BY MORRIS D. DAVIS
I was the chief prosecutor for the military commissions at Guantánamo 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 must 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 U.S. 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. But Crawford 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 people 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 must 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 U.S. 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 4th U.S. 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 people 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 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 are truly 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.
Only one case completed
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.
U.S. 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.
U.S. Air Force Col. 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.
Sunday, December 16, 2007
Why I quit as chief prosecutor at Guantánamo
Lawmakers say not deterred on CIA probe
U.S. Congress members vowed on Sunday to investigate the CIA's destruction of videotapes depicting harsh interrogation of terrorism suspects, despite Justice Department advice that the agency not cooperate.
The top Republican member of the House of Representatives Intelligence Committee and a leading Democratic voice on security joined in a blistering attack on the CIA and on the complex network of U.S. intelligence agencies in general.
"We want to hold the (intelligence) community accountable for what's happened to these tapes," Republican U.S. Rep. Pete Hoekstra of Michigan said on "Fox News Sunday." "We will issue subpoenas ... Our investigation should move forward.
He said he had no confidence in U.S. intelligence leadership. "You've got a community that's incompetent. They are arrogant. And they are political. And they don't believe that they are accountable to anybody. They don't believe that they're accountable to the president."
Hoekstra said CIA Director Gen. Michael Hayden should answer for what he called misleading statements by the agency during his term, which began in 2006 after the tapes had been destroyed.
It is believed that the tapes, destroyed in 2005, depicted the use of a simulated drowning technique called waterboarding.
The United States has been widely criticized by European allies and human rights groups for methods like waterboarding, in which prisoners are made to fear that they are drowning. President George W. Bush has repeatedly said the United States does not torture.
The disclosure this month that the CIA destroyed lengthy recordings of the 2002 interrogations of two top al Qaeda suspects has prompted furious denunciations from lawmakers and human rights advocates.
"It smells like the cover-up of the cover-up," said Democratic U.S. Rep. Jane Harman of California, chairwoman of the House Homeland Security subcommittee on intelligence.
The Justice Department, under new Attorney General Michael Mukasey, whose contentious confirmation focused on his refusal to call waterboarding illegal torture, has launched a preliminary videotape probe in conjunction with the CIA's inspector general.
But the Democratic-led Congress has launched its own probes. The Justice Department last week urged the CIA not to cooperate, saying it could interfere with the department's investigation.
Mukasey also rejected a congressional request for information about the Justice Department's probe.
"I warned them not to destroy the videotapes," Harman said on the Fox program. "I sent them a letter in 2003, and they did it anyway and they didn't tell us."
"Congress does absolutely need to exercise its constitutional authority," to investigate, she said. Harman also cited concerns about the CIA inspector general's ability to participate in fair investigation.
In a separate court filing, the Justice Department last week urged a U.S. district court judge not to investigate the videotapes.
The judge in 2005 had ordered the government to preserve information on prisoner mistreatment at the U.S. Naval facility at Guantanamo Bay, Cuba. But the Justice Department said there was no evidence the prisoners believed to be on the videotapes, including suspected al Qaeda lieutenant Abu Zubaydah, were at Guantanamo at the time.
The CIA said it destroyed the tapes lawfully and did so out of concern for the safety of agents involved in the negotiations if the recordings were ever made public.
The fear of torture
As we all now know, the CIA has destroyed hundreds of hours of video tapes of the likely 2002 water torture of three men, allegedly involved with al-Qaida, by its agents. Although the CIA has not acknowledged that the videos are of water torture - often known euphemistically as “waterboarding” - a former CIA agent, John Kiriakou, has said that the waterboarding was authorised from the highest levels of the Bush administration.
Now we are seeing the usual Washington scrambling and casting of blame after another serious revelation of torture. Most of the official focus seems to be on who made the decision to approve the destruction and not on the underlying issue: the fact that the Bush administration, with the apparent consent of some of the congressional leadership, sanctioned torture.
This endorsement was criminal under both US law and international law - and that opens high level administration officials to prosecution, whether in the US or abroad.
This fear of prosecution for torture is the best explanation as to why these tapes were destroyed. They would have been vivid and compelling example of the violation of laws against torture - laws that in the US carry a life sentence or the death penalty if the victim is killed. Laws in most European countries make such violations of the convention against torture a universal crime, prosecutable no matter where the torture occurred or where the torturer resides.
Another explanation for the destruction might be the anger the footage could engender in the Muslim world if they were revealed publicly. However, the chances for public revelation were slim. Unlike the Abu Ghraib prison photos, these tapes were apparently only in the possession of the CIA. That explanation lets the CIA and the Bush administration off the hook much too easily and ignores evidence that fear of prosecution was likely critical in the destruction decision.
CIA head Michael Hayden’s explanation is patently absurd: he said that he feared for the safety of the CIA agents involved if al-Qaida saw their identities. Apart from the ability to shadow out the faces, what are the real chances that someone in al-Qaida would see the tape and be able to identify and track down an agent?
The fear of prosecution best explains the destruction of the tapes. That fear has governed numerous actions of the Bush administration regarding the torture program. The earliest legal memos from the Bush administration, as long ago as January 2002, were explicit on this issue and advised not applying the Geneva conventions as a means of avoiding prosecutions that could follow from their violation. The McCain amendment builds into its prohibition on cruel, inhuman, and degrading treatment a defense for authorized interrogation practices and those that relied upon “the advice of counsel.” The Military Commission Act of 2006, passed after the destruction of the tapes, forgives past violations of the Geneva conventions by officials involved in the torture program. So we have Congress, and not just the Bush administration, attempting to absolve clear violations of law.
This explanation also makes sense considering the risk that arguably was taken by destroying the tapes: they were relevant to a number of proceedings including the Guantanamo federal cases, criminal trials, the 9/11 commission and a federal freedom of information act case. Hayden tries to claim otherwise, saying they were not relevant to “any internal, legislative, or judicial inquires.” Yet, orders had been entered in those cases prior to the destruction mandating preservation or release of such information.
Now, those responsible for the destruction are facing contempt of court and possibly other sanctions. The tape destroyers and their superiors had to be very worried to run this risk. Unfortunately, we will never know what these tapes show. It is doubtful that anyone would question that waterboarding was torture if the tapes were seen. The tapes may also have much higher level officials observing the water torture then we now realize. Former US secretary of defence Donald Rumsfeld was involved in the torture of Guantanamo detainee Mohamed al-Qahtani, and was likely involved in others.
So why, if there was such a fear of prosecution by officials, did they video hundreds of hours of these interrogations in the first place? Hayden says it did so to insure that the CIA proceeded “in accord with established legal and policy guidelines.” This seems farfetched. Would the CIA or the Bush administration take the huge risk of making such videos when the tapes could lead so directly to a prosecution?
There is another, more plausible, explanation. It is likely the tapes, or some version of them, were to be used as a threat against those who were waterboarded and others whom the CIA or US officials wanted to interrogate. Videos and photographs of the humiliation and powerlessness of those tortured could be used as threats to get other detainees to “cooperate” and could even make informants of some detainees to be released - under threat that their “cooperation” or “humiliation” could be exposed. This also explains why it took so long to destroy the tapes. If they were just done to insure compliance with guidelines, why not destroy them a short time later?
In the end for the CIA and the administration the destruction of the tapes, despite the fallout, was better then the alternative of the potential criminal prosecution of both CIA and high level executive officials. The front page scandal we are dealing with is about the destruction of the tapes and not the criminal conduct that underlies them.
The Bush administration can and will weather, as they have before, the fallout and finger pointing from this scandal. A few congressional inquiries and some internal investigations from Congress, possibly a scalp or two of a mid-level official, and that may well be the end of the matter. This outcome is more or less assured - in part because of Congressional involvement in tacitly approving the techniques and possibly the destruction itself - because the best evidence no longer exists.
Saturday, December 15, 2007
The International Committee of the Red Cross and Guantánamo Bay
The Geneva Convention gives the International Committee of the Red Cross (ICRC) a mandate to visit prisoners of war and ensure that they are not mistreated. The ICRC has been visiting detainees at the Guantánamo Bay detention centre since its inception, but it reports any concerns privately to the US government. It is ICRC policy that its reports not be made public, in exchange for full access to prisoners. However, a 2004 report by the ICRC on Guantánamo was leaked to the New York Times, at the time of the Abu Ghraib prison abuse scandal. The report stated that interrogation techniques used at Guantánamo were "tantamount to torture".
In 2002, the US government declared itself exempt from obligations to treat detainees in accordance with the Geneva Convention. A White House press 'fact sheet' (http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html) stated that "Al-Qaida is not a state party to the Geneva Convention; it is a foreign terrorist group. As such, its members are not entitled to POW status." This position is reiterated in the leaked document Welcome Foreign Attache Visitors (to Iraq) (See 'Key Definitions' in the Introduction). The press 'fact sheet' continued: "Even though the detainees are not entitled to POW privileges, they will be provided many POW privileges as a matter of policy... The International Committee of the Red Cross has visited and will continue to be able to visit the detainees privately."
This claim is directly contradicted by both of the documents obtained by Wikileaks, Camp Delta SOP (2003) and Camp Delta SOP (2004). There it is revealed that some detainees are classified as being permitted "No Access: No contact of any kind with ICRC. This includes delivery of ICRC mail."
The US government cited the ICRC visits as evidence that prisoners were not being mistreated at Guantánamo, despite the ICRC's repeated (private) reports to the contrary. Now we find that some prisoners were kept even from the ICRC's gaze. It is not clear from the ICRC's 2004 Annual Report whether the ICRC knew this. Their more immediate concern was for the prisoners in the CIA's 'black site' prisons, to whom they were granted no access at all.
McCain Wants to Create New Army Interrogation Specialty to End Motivation to Torture
Republican White House hopeful John McCain said he wants "a crash program" in civilian and military schools that emphasizes language and creates a "new specialty in strategic interrogation" so the nation never feels the need for torture.
McCain, a former Vietnam prisoner of war who suffered mistreatment, talked about the new proposal at a Columbia campaign stop Saturday.
McCain said he wanted to create an Army Advisory Corps of 20,000 soldiers to act as military advisers and a new Office of Strategic Services to fight terrorists. He said he wanted them to pursue "a crash program in civilian and military schools" to prepare more experienced speakers in strategically important languages such as Arabic, Chinese, Farsi and others, and to "create a new specialty in strategic interrogation — a new, a new group of strategic interrogators so that we never have to feel motivated to torture anyone ever again."
When asked if he knew whether U.S. forces had engaged in torture in the past, the Arizona senator said he didn't.
"I do not know whether they've been involved in torture because I don't have that kind of information," McCain said. "I do know that when tapes are destroyed of interrogations, it contributes enormously to the cynicism, the skepticism, and also is further damaging to the image of the United States of America in the world."
The CIA recently acknowledged that in 2005 it destroyed videotapes made three years earlier of the CIA's interrogations of two terror suspects. The tapes were made to document how CIA officers used new, harsh questioning techniques approved by the White House to force recalcitrant prisoners to talk.
Intelligence officials have said the methods that were shown on the videotapes included waterboarding, an interrogation tactic that causes the sensation of drowning and is banned by the Pentagon.
McCain also said he met with a "high ranking member of al-Qaida in Iraq" who told him that post-invasion lawlessness and images of prisoner abuse at Abu Ghraib helped recruit insurgents. The latter was "a great recruitment tool," McCain said. "He said it and I believe it."
He also said he'd go after terrorists with a new military force. "I'll set up a new agency patterned after the old Office of Strategic Services that will be a small, nimble, can-do organization that will fight" terrorist anywhere in the world and on the Internet, McCain said.
Later, at Newberry College's commencement ceremony about an hour away, McCain talked about the response to torture being a measure of character.
"These tools are not American tools and the easy way is not the American way," McCain told the graduating class.
McCain said the people he spent time with as a POW in Vietnam were tortured and encouraged to make statements to stop their suffering, but didn't even when promised no one would find out. McCain said they would know what they'd said.
"That, my friends, is character," McCain told the graduating class.
Bush taking more authority over military lawyers
From Talking Points Memo:
The Bush administration? Undermining the independence of military lawyers with a dubious power grab? You don't say.
The Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House's policies toward prisoners in the war on terrorism.
The administration has proposed a regulation requiring "coordination" with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force - can be promoted.
A Pentagon spokeswoman did not respond to questions about the reasoning behind the proposed regulations. But the requirement of coordination - which many former JAGs say would give the administration veto power over any JAG promotion or appointment - is consistent with past administration efforts to impose greater control over the military lawyers.
The former JAG officers say the regulation would end the uniformed lawyers' role as a check-and-balance on presidential power, because politically appointed lawyers could block the promotion of JAGs who they believe would speak up if they think a White House policy is illegal. (emphasis added)
Charlie Savage's piece, which is well worth reading, adds that the plan would direct broad new power over the JAGs to William "Jim" Haynes, the Bush-appointed general counsel at the Pentagon, best known for writing the Pentagon's infamous 2002 policies endorsing physical and mental duress on terror prisoners, and reportedly cutting top military lawyers out of the loop if they were likely to object.
Guantanamo detainee asks court to declare that he was tortured
In a filing made public Friday, lawyers for a Guantanamo detainee have asked a federal court to examine the way he was questioned while in secret CIA custody for three years and decide whether he was tortured.
If the court takes up the request, it would shift from Congress to the courts the ongoing debate over whether so-called enhanced interrogation techniques authorized by President Bush against al Qaida suspects included illegal torture. Among those techniques was waterboarding, which simulates the sensation of drowning.
Justice Department spokesman Erik Ablin said Friday the Bush administration had no immediate comment, and would respond in a brief on Thursday.
Lawyers for Majid Khan, 27, filed the motion Dec. 6 with the U.S. Court of Appeals for the District of Columbia Circuit, the only civilian court authorized under the Military Commissions Act to hear matters involving detainees at Guantanamo.
The filing was made public on Friday after an intelligence review. Two full pages of the 15-page filing were blacked out as were large sections of six other pages, apparently because they contained descriptions of Khan's treatment, which the Bush administration considers classified.
Khan, who was raised and educated in suburban Baltimore, says Pakistani security forces handed him over to the CIA in March 2003 and subjected him to a U.S. program of "state-sanctioned torture.''
President Bush announced Khan had been sent to Guantanamo in September 2006, along with 13 other "high-value detainees.'' The Pentagon, which has yet to charge him with a war crime, alleges that reputed 9/11 mastermind Khalid Sheikh Mohammed assigned Khan to research how to poison U.S. water reservoirs and blow up U.S. gas stations.
There's no way to verify either Khan's or the Pentagon's assertions.
The allegations of torture first arose at Guantanamo on April 15 when a panel of military officers met to determine whether Khan should be declared an enemy combatant. News reporters were not allowed to attend the hearing, but a censored transcript released later deleted sections where Khan's treatment was discussed.
Khan remains the only high-value detainee to have met with his lawyers. The filing made public Friday refers to declarations written by Khan's lawyers, Gitanjali
Gutierrez and Wells Dixon, in which Gutierrez describes alleged CIA interrogation techniques used on Khan and Dixon describes those allegedly used on other individuals. Those declarations have not been made public.
Earlier this week, the appeals court ordered the government to preserve any evidence of how Khan was treated while in CIA custody. The CIA recently disclosed that it had destroyed tapes of interrogations of another suspected al Qaida member, Zayn Abidin Abu Zubaydah, who was subjected to waterboarding.
But the court said the order was only preliminary, until it had time to consider both Khan's and the government's arguments.
A decision to hear the case would be a major turn in the ongoing debate on what constitutes torture.
"We don't have any case law since 9/11 to give us guidance as to what techniques fall above or below the line of what constitutes torture or ill treatment or cruel or unusual or degrading treatment,'' said retired Army Lt. Col. Jeffrey F. Addicott, a law professor and director of the Center for Terrorism Law at St. Mary's University in San Antonio, Texas.
Addicott, who retired in 2000, was senior legal counsel to the U.S. Army's Special Forces or Green Berets and argues that waterboarding is not torture because it is essentially trickery that takes seconds and "does not constitute severe physical or mental suffering.''
But others disagree. The Army's field manual specifically prohibits the procedure, and the House of Representatives this week approved a bill that would outlaw its use by the CIA as well. The bill's fate is unclear in the Senate and President Bush has threatened to veto it if it is passed.
