Gitmo Grievances

Preston also worried that the prosecution team was understaffed. During a visit to the Department of Justice, where lawyers were working on a parallel investigation of the September 11 Pentagon attack, Preston was awed by the size and scope of the operation. He says the administrative staff alone was bigger than the commissions' entire prosecuting team. "They had physical pieces of the Pentagon and forensic evidence," says Preston. "They had all this stuff and no one in custody. We had a bunch of people we were detaining and none of this." Though their efforts overlapped, Preston says it was clear the Justice Department's investigation was a "separate and independent venture" that included no flow of information or resources to the commissions office.

Preston and a colleague in the commissions office at the time, Capt. John Carr, raised their concerns with the chief prosecutor, Col. Fred Borch. Preston says Borch acknowledged problems with the system but had a stock answer to convey his faith that the commissions office would eventually get more resources: "If we build it, they will come." (Borch and Carr declined to be quoted for this article.) By March 2004, their frustration had peaked. Preston, Carr and a third prosecutor, Capt. Carrie Wolf, all wrote e-mails spelling out their complaints. (Wolf could not be reached for comment.) Though these messages reflect some of the personal disputes that had been brewing in the office, they also include some disturbing allegations. Wolf and Carr both wrote that Borch told them not to worry much about the defense because (as Carr e-mailed) "the military panel will be handpicked and will not acquit these detainees." Carr described hearing secondhand from FBI agents that detainees had been abused in Afghanistan (the e-mail preceded reports about abuse at Abu Ghraib Prison in Iraq by a few weeks). Preston wrote that the military-commissions process was "wrongly managed, wrongly focused and a blight on the reputation of the armed forces." The scandal became known in the office as the Ides of March and touched off an internal Pentagon investigation (which found no criminal wrongdoing). Within weeks, all three lawyers accepted assignments elsewhere.

Another prosecutor at the commissions office at the time, Lt. Col. Stuart Couch, says his Ides colleagues were wrong to suggest that the commissions might have been rigged. "We had no indication that the jurors would be selected to reach some preordained verdict," he tells NEWSWEEK. BUT Couch, now an appellate judge at the Navy-Marine Corps Court of Criminal Appeals in Washington, D.C., had his own issues with the process. At least twice, he says, he was given files of detainees who had been abused by their interrogators, putting him in an impossible bind. On the one hand, Couch says, prosecutors were asked to prepare full and fair trials for the detainees. On the other hand, abusive interrogations were producing evidence he thought shouldn't be used and might not stand up in court.

Couch had been a Marine pilot before he went to law school and was buddies with fellow corpsman Michael Horrocks, who had copiloted United Airlines 175, the second plane to hit the World Trade Center on September 11. That personal connection to the attacks boosted his motivation to prosecute members of Al Qaeda. But a visit to Guantánamo in 2003 gave him pause. Couch says he was watching a conventional interrogation of one of his detainees through a two-way mirror when he heard loud music from a cell down the hall. Through an open door, he caught a glimpse of another detainee shackled to the floor, rocking back and forth while a strobe light blinked in his cell.

In an interview with The Wall Street Journal more than a year ago, Couch recounted his involvement in the case of Mohamedou Ould Slahi, a Gitmo prisoner who is suspected of having helped assemble the Hamburg cell that included three of the 9/11 hijacker pilots. Couch worked on the Slahi case for nine months, suspecting at some point that a stream of information the detainee had suddenly provided was the result of abuse by interrogators. Conducting his own backdoor investigation, Couch learned that Slahi had been abused at Guantánamo and that little evidence existed beyond his confessions. Reluctantly, he decided to quit the case. About the commissions, Couch now says: "We lost what little bit of credibility that might have been there. And I'm not sure we can salvage it."

Davis, the former chief prosecutor, says the fate of the commissions hinges on the willingness of higher-ups like Hartmann to leave the prosecution alone to do its work. In two years at the commissions office, Davis says he repeatedly fended off pressure from political appointees. Earlier this month, in one of the stranger episodes to have played out in a Guantánamo courtroom, Davis testified on behalf of the defense for Salim Ahmed Hamdan, whose lawyers accused Hartmann of involving himself unlawfully in prosecutorial matters. His testimony prompted a critical ruling against Hartmann, who was ordered to back off the Hamdan case. The judge in the case, Capt. Keith Allred, said in his decision that he found Davis's allegations to be true—among them that Hartmann had pushed for the prosecution of "sexy" cases, including detainees with blood on their hands.