GUANTANAMO BAY, CUBA — When Khalid Shaikh Mohammed and his alleged collaborators in the Sept. 11 terrorist attacks appear before the war crimes tribunal here today, ousted chief prosecutor Col. Morris D. Davis will not be celebrating.
Not because Davis has any doubt that the five men were the architects of the deadly terrorist attack. He hasn't.
Not because he shares the criticism of human rights observers and foreign allies that the process is unfair. He doesn't.
And not because he is bitter about being punished for speaking out against what he sees as political manipulation of the tribunal, being driven into early retirement and blacklisted for private-sector jobs for breaking ranks with the Pentagon. Remarkably, he isn't.
Davis, who has spent half of his life in the military justice system, still considers it "the most ethical process in the world." But the Pentagon's push to prosecute the so-called 9/11 Five is tainted, in his view, by political intrusions, illegal influence applied by more-senior officers and reliance on evidence obtained through coercion or torture.
That taint would cast doubt on the legitimacy of any convictions, Davis says.
Davis drew the wrath of many in the Pentagon hierarchy when he objected last fall to pressures from Bush administration political appointees to prosecute Mohammed, known in intelligence circles as KSM, ahead of other war crimes suspects whose cases were already researched and on whom vital evidence was declassified.
Unless the evidence prosecutors have against Mohammed and his codefendants is declassified, much of their prosecution will be conducted behind closed doors, depriving the American media and public of a clear view of the proceedings, he says.
"It's taken us two years to get the evidence declassified in the Khadr case," Davis said of the young Canadian detainee Omar Khadr, who is charged with murder, conspiracy and support for terrorism. "KSM is that times a thousand!"
Davis ran afoul of superiors, most visibly Air Force Brig. Gen. Thomas W. Hartmann, when he advised his prosecutors against relying on evidence obtained through waterboarding and other interrogation techniques that have been deemed coercive or tantamount to torture. The Pentagon has banned such techniques but has no policy on the use of confessions they've produced.
