOL Military Justice

Why the former chief prosecutor for the Office of Military Commissions resigned his post.

By Morris D. Davis
December 10, 2007

I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.

In my view — and I think most lawyers would agree — 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 title with no counterpart in civilian courts — was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective — not predisposed for the prosecution or defense — and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg’s staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something — use specific evidence to bring specific charges against a specific person at a specific time, for instance — and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

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.

The Military Commissions Act provides a foundation for fair trials, but some changes are clearly necessary. I was confident in full, fair and open trials when Gen. Altenburg was the convening authority and Brig. Gen. Tom Hemingway was his legal advisor. Collectively, they spent nearly 65 years in active duty, and they were committed to ensuring the integrity of military law. They acted on principle rather than politics.

The first step, if these truly are military commissions and not merely a political smoke screen, is to take control out of the hands of political appointees like Haynes and Crawford and give it back to the military.

The president first authorized military commissions in November 2001, more than six years ago, and the lack of progress is obvious. Only one war-crime case has been completed. It is time for the political appointees who created this quagmire to let go.

Sens. John McCain and Lindsey Graham have said that how we treat the enemy says more about us than it does about him. If we want these military commissions to say anything good about us, it’s time to take the politics out of military commissions, give the military control over the process and make the proceedings open and transparent.

Morris D. Davis is the former chief prosecutor for the Office of Military Commissions. The opinions expressed are his own and do not represent the views of the Department of Defense or the Department of the Air Force.

Available at:

http://www.latimes.com/news/printedition/opinion/la-oe-davis10dec10,0,567108.story?coll=la-news-comment

Cross posted on the National Security Advisors Blog.

Cross posted on The Volokh Conspiracy Blog with a link to comments here.

The Senate Judicary Committee’s Subcommittee on Terrorism, Technology and Homeland Security has scheduled a hearing regarding Guantanamo.

The witness list has not yet been posted, but the committee would be smart to invite Colonel Morris Davis who recently resigned from his position as Chief Prosecutor. Colonel Davis, according to this LA Times Report, “cited what he considered inappropriate political pressures on the legal process in his decision to seek reassignment.” During his time as Chief Prosecutor Colonel Davis was one of the best advocates on behalf of the commissions, frequently making himself available to the press, and even writing a piece for the Yale Law Journal’s Pocket Part entitled “In Defense of Guantanamo Bay.”

UPDATE: I just found out that Senator Feinstein’s office did invite Colonel Davis to testify. However, the Office of the Secretary of Defense contacted Senator Feinstein’s office and informed them that Colonel Davis was prohibited from testifying and Brigadier General Hartmann would instead testify in his place. Disagreements between BG Hartmann and Colonel Davis were part of what led Colonel Davis to resign. More on those issues here.

I’ve previously blogged about “Politics and the Military Commissions” here . There I suggested that Congress should become far more involved in the process. Denmark’s recent refusal to accept any Guantanamo inmates highlights this need for Congressional involvement. President Bush will go away in 2009, but the problems associated with Guantanamo Bay will not. As the Denmark example bears out, “try them or release them” doesn’t work in all circumstances. Quite simply some individuals may be considered too dangerous to be released (or accepted by a foreign government) but not enough usable evidence exists to try them. (e.g. it’s based on hearsay, intelligence, or was inappropriately collected). It’s nice to think that if we just get to 2009 all of the problems associated with Guantanamo will go away, but the reality is that the next President will inherit this situation, and a longer term solution is necessary. Ken Anderson argues here that Congress must institutionalize counterterrorism, these hearings are a good first step.