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Officer calls Sept. 11 cases tainted

Political intrusions and torture help sully the Pentagon's push to prosecute suspects, the ex-tribunal lawyer says.

June 05, 2008|Carol J. Williams | Times Staff Writer

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.

Hartmann, legal advisor to tribunal Convening Authority Susan J. Crawford, a former colleague of Vice President Dick Cheney, has said the admissibility of such evidence is up to the military trial judges.

Hartmann challenged Davis' authority to decide what evidence could be introduced at trial, pitting his senior rank against the fellow lawyer's judgment. That was the source of the "unlawful command influence" accusation that at least one judge has upheld.

Hartmann has been barred from acting as legal advisor to Crawford in the case of Salim Ahmed Hamdan, reportedly Osama bin Laden's former driver.

Davis resigned after political appointees at the Pentagon rejected his judgment on the choice of cases to be tried in the months leading up to this November's election, as well as his advice against building prosecutions on coerced and potentially unreliable confessions. Lawyers for the Sept. 11 defendants, who face the death penalty if convicted, have argued to their judge that Hartmann was even more adamant in dictating how and when the five should be tried, and thus should be excluded from this case.

Navy Capt. Keith J. Allred, the judge in the Hamdan case, cited the 2006 Military Commissions Act prohibition against a senior officer influencing "the exercise of professional judgment by trial counsel or defense counsel" in disqualifying Hartmann.

Davis, who will hang up his uniform at the end of this month and spend his last three months of service on leave, feels vindicated by Allred's decision. But he is baffled by Hartmann's refusal to step down from the 9/11 case.

"He's been found in a judicial process to have acted unlawfully. It's just a matter of common sense that you recuse yourself," Davis said of Hartmann.

"There's always been this mind-set that if we can knock a few of these [cases] off and just get the 9/11 suspects into the courtroom, whoever wins the election is not going to be able to stop it," he said.

Unabashed by Allred's ruling, Hartmann said on the eve of the arraignment: "I do not plan to recuse myself."

Lawyers for the 9/11 suspects have also appealed to the Court of Military Commission Review to halt today's arraignment "until the most rudimentary building blocks necessary to afford a defense are in place."

Some civilian lawyers on the defense team have not received security clearances that would allow them to meet the defendants for the first time. None of the military lawyers has experience in death penalty cases. And the government continues to deny defense lawyers access to a classified database containing evidence to be used against their clients.

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