No Comment — October 22, 2007, 12:22 am

At Gitmo, No Room for Justice

Will the Lord be pleased with thousands of rivers of oil? . . . He hath shewed thee, 0 man, what is good; and what doth the Lord require of thee but to do justly, and to love mercy, and to walk humbly with thy God?

Micah 6:7-8

In the past several weeks I’ve had a number of meetings with military and civilian lawyers involved in the Guantánamo military commissions, including prosecutors, defense counsel, military judges and staffers with the convening authority. They are a disciplined group, with a strong sense of dedication to the performance of their mission. And there is pretty much across the board a smoldering anger towards the Bush Administration—a sense that the military commissions, which could have been used to showcase American values, have instead become a sort of laughing stock for the world, an embarrassment for the uniformed services.

A bit of that has spilled into the press in the past, and more of it emerged this last weekend, in a story by Josh White that ran in the Washington Post.

Politically motivated officials at the Pentagon have pushed for convictions of high-profile detainees ahead of the 2008 elections, the former lead prosecutor for terrorism trials at Guantanamo Bay said last night, adding that the pressure played a part in his decision to resign earlier this month. Senior defense officials discussed in a September 2006 meeting the “strategic political value” of putting some prominent detainees on trial, said Air Force Col. Morris Davis. He said that he felt pressure to pursue cases that were deemed “sexy” over those that prosecutors believed were the most solid or were ready to go.

Davis said his resignation was also prompted by newly appointed senior officials seeking to use classified evidence in what would be closed sessions of court, and by almost all elements of the military commissions process being put under the Defense Department general counsel’s command, something he believes could present serious conflicts of interest. “There was a big concern that the election of 2008 is coming up,” Davis said. “People wanted to get the cases going. There was a rush to get high-interest cases into court at the expense of openness.”

Sound familiar? Instead of proceeding on a detached professional basis, building a case with sound evidence, the instructions are to pull out cases with strong TV news appeal and get them running just in time for the 2008 presidential elections. This modus operandi has marked the Bush Administration for six years. Indeed, on Tuesday, John Conyers’s Judiciary Committee will convene hearings to look at political prosecutions brought by the Bush Administration. These prosecutions focused on a different species of “enemy combatants,” namely Democrats. They were brought just as election cycles got underway and hawked aggressively to the media. They provided made-to-order campaign season press copy for the G.O.P. And they ruthlessly debased the American criminal justice system, producing one of the worst crises of confidence in the Justice Department in the nation’s history.

If an Administration would engage in this sort of shenanigans with American citizens, can it really come as a surprise that they would do still worse to the detainees at Guantánamo?

The stakes at Guantánamo are enormous. It’s not the future of the handful of detainees who will be tried that hangs so much in the balance as it is America’s reputation for justice. At the end of World War II, America embarked upon an aggressive program of trying leaders of the Axis powers for crimes against humanity and war crimes. These proceedings, particularly the trials at Nuremberg, succeeded in giving the world a message: that the Americans stood for fair justice. The trials followed basic procedural norms, were conducted swiftly and were followed intensely by the entire world. In the end a number of the worst offenders were executed, others received prison sentences, and a handful escaped punishment. The nation’s reputation was enhanced in the eyes of the world as a result.

But how does the Bush Administration proceed? One senior officer told me this:

We worked hard to craft a military commissions system that met the terms the Administration gave us and was still within the bounds of the law. It was a very difficult task. I think we met the challenge, but the Supreme Court will have the final say on that. But no one from the Administration ever asked us: How should we handle this? They never sought the advice of the career military professionals. Instead we had a bunch of young political appointees giving us orders about what to do at every turn. And they probably didn’t ask because they knew what answers they would get. It certainly never would have looked anything like what we wound up with.

While Col. Davis cites political appointees in the Pentagon, a number of his colleagues focus their criticisms on the Department of Justice. They say that political appointees at Justice have been responsible for most of the egregious decisions which have embarrassed the military in the past. “The problem is pretty simple. These people have no interest whatsoever in justice. It’s politics 24/7. It will serve them through a couple of press cycles, but in the end it will embarrass the military and the United States bigtime.”

Another officer cited the case of David Hicks. “One of our staffers was present when Vice President Cheney interfered directly to get Hicks’s plea bargain deal. He did it, apparently, as part of a deal cut with [Australian Prime Minister] Howard. I kept thinking: this is the sort of thing that used to go on behind the Iron Curtain, not in America. And then it struck me how much this entire process had disintegrated into a political charade. It’s demoralizing for all of us.”

On September 27, Defense Secretary Gates said that he wanted to shut down the process on Guantánamo. “I was unable to achieve agreement within the executive branch on how to proceed,” Gates told a U.S. Senate committee. He went on to explain that his initiative had been obstructed by “other lawyers” within the Administration—words that were immediately understood as a reference to Alberto Gonzales and David Addington. Col. Davis’s comments help us understand why the Defense Department wants to see the military commissions process shut down. The objective is pretty transparent. It’s to preserve the integrity and reputation of the armed forces. And of the United States.

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