Gitmo Grievances

You might think that the case against Mohammed Al-Qahtani would be relatively straightforward. The military prosecutors' file on him included strong circumstantial evidence that he was sent to the United States to be the 20th hijacker in the September 11 attacks. In August 2001, Qahtani traveled to Orlando, Fla., from Dubai, using the airline that a number of the other hijackers had used around the same time—but he was turned back at the airport by border authorities. About the time Qahtani's plane touched down in Orlando, 9/11 ringleader Muhammad Atta's car was photographed entering the airport parking lot, presumably to pick him up. When U.S. troops nabbed him in Afghanistan after the start of the war and sent him to Guantánamo, the 29-year-old Saudi allegedly confessed. So why did the Pentagon abruptly dismiss the charges against Qahtani last week—and without explanation?

A clue may lie in the troubling account of Col. Morris Davis, the chief military prosecutor until last October. Colonel Davis thought he had the evidence to prosecute. But he was not willing to use Qahtani's alleged confessions because he knew from a Defense Department report and other official sources that the prisoner had been abused and degraded at the U.S. detention facility at Guantánamo Bay. To Davis's way of thinking, that sort of evidence wouldn't—and shouldn't—hold up in the trials of men who have claimed their innocence, as Qahtani does now. But Davis says that a superior officer disagreed. During dinner in a restaurant at Guantánamo Naval Base last August, Davis says, Brig. Gen. Thomas Hartmann, the recently appointed top legal adviser in the military-commissions office, upbraided him. "Who gave you the authority to decide what evidence is admissible?" Davis describes him as saying. (Hartmann denies to NEWSWEEK that he ever discussed coerced testimony with Davis.) Incensed at what he viewed as interference in prosecutorial matters, Davis quit two months later.

Davis is just one of several military prosecutors who have come to believe the Guantánamo tribunal process is deeply flawed. None of these men is a bleeding-heart type; they are spit-and-polish career officers. But in the past four years, at least five of them have quit their jobs or walked away from Gitmo cases because they believed their own integrity was being compromised. In interviews with NEWSWEEK, three former Guantánamo prosecutors voiced concerns about issues ranging from the use of tainted evidence or secret trials to improper micromanaging by political appointees. All three thought the commissions, ordered by President George W. Bush two months after the 9/11 attacks (and revised by Congress in the 2006 Military Commission Act), might never be viewed as credible. The controversy comes as yet another delay was announced last week in the first full-blown trial at Guantánamo, to be followed by trials for five "high value" detainees indicted last week who will face the death penalty.

The lawyers who have balked about the system don't agree with each other on every point. Though they overlapped at the commissions office, they worked on different cases and found in them different faults. But all have potentially jeopardized their careers because they had reached an ethics line they believed they couldn't cross. Their stories reveal a pride in both the legal principles they learned in law school and the military justice they practiced for years—a system based not just on fairness but, crucially, on the perception of it. Yet this may also be a story about how opinions have changed since the darkest, most fearful days in the wake of the worst attacks ever conducted by foreigners on American soil. It may be that American views on what is deemed to be just have shifted as the perception of the threat has changed.

Lt. Col. Robert Preston remembers feeling queasy about the commissions process just a few weeks after joining the prosecution team in September 2003. Preston had been an Air Force lawyer for nearly a decade when he was picked for the job. Two years earlier, when the Qaeda hijackers had struck, he was just starting a master's degree program in international and comparative law at George Washington University in the capital. Preston decided to focus on the legal procedures that might be used against the culprits—if they were ever caught. "I wrote my thesis on the particular issue of prosecution by military tribunal and how that could be done during a time of war," he told NEWSWEEK in his first sit-down interview since leaving the commissions office in 2004. With his international law degree and a year of experience overseas, Preston became the go-to guy when questions arose among the roughly 20 prosecutors about which treaties and conventions were binding on the United States—and what they say about due process for detainees.

From the start, Preston says, there was a gap between Defense Secretary Donald Rumsfeld's public portrayal of the Guantánamo detainees as the "worst of the worst" and the evidence contained in the files. Most of the detainees appeared to be low-level Qaeda and Taliban suspects whose prosecution for anything substantial would prove difficult. Preston, who now serves as the legal adviser to the LeMay Center at Maxwell-Gunter Air Force Base in Montgomery, Ala., also believed that defense challenges to the very legitimacy of the military trials had the potential to roil the commissions. Acting as defense attorney in a simulated Gitmo trial in November 2003, in front of a panel of outside experts, Preston raised the kind of procedural objections that would come to dog the prosecution in real cases (Hamdan v. Rumsfeld, for example). He says at least one expert in attendance dismissed his argument as unlikely to gain traction.