Colonel Davis Speaks Out:

Colonel Morris Davis was the chief prosecutor for the Office of Military Commissions until he resigned his position in October. Today, in the Los Angeles Times, Col. Davis explains his decision. According to Davis, he reluctantly concluded that "full, fair and open trials were not possible under the current system" and that "the system had become deeply politicized and that I could no longer do my job effectively or responsibly." It's a powerful critique of the current system of military tribunals by someone who supports such tribunals, in principle, but has developed grave reservations about how they are operating in practice. My former colleague Amos Guiora has further comments on the AIDP blog here.

Pentagon Ordering Former Chief Prosecutor at Guantanamo Not To Appear Before the Senate Judiciary Committee?

That's what Sen. Feinstein reports (linked to and quoted by TPMmuckraker: "We assured the administration that Colonel Davis would not be asked about open and pending cases. But we were told simply that Colonel Davis was active duty military, and because he was active duty military, they could issue an order he had to follow." (Recall that Col. Davis has publicly criticized the operation of the current military tribunal system, and resigned his chief prosecutor post because of his views.)

I'm sure Col. Davis does have to follow his commanding officers' orders; I can't speak to whether the Senate has subpoena powers over such officers, but to my knowledge he hasn't been subpoenaed. But I can say that, based on the facts as reported by Sen. Feinstein, this seems like a very bad move on the Pentagon's part, both politically and from a policy perspective.

The Congressional oversight power, though it can often be abused, is quite necessary in such situations, especially when the judiciary is likely to give considerable deference to the executive (as it in considerable measure does, though some think it should give still more deference). It seems to me that for the executive to block testimony before Congress that might shed light on how the system operates, and whether it has flaws that jeopardize both defendants' rights and the system's accuracy and efficiency as a warfighting tool, both looks bad and is bad.

Thanks to Victor Steinbok for the pointer.

Related Posts (on one page):

  1. Col. Davis' Rejoinder to Brig. Gen. Hartmann:
  2. Brig. Gen. Hartmann Responds to Col. Davis:
  3. Col. Davis and the Testimony that Wasn't:
  4. Pentagon Ordering Former Chief Prosecutor at Guantanamo Not To Appear Before the Senate Judiciary Committee?
  5. Colonel Davis Speaks Out:
Col. Davis and the Testimony that Wasn't:

As Eugene noted below, the Pentagon did not let Col. Morris Davis testify before the Senate about military commissions. As it turned out, the military sent Brigadier General Hartmann instead, and he was "not equipped to answer" some of the Senate Committee's questions, such as whether it would violate the Geneva Convention if Iran waterboarded a downed U.S. airman. Has it really come to this? More from Marty Lederman here.

Brig. Gen. Hartmann Responds to Col. Davis:

In today's Los Angeles Times, Air Force Brigadier General Thomas Hartmann responds to the recent op-ed by former Gitmo prosecutor Col. Morris Davis alleging that the military tribunal process was unfair and unduly politicized. My former colleague Amos Guiora finds Hartmann's essay unresponsive and unpersuasive.

Col. Davis' Rejoinder to Brig. Gen. Hartmann:

Col. Morris Davis once again takes to the pages of the Los Angeles Times, this time to reply to Brig. Gen. Thomas Hartmann's response to his criticisms of U.S. military tribunals for Gitmo detainees and his stated reasons for resigning as the chief Gitmo prosecutor.

Hartmann says the military commissions are consistent with an American military justice system that is the envy of the world. Apparently he's privy to some worldwide polling data I haven't seen, because it appears to me military commissions have created worldwide enmity, not envy. To overcome that, there must be two assurances from the highest levels: One, that evidence derived from waterboarding will not be introduced before a military commission, and two, that all reasonable efforts to keep the proceedings open to the media and other observers will be exhausted before closing any portion of any trial. That's the minimum American justice demands.

[Hat tip: Greg McNeal]

In related news, Brig. Gen. Hartmann's congressional testimony (which was delivered because the military denied the Senate's request for Col. Davis to appear) has prompted at least one Navy JAG to resign.