Colonel Morris Davis to Testify — for Hamdan!

by Kevin Jon Heller

Wow — he must really think the military commissions are unfair:
In a stunning turnaround, the former chief military prosecutor at Guantanamo Bay said Thursday he would be a defense witness for the driver of Osama bin Laden.

Air Force Col. Morris Davis, who resigned in October over alleged political interference in the U.S. military tribunals, told The Associated Press he will appear at a hearing for Salim Ahmed Hamdan.

“I expect to be called as a witness … I’m more than happy to testify,” Davis said in a telephone interview from Washington. He called it “an opportunity to tell the truth.”

At the April pretrial hearing inside the U.S. military base in southeast Cuba, Hamdan’s defense team plans to argue that alleged political interference cited by Davis violates the Military Commissions Act, Hamdan’s military lawyer, Navy Lt. Brian Mizer, told the AP.

Davis alleges, among other things, that Pentagon general counsel William Haynes said in August 2005 that any acquittals of terrorism suspects at Guantanamo would make the United States look bad, calling into question the fairness of the proceedings.

“He said ‘We can’t have acquittals, we’ve got to have convictions,'” Davis recalled.

The former chief prosecutor says the statement by Haynes, first reported this week in The Nation magazine, occurred after the general counsel compared the Guantanamo tribunals to Nuremberg and Davis says he pointed out some of those tried at the end of World War II were acquitted, giving them more credibility in the eyes of the world.

At the time, Davis says, he shrugged off the comments. But he came to view them as alarming after he was placed in a chain of command under Haynes and the prosecutor began to sense political pressure on his work.

A Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, denied that Haynes made such a comment. Gordon also denied the former prosecutor’s allegations of political interference, which he has repeated in newspaper opinion columns and in interviews in recent months.

If the judge rejects the motion to dismiss, Mizer said the defense will seek to remove two top officials in the military commissions system — legal adviser Air Force Brig. Gen. Thomas Hartmann and Convening Authority Susan Crawford — from Hamdan’s case. This would likely result in further delays to a trial that has been stalled by legal challenges.

It is not clear whether the Pentagon — which defends the commission system as fair — will allow Davis to testify. In December, two months after he resigned as the chief prosecutor for the Guantanamo war crimes tribunals, the Defense Department barred Davis from appearing before a Senate Judiciary subcommittee.

It will be interesting to see what happens if the Pentagon prohibits Davis from testifying. His testimony is obviously integral to Hamdan’s argument that political interference with the commissions has violated the MCA. What would the remedy be for such a blatant violation of Hamdan’s right to a fair trial? Dismissal of the case? That seems unlikely. But what other remedy would protect his rights, such as they are?

Either way, of course, prohibiting Davis from testifying would be a PR disaster for the military commissions. The irony is palpable: political interference with the commissions in order to prohibit a defendant from proving political interference with the commissions…

http://opiniojuris.org/2008/02/22/colonel-morris-davis-to-testify-for-hamdan/

4 Responses

  1. By what authority could the Pentagon prevent Colonel Davis from testifying? If he is subpoenaed, why would an order not to testify be any different from an order from a civilian employer not to testify, that is, of no force, and contempt of court?

  2. Clearly the Dep’t of Defense is not just like any other employer. It is an agency of our government, a part of our sovereign. They could attempt to claim a privilege under Military Commission Rule of Evidence 506…(or 505 if some of it is classified) but I doubt it. They already know what he has said and is going to say. The MCREs are available on line. The standard for 506 privilege is:

    (a) General rule of privilege. Except where disclosure is required by an Act of Congress, government information is privileged from disclosure if disclosure would be detrimental to the public interest.

    (b) Scope. “Government information” includes official communication and documents and other non-classified information within the custody or control of the Federal

    Government.

  3. The Pentagon could assign COL Morris to Afghanistan or Iraq for the duration and claim that military exigencies prevent him from testifying.

    And, while he is there, he could be assigned to patrol a particularly dangerous area and have an “accident.” (I know, a full colonel on patrol would sound strange, especially an Air Force Colonel, more especially, a JAG who was charged with prosecuting war crimes, indeed the chief prosecutor).

    Strange things happen when you mess with the government…

  4. J.D.,

    So preventing Davis from testifying depends on the special rules for the kangaroo courts? Not surprising. In any case, as I understand MCRE 506, Colonel Davis superiors do not have standing to prevent him from testifying. It is actually the prosecution that must assert the claim, and they presumably have the burden of showing that the information would be contrary to the public interest. They don’t have a blanket right to block him from testifying.

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