Disorder In the Court

By the time he quit, Col. Morris Davis had endured more than his share of abuse. As chief Guantánamo Bay prosecutor for the past two years, he suffered a crushing Supreme Court defeat and a series of smaller setbacks in the quest to bring terrorist suspects to trial in military commissions. His own Pentagon boss, Defense Secretary Robert Gates, spoke out in favor of shutting the detention facility in Cuba even as Davis was extolling its virtues in a Yale Law Journal article titled "In Defense of Guantánamo Bay." Rights groups routinely accused him of partaking in a legal system that tramples due process. And last week, as he prepared charges against more prisoners, Davis lost a turf battle with a superior officer. "I may not be here much longer," he told NEWSWEEK on Thursday, a day before submitting his letter of resignation to the Office of Military Commissions.

The spat is the latest sign of disarray in a legal system that critics say is close to dysfunctional. In the six years since the military commissions were established by presidential decree, just one detainee has been convicted (Australian David Hicks, last March) and only after a plea deal that guaranteed his freedom by the end of this year; two other cases have been hung up in procedural wrangling. Davis wanted to try about 80 of the 330 prisoners held at Guantánamo. He told NEWSWEEK at least six new cases would be referred to the commission in the coming weeks, possibly including that of 9/11 mastermind Khalid Sheikh Mohammed. But Mohammed's trial is sure to produce more legal scuffling—this time regarding the admissibility of evidence obtained through alleged torture. The other cases could go on for years. "This is what happens when you try to start a justice system from scratch," says Lt. Cmdr. William Kuebler, an OMC defense lawyer.

The commissions were supposed to help the Bush administration win convictions against suspects rounded up after the 9/11 attacks by lowering standards of evidence and allowing such court no-nos as hearsay. Kuebler, who represents Gitmo detainee Omar Khadr, says the administration had another objective: to obscure the CIA's "special interrogation methods." Khadr was arrested at 15 for allegedly killing a U.S. soldier in an Afghanistan battle. A Canadian citizen, Khadr told Amnesty International through his lawyers that he was subjected to torture during interrogations in Afghanistan and later at Guantánamo, including beatings and painful shackling. (A CIA spokesman said in response: "The United States does not conduct or condone torture.") Under existing law, any information gleaned through the use of torture is inadmissible in all courts, including the military commissions. But the commissions are allowed to consider evidence obtained through the use of coercion—although the distinction between coercion and torture is still a matter of debate. "You have a procedure that essentially launders the interrogation system," says Kuebler.

Davis said the existing courts would not have worked for Guantánamo detainees, whose captures did not include the trappings of traditional arrests: the advisement of rights, the tagging of evidence and a paper trail showing custody transfers. He said Gitmo prisoners are accorded more legal privileges than the United States offered Nazis at the Nuremberg trials, including the right to appeal. He also said the cases he was preparing against Mohammed and 14 other "high-value detainees" transferred to Guantánamo from secret CIA detention facilities earlier this year will not rely solely on confessions. To avoid an argument over admissibility, Davis had tried to build some cases without using the interrogation log at all. "There are some instances where we can prove the charges beyond a reasonable doubt without using anything that the individual ever said or anything derived from what he said."

But that approach further slowed the process. To ensure the trials could be open to the press, Davis had set about declassifying a trove of documents, sometimes requiring approval from multiple intelligence agencies. The sluggish pace appears to have irked Davis's superior officer, Brig. Gen. Thomas Hartmann, the legal adviser to the administrator overseeing the trials. Davis said Hartmann pushed for quicker indictments and might have been negotiating more plea bargains behind his back—possibly with Osama bin Laden's driver, Salim Ahmed Hamdan, whose Supreme Court appeal last year roiled the military commissions process. In a formal complaint to the Pentagon inspector general, Davis charged Hartmann with interfering directly in cases. (A Pentagon spokesman denied NEWSWEEK's request to interview Hartmann but said an internal investigation had ruled in the general's favor.) Now that Davis is out, a successor might be hard to find. Already, two chief prosecutors have come and gone since 2004. As job listings go, this one will have AVOID stamped all over it.