The Guantánamo Commissions are being whipped ahead by the Bush Administration, but as things progress does anyone mistake this process for justice? Certainly not the participants. The military lawyers who serve as prosecutors, defense counsel and judges have denounced the entire charade in terms as explicit as could be imagined.
The most passionate denunciations have come from the prosecutors. The chief prosecutor, Colonel Morris Davis, quit and has delivered a series of public statements—the most powerful of them carried in the Washington Post and then in the Nation–in which he recounts his own discussions with the mastermind behind the commissions process, William J. Haynes II, the former general counsel to Defense Secretary Donald Rumsfeld and now a corporate counsel at Chevron Inc. In these discussions, Haynes makes clear that he desires the commissions to be a political show trial worthy of Andrei Vyshinsky, and that his principal objective in arranging the process is to furnish red meat to fuel a Rovian campaign agenda as the Republican Party attempts to hold the White House in 2008. And, as if there were any room for ambiguity, he goes on to insist that there can be “no acquittals.” A model of justice of which all Americans can be proud.
Lest there be any mistaking the importance of Haynes’s utterances, he then proceeded to install himself as the man with ultimate command authority over the military commissions process.
Colonel Davis was invited to testify under oath about these matters before Congress, and so was Jim Haynes. How did Haynes react? He refused to appear before Congress, and then he issued an order to Colonel Davis directing him not to appear as well. As the president of the nation’s leading independent bar association, Barry Kamins, stated, this was a conscious act to obstruct Congressional investigation. More importantly it looks the act of a man who had engaged in serious wrongdoing and was eager to cover it up. Colonel Davis has offered to submit to a lie-dectector test to back up his claims. And Jim Haynes reacts with deafening silence, having Pentagon public affairs officers blandly state that he “disputes” the Davis account as he packs his bags for the move to San Mateo.
These are not trivial matters. The reputation of the nation hangs upon them, and Congress’s inaction so far is inexplicable.
Shadowy administration apologists who invariably do not want to be cited by name quickly speak of “personality disputes” and assail Colonel Davis’s ego. But this is not just about Colonel Davis. A total of five prosecutors have now stepped down after making extremely disturbing charges to the effect that the commissions have been rigged. And in an internal Pentagon probe, other prosecutors told investigators that they agreed with Davis’s concerns. If the prosecutorial team at Gitmo, or a large part of it, resigns and levels the same charges, no one who is tracking these proceedings will be remotely surprised. And remember, we’re talking about prosecutors.
The view of the defense counsel has been thunderous, and to the same effect.
That just leaves the judges as the third component. Of course, the judges have already hastened to express their lack of confidence in the integrity of the military commissions. They handed down decisions at the outset of the process which expressed a technical but thorough disapproval of the process in place. And on Friday, another decision by the chief judge, Colonel Peter Brownback, is directed again explicitly to fundamental questions of fairness in the arrangement of the commissions in a case involving a Canadian minor which has already caused an international uproar.
In a rebuke to the government, an Army judge Friday issued five successive orders instructing the Pentagon to do more to help lawyers for Canadian captive Omar Khadr build a defense case. Khadr, 21, faces a trial by military commissions as an alleged al Qaeda terrorist. He is accused of throwing a grenade in a July 2002 firefight in Khost, Afghanistan, that killed a U.S. soldier. He was 15.
If convicted, he faces life in prison. . .
The judge ordered prosecutors to give Khadr’s lawyers the list of all American personnel who interrogated the Canadian as well as access to their handwritten notes, made both in Afghanistan and at the prison camp here. He postponed a May 5 trial date to allow for more hearings on acceptable evidence, but set no date. And he ordered that an on-scene commander expected to testify against Khadr at the trial submit to questioning by the Canadian’s defense lawyers.
It was another victory for lawyers seeking to fend off charges of murder and providing material support for terrorists. Pentagon prosecutors had argued before Brownback — with Khadr watching at the defense table — that they had already searched available records and interviewed potential witnesses, and had found nothing more to provide in the discovery phase to defense lawyers.
To his credit, the judge found the prosecution’s excuses preposterous. His remarks indicate a clear lack of comfort with the allocation of resources to the defense. JAG defense lawyers have also charged that some evidence submitted was doctored in order to incriminate their client. They submitted evidence showing that the account had been modified over time, and the judge responded by directing the author to submit to questioning.
This report, like so many others, shows a high degree of professionalism among the JAG prosecutors, defense counsel and judges. And it also puts another defendant in the dock: the Bush Administration, which is working feverishly to avoid justice being done at Guantánamo and is staining the nation’s reputation.
So does anybody in the world actually think the Guantánamo commissions have anything to do with justice? Not the lawyers who are involved in them. Not the independent observers. Not legal experts around the world. In fact, it’s hard to believe that anyone is dense enough to believe that. These proceedings once more put the Bush Administration and its perverted understanding of justice on trial. But the damage done in the end will be to the United States, not just to the failed presidency of George W. Bush.
This is why Congress needs to listen to President Kamins’s plea, convene hearings, and get straight to the bottom of the charges of rigged process that the JAGs have leveled. Their failure to act is inexcusable.