Politics at Guantanamo: The Former Chief Prosecutor Speaks

Politics at Guantanamo: The Former Chief Prosecutor Speaks

JURIST Guest Columnist Marc Falkoff of Northern Illinois University College of Law says the recent resignation of Guantanamo chief military prosecutor Col. Morris Davis and his remarkable public conversion from champion of the military commissions to one of their most devastating critics may finally signal to the American public that politics rather than principle reigns at the prison...


Last month, Colonel Morris Davis stepped down as chief prosecutor for the military commissions at Guantánamo, citing political interference with the independence of his office. The resignation was a remarkable development in Guantánamo’s embattled history, illuminating the degree to which politics rather than principle governs our notorious offshore prison.

Just sixteen months ago, the Supreme Court declared in Hamdan v. Rumsfeld that the military commissions, as initially created by President Bush, violated Common Article 3 of the Geneva Conventions because they were not “regularly constituted courts.” In response, the Administration chose not to try terrorism suspects either before a court martial or in the civilian justice system, where Omar Abdel Rahman and other accused terrorists have been successfully prosecuted. Instead, the Administration pushed the Military Commissions Act through a Republican-led Congress, breathing new life into a jerry-built military commissions system.

The results have been predictable. Although Guantánamo has been operating as a detention center for nearly six years, to date not a single trial has taken place for any of the 750-odd men who have been imprisoned there. Only three prisoners have been charged with crimes – and one of them, Australian David Hicks, pleaded guilty almost immediately in exchange for the promise of only eight-months’ further imprisonment, to be served in his home country. The remaining trials ground to a halt soon after, while military judges dithered over whether the commissions’ jurisdiction extended to all “enemy combatants” or only to “unlawful enemy combatants.” Although that issue has since been resolved, it presaged the host of legal squabbles that will inevitably arise as the military works out the kinks of its brand new justice system.

We already know, therefore, that the military commissions are a bad idea for those of us who want to see speedy justice at Guantánamo. But with the resignation of Colonel Davis as chief prosecutor, we are now learning that the military commissions – whatever their inherent flaws and virtues – have themselves been corrupted by politics. If Davis’s allegations are to be credited, then the commissions system is being manipulated by political actors in an improper, unethical and potentially illegal manner – a politicization of the Guantánamo justice system that echoes the U.S. Attorneys scandal.

According to Davis, for more than a year Pentagon officials have sought to influence his decisions about “who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution.” For example, speaking last week to the Wall Street Journal, he explained that in September 2006, Deputy Defense Secretary Gordon England discussed with him the “strategic political value” in charging some of the prisoners before the midterm elections. Similarly, in January 2007, Pentagon General Counsel William J. Haynes II (himself on the verge of being withdrawn as a nominee for the Fourth Circuit U.S. Court of Appeals because of his involvement with the infamous “torture memos”) telephoned Davis to prod him to charge David Hicks, apparently as a political accommodation to the Australian Prime Minister. Even after Haynes was advised that this interference was improper, he again called Davis, suggesting that he charge other prisoners at the same time to avoid the impression that the charges were “a political solution to the Hicks case.”

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