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Tuesday, April 29, 2008

"We Can't have Acquittals"

by digby

Another day, another example of the Bush administration illegality. Not that anyone's paying attention, what with the pressing need to obsess over the utterances of an obscure Chicago pastor:

The Defense Department's former chief prosecutor for terrorism cases appeared Monday at the controversial U.S. detention facility here to argue on behalf of a terrorism suspect that the military justice system has been corrupted by politics and inappropriate influence from senior Pentagon officials.

Sitting just feet from the courtroom table where he had once planned to make cases against military detainees, Air Force Col. Morris Davis instead took the witness stand to declare under oath that he felt undue pressure to hurry cases along so that the Bush administration could claim before political elections that the system was working.


Davis told Navy Capt. Keith J. Allred, who presided over the hearing, that top Pentagon officials, including Deputy Defense Secretary Gordon R. England, made it clear to him that charging some of the highest-profile detainees before elections this year could have "strategic political value."

Davis said he wants to wait until the cases -- and the military commissions system -- have a more solid legal footing. He also said that Defense Department general counsel William J. Haynes II, who announced his retirement in February, once bristled at the suggestion that some defendants could be acquitted, an outcome that Davis said would give the process added legitimacy.

"He said, 'We can't have acquittals,' " Davis said under questioning from Navy Lt. Cmdr. Brian Mizer, the military counsel who represents Hamdan. " 'We've been holding these guys for years. How can we explain acquittals? We have to have convictions.' "

Davis also decried as unethical a decision by top military officials to allow the use of evidence obtained by coercive interrogation techniques. He said Air Force Brig. Gen. Thomas W. Hartmann, the legal adviser to the top military official overseeing the commissions process, was improperly willing to use evidence derived from waterboarding, a form of simulated drowning. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," Davis testified. But he said Hartmann replied that "everything was fair game -- let the judge sort it out."

It doesn't get any more sickeningly corrupt than that and because we know that they did this in the Department of Justice in the US Attorney scandal, it's completely believable.

The ACLU has someone observing the hearings who adds some detail to those observations in this Daily Kos post:

Many of Davis’s direct conflicts were not with Haynes but with Brigadier General Thomas Hartmann, the legal advisor to the commissions. Hartmann was particularly intent on prosecuting the "9/11 cases." He told Davis that the election was coming up in 2008, and "if we don’t get these cases started, the commission system will implode. Once we get the victims’ families energized, we’ll be rolling, and when the train is rolling, it will be hard for the next president to stop."

Hartmann wondered why Davis, who had repeatedly made clear that he would never permit the introduction of evidence extracted through waterboarding, believed he had authority to make that decision. Other senior officials believed that waterboarding was acceptable, said Hartmann, and the judge not Davis, should sort it out. Hartmann also demanded a faster pace in bringing and prosecuting charges, even if that meant proceeding with classified evidence in closed proceedings. Davis insisted on transparency as a key to the commissions’ legitimacy.

In August of 2007, Davis wrote a detailed complaint laying out what he believed to be the improper actions of Hartmann, and delivered the complaint to the military commissions’ chief official, convening authority Susan Crawford. Crawford had left early that day for a Johnny Mathis concert but she responded eventually by informing Davis that Hartmann did not report to her, so she had forwarded the complaint — to Jim Haynes. In October, Davis was summoned to Haynes’s office, where he learned that the chain of command had been altered to place Haynes at the top.

Davis resigned immediately. He explained: "The guy said waterboarding was A-OK. I was not going to take orders from."

Davis then submitted another detailed complaint to the Department of Defense’s Inspector General. In response, he received a one-page, typed letter. It informed him that his complaint had been referred to the department’s "legal expert" — Jim Haynes.

Joseph Heller couldn't have come up with that scenario.

I don't know what will become of all this. All the presidential candidates, including McCain, say they will close Guantanamo so I guess that's something. But the process in this was so deeply corrupt and immoral that the next government simply has to do something about this to expose the wrongdoing and take steps to ensure that it doesn't happen again. Without presidential leadership, I don't see how it will happen.

I'm sure McCain would do nothing. He's part of the culture that did this and has shown a total willingness to provide cover for the military on these issues during the Bush administration. I would really like to hear something more from the other two about what they will do about this if they become president.