Former Prosecutor to Testify for Guantanamo Detainee
By William Glaberson
The New York Times
Thursday 28 February 2008
Until four months ago, Col. Morris D. 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, saying in articles and interviews that Pentagon officials interfered with prosecutors, exerted political pressure and approved the use of evidence obtained by torture.
Now, Colonel 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.
Colonel Davis, a career military lawyer nearing retirement at 49, said that he would never argue that Mr. 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 "is 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 is 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 Colonel Davis would be taking the witness stand in April.
Mr. Hamdan's chief military lawyer, Lt. Cmdr. Brian L. Mizer, said he would offer Colonel Davis to argue that charges against Mr. 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 advocates for detainees 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, Colonel 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 Colonel 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 Colonel Davis the most significant insider to tell what he knew about Guantánamo. "He has put his career on the line," Ms. Daskal said.
Pentagon officials have steamed about the extraordinary role Colonel Davis has staked out. Some people with Pentagon ties say the unusual story started as a power struggle between Colonel Davis and a Pentagon official who has broad powers over the Guantánamo legal system, Brig. Gen. Thomas W. Hartmann, who has declined to comment.
Brig. Gen. Thomas L. Hemingway, a retired military official who once supervised Colonel Davis at the Office of Military Commissions, said this week that he was surprised Colonel Davis was attacking the system he had once championed.
"That's not whistle-blowing you hear," General Hemingway said. "It's a whine."
In his contentious days at Guantánamo, lawyers who battled him said, Colonel 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 backwards," he said. He said the solutions were simple - giving control to military officials. But he suggested darkly that there are "people at key points in the process, that I just don't know what their allegiance is."
There is little question that Colonel Davis's unusual path began with some angry exchanges with General Hartmann last summer. When the colonel resigned as chief military prosecutor, officials disclosed that he had filed a formal complaint asserting that General Hartmann improperly pressed for more war crimes cases and demanded "sexy" cases that would excite the public. An internal report sided with General Hartmann but suggested that he should avoid too much influence over the military prosecutors.
From there, after being reassigned by the Air Force, Colonel Davis found an audience for his accusations.
He told one newspaper that top defense officials discussed the "strategic political value" of putting prominent detainees on trial before the 2008 presidential election. He told another that he had been pressed to hold hearings in closed courtrooms. He wrote op-ed pieces saying General Hartmann had reversed his policy of refusing to use evidence derived through torture.
He told The Nation that the general counsel of the Pentagon, William J. Haynes II, informed him "we can't have acquittals" at Guantánamo.
In a statement Wednesday a Pentagon official would say only, "We disagree with the assertions made by Colonel Davis."
Some detainees' lawyers say they recognize a pattern in Colonel Davis's approach. He once wrote an article in an Air Force journal offering advice to military leaders on how to handle the media. "Take the offensive," it said.
Muneer I. Ahmad, a law professor at American University who fought Colonel Davis in a detainee's case at Guantánamo, said he recognized the strategy in the attacks on Pentagon officials. "It's his way of trying to reshape what the story is," Professor Ahmad said.
If it is, Colonel Davis hinted he is not satisfied yet. "I'm hoping at some point to retire, so I can say what I really think," he said.