Former chief prosecutor at Guantánamo Bay becomes a chief critic

Until four months ago, Colonel Morris Davis was the chief prosecutor at Guantánamo Bay and the most colorful champion of the Bush administration’s military commission system. He once said sympathy for detainees was nauseating and compared putting them on trial to dragging “Dracula out into the sunlight.”

Then in October he had a dispute with his boss, a general. Ever since, he has been one of those critics who will not go away: a former top insider, with broad shoulders and a well-pressed uniform, willing to turn on the system he helped run.

Still in the military, he has irritated the administration, asserting in articles and interviews that Pentagon officials interfered with prosecutors, exerted political pressure and approved the use of evidence obtained by torture.

Now, Davis has taken his most provocative step, completing his transformation from Guantánamo’s chief prosecutor to its new chief critic. He has agreed to testify at Guantánamo on behalf of one of the detainees, Salim Ahmed Hamdan, a driver for Osama bin Laden.

Davis, a career military lawyer nearing retirement at 49, said that he would never argue that Hamdan was innocent but that he was ready to try to put the commission system itself on trial by questioning its fairness.

He said that there was “a potential for rigged outcomes” and that he had “significant doubts about whether it will deliver full, fair and open hearings.”

“I’m in a unique position where I can raise the flag and aggravate the Pentagon and try to get this fixed,” he said, acknowledging that he was enjoying some aspects of his new role.

He was replaced as chief Guantánamo prosecutor after he stepped down but is still a senior legal official for the air force.

Among detainees’ advocates, there has been something of a gasp since it was announced last week that Davis would be taking the witness stand in April.

Hamdan’s chief military lawyer, Lieutenant Commander Brian Mizer, said he would offer Davis to argue that charges against Hamdan should be dismissed because of improper influence by Pentagon officials over the commission process. Prosecutors may object, and it is unclear how military judges may rule.

But whatever happens, some detainee advocates say, officials are likely to have difficulty erasing the image of a uniformed former Guantánamo champion challenging them so directly - particularly, some of them said, one who was known for scorched-earth attacks on adversaries, be they terror suspects or lawyers.

“He was the attack dog for the military commission system,” said Zachary Katznelson, a lawyer for Guantánamo detainees.

Last year as chief prosecutor, Davis publicly suggested that a Marine defense lawyer for a detainee might be guilty of a crime for using “contemptuous words” about the president when the marine questioned the fairness of the Guantánamo system.

At the time, critics ridiculed “Moe” as an administration apologist. But in recent weeks, some of them have described him in nearly heroic terms.

Jennifer Daskal of Human Rights Watch called him the most significant insider to tell what he knows about Guantánamo.

“He has put his career on the line,” she said.

Pentagon officials have steamed about the extraordinary role Davis has staked out. Some people with Pentagon ties say the unusual story started as a power struggle between Davis and a Pentagon official who has broad powers over the Guantánamo legal system, Brigadier General Thomas Hartmann, who has declined to comment.

Brigadier General Thomas Hemingway, a retired military official who once supervised Davis at the Office of Military Commissions, said this week that he was surprised Davis was attacking the system he once championed.

“That’s not whistle-blowing you hear,” Hemingway said. “It’s a whine.”

In his contentious days at Guantánamo, lawyers who battled him said, Davis was known for a you’re-with-us-or-you’re-against-us style of news-conference warfare, delivered in an amiable North Carolina twang.

He is an experienced military lawyer, with years of work both in the prosecution and the defense. He is the son of a disabled veteran of World War II, and he is married with one daughter.

In interviews this week he was in his combative mode, challenging Pentagon officials to take lie-detector tests and asserting that commanders had praised him in the past.

He portrayed himself as battling political appointees. But he said he still believed that a military commission system could work.

“It’s gotten so tarnished that if we’re going to convince the world that this isn’t some rigged process we have to bend over backward,” he said.

He said the solutions were simple - giving control to military officials. But he suggested darkly that there were “people at key points in the process, that I just don’t know what their allegiance is.”

Davis: DoD General Counsel ‘Leaned On’ Me To Rush Detainee’s Trial Ahead Of Australian Elections

In March 2007, Australian native David Hicks, who was a detainee at Guantanamo Bay, became the first person to be sentenced by a military commission convened under the Military Commissions Act of 2006. At the time, critics charged that Hicks’ sudden plea bargain appeared to be the result of a political deal between Vice President Cheney and then-Australian Prime Minister John Howard.

A month before Hicks’ sentence was announced, Cheney visited Howard in Australia, where the Australian PM lobbied for the trial to “be brought on as soon as humanly possible and with no further delay.” At the time, Howard was in a tough re-election fight and Hicks’ fate was an issue in the campaign.

Yesterday, Col. Morris Davis — who was the lead prosecutor in Hicks’ trial — told Australia’s Herald Sun that he was “leaned on” by the Pentagon in a manner that “only made sense in political context“:

On the end of the line was the Pentagon’s general counsel, William “Jim” Haynes. He asked Colonel Davis how soon he could charge Hicks. The Australian had been held in custody without a hearing for five years after being picked up in Afghanistan in late 2001. […]

The only way Colonel Davis could make sense of what he was hearing from Mr Haynes was in the context of what he was reading about the political environment in Australia. […]

Colonel Davis says the phone calls he got from Mr Haynes and the timeline in Australia in which a “loyal ally” in Mr Howard was eyeing a difficult election and wanted to get the Hicks matter put to rest, means the nine-month sentence deal that got Hicks home has a “bad odour”..”

Davis, who has previously said that he “felt pressure to pursue high-profile convictions ahead of the 2008 elections, resigned from his position in October 2007 after he was placed under Haynes in the chain of command. Last week, Davis told the Nation that Haynes had insisted to him in 2005 that the Pentagon “can’t have acquittals” at Guantanamo because they’d “been holding these guys for so long” and it would be difficult to “explain letting them get off.”

Haynes announced yesterday that he is resigning in order to return “to private life next month.”

Torture advocate William Haynes resigns

Defense Department General Counsel William Haynes, who was a “prime mover” in the Bush administration’s efforts to bypass the Geneva Convention, announced today that he “is returning to private life next month.” Already a controversial figure due to his torture advocacy, the negative spotlight on Haynes increased last week when former Gitmo prosecutor Col. Morris Davis told The Nation that Haynes had insisted that the administration “can’t have acquittals” at Guantanamo Bay. More on Haynes’ role in the Bush administration here.

Romania Base Suspected CIA Prisoner Site

MIHAIL KOGALNICEANU AIR BASE, Romania (AP) -- It always happened at 1 a.m. In a secluded corner of this heavily guarded airfield, two snipers would creep across a rooftop and take their positions. Moments later, just below, a black minibus would arrive and wait.

Three times in 2004, and twice more in 2005, a jet landed and the black bus drove out to meet it. Large, mysterious parcels were exchanged that, according to a Romanian official who says he witnessed it, looked like bundled-up terror suspects.

The official, a high-ranking veteran with inside knowledge of operations at the base, said the planes then left for North Africa with their cargo and two CIA handlers aboard.

His descriptions, told on condition of anonymity to The Associated Press, add to suspicions surrounding Romania's involvement in "extraordinary rendition" - the beyond-the-law transfer of U.S. terror suspects from country to country by the CIA. Human rights advocates say renditions were the agency's way to outsource torture of prisoners to countries where it is permitted practice.

Romania's precise role is a little-reported part of the system that is being slowly revealed, often to the chagrin of U.S. allies. In an embarrassing reversal after years of denial, Britain admitted Thursday that its military outpost on the Indian Ocean island of Diego Garcia had twice been used as a refueling stop for the secret transport of terrorism suspects.

The European Commission on Friday accused Poland and Romania of dodging its requests to clarify their involvement. Both countries deny accusations of wrongdoing, including a report by Dick Marty, a Swiss official working for the Council of Europe, the continent's top human rights watchdog, who accused the CIA of running secret prisons in the two countries.

Prisoners typically were shackled and kept naked and in isolation, he alleged, in violation of the European Convention on Human Rights. Such treatment also would run contrary to Romania's own laws and its commitment to human rights, a key condition to the Balkan nation's 2007 accession to the European Union.

According to the Romanian official:

- U.S. pilots routinely filed bogus flight plans - or none at all - and headed to undeclared destinations.

- C-130 Hercules cargo planes and other U.S. military aircraft arriving from Iraq regularly parked in a restricted area just off the runway, where they feigned technical trouble and sat under guard for days at a time - awaiting repairs that never occurred.

- Three buildings on the military portion of the air base were strictly off-limits to Romanians but were frequented and controlled by the Americans.

"It was all set up and simulated to look like normal activity. But believe me, it was very unusual," said the official, who said he needed anonymity to protect himself.

"If you are 50 yards away, you say they are 'parcels,'" he said. "But I think people were on (the plane) and I think they were bundled up." The entire scene was completely out of character with normal aircraft arrivals or standard cargo protocol, he said.

But top Romanian authorities deny the CIA ran so-called "black sites" on their territory. While the official described a pattern of highly unusual flight maneuvers and covert American activities, he says he never saw a prisoner.

Mihail Kogalniceanu Air Base, former presidential security adviser Ioan Talpes said in an interview with the AP, had an arrangement with the CIA that gave the agency the right to use the base as needed.

"There were official arrangements of a secret and confidential nature which gave CIA planes the right to land at Romanian airports," said Talpes, who worked at the time for ex-President Ion Iliescu. "They had actions there that we didn't know about," Talpes said. He said Iliescu signed an agreement guaranteeing that Romania would secure the perimeter and otherwise not interfere.

John Sifton, who conducts independent human rights investigations, said the dates and descriptions of the flights described by the base official match the timing and routes of known CIA rendition flights recorded in Eurocontrol flight databases.

Those included an April 2004 flight from Guantanamo Bay, Cuba, that went out of its way to stop at Mihail Kogalniceanu before heading on to Casablanca, Morocco.

"It was a time when they were moving people around," Sifton told the AP. The Romania stopovers, he added, "look pretty shady to me."

Marty's report concluded that the CIA secretly held al-Qaida operatives, Taliban leaders and other "high-value detainees" in Romania and Poland between 2002 and 2005.

The report, citing unnamed intelligence officials, said five people either authorized or were aware of the Romania operation: Iliescu, Talpes, former Defense Minister Ioan Mircea Pascu, Sergiu Medar, a former head of military intelligence, and current President Traian Basescu. Detainees were subjected "to interrogation techniques tantamount to torture" and underscored "a permissive attitude on the part of the Romanian authorities."

Basescu's office refused to discuss the allegations. "What business do we have with this?" it replied. Pascu called it "a closed subject," and Medar declined a request to be interviewed.

Beyond the midnight flights and the bus, the base official who spoke with the AP said he had questions about what went on aboard larger aircraft from Iraq that arrived at the base and then parked for several days, supposedly awaiting repairs.

"They misinformed. They lied," he said. "It happened many times and there was nothing anyone could do about it."

President Bush and other administration officials have confirmed the existence of the rendition program but have not named the countries involved. They say the U.S. does not engage in torture.

Romanian officials said the U.S. military has invested about $18 million in Mihail Kogalniceanu Airport, including a $4 million perimeter fence, a new hangar and road improvements. Romania has supported and provided troops for the U.S.-led campaigns in Afghanistan and Iraq.

Talpes, the former presidential security adviser, said Romanian authorities did not intrude on the U.S. "respected zone" at Mihail Kogalniceanu, used mostly to ferry troops and supplies to Iraq and Afghanistan - because they did not want to make "an unfriendly gesture."

Pressed about whether prisoners were tortured, he said bluntly: "Even if I knew that one of my allies did something, I wouldn't tell you."

CIA chief spokesman Mark Mansfield said the agency had no comment about the black bus scenario, but he defended renditions as both legal and effective.

"They have disrupted potential attacks by taking terrorists off the streets, and they have allowed us, as well as our foreign partners, to gain invaluable intelligence on the terrorists who remain at large," Mansfield said.

Sen. Norica Nicolai, a former prosecutor who led a parliamentary investigation, said her probe found no evidence that the CIA operated a prison or conducted interrogations in Romania.

Nicolai said she was still waiting for Marty to respond to a September request to divulge his sources. "It's in our interests to try to see what happened. We are not a third-world country," she said.

But Cosmin Gusa, a leading opposition lawmaker, said a full accounting was unlikely. "Nobody wants to go deeper," he said. "They don't want to talk about this. This topic is a deadly one."