“Justice will only exist where those not affected by injustice are filled with the same amount of indignation as those offended” – Plato

I am considerably bothered by the recent conviction of Salim Hamdan by the military tribunal in Guantanamo Bay. The tribunal found Mr. Hamdan guilty of material support of Al Qaeda by working as Osama bin Laden’s driver in Afghanistan where Mr. Hamdan was captured in 2001. He’s been sitting in Guantanamo Bay’s prison for the past 6 years and has finally had his day in court — where, predictably, he was found guilty. Why predictably? Well it all goes down to the testimony of the former chief prosecutor for these commission trials – Air Force Colonel Morris Davis.

During the trial of Mr. Hamdan, Col. Davis acted as a witness for the defense. Col. Davis noted significant flaws in the whole process as well as potential impropriety. One of the most scathing accusations is his testimony of a meeting between himself and Department of Defense General Counsel William Haynes when Col. Davis interviewed for the Chief Prosecutor position in August of 2005. During the interview Col. Davis told Mr. Haynes that

the military commission trials “are historic. These trials will be the Nuremburg of our time. If there are some acquittals that would perhaps not be a bad thing.” Col. Davis says Mr. Haynes became visibly agitated at the mention of acquittals and stated: “We can’t have acquittals. We’ve been holding these guys for years. We can’t have acquittals. We’ve got to have convictions.”

(“Salim Ahmed Hamdan and Col. Morris Davis v. Military Commission System“, American Constitution Society for Law and Policy Blog, April 28, 2008 )

Col. Davis also wrote an editorial in the Los Angeles Times back in December of 2007 in which he noted that the Convening Authority, a political appointee with no equivalent in the civilian court system here in the U.S. and who is supposed to be objective, was actually showing partiality to the prosecution. The convening authority makes many important decisions during the tribunal process such as which charges filed by the prosecution go to trial and which are dismissed, choosing who serves on the jury, and deciding whether to approve requests for experts and reassessing findings of guilt and sentences. (Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007) In the case of the military tribunals at Guantanamo Bay, Col. Davis wrote in his editorial that Major General John Altenburg, acting as the convening authority, kept his distance from the prosecution to preserve the authority’s impartiality. However, Susan Crawford, who was appointed by the Secretary of Defense to replace Maj. Gen. Altenburg,

had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things

(Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007)

Col. Davis lists out other reasons for his resignation as the Chief Prosecutor at the military tribunals in Guantanamo Bay. These include the fact that the trials were being held behind closed doors and noted that “even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors,” “Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent,” and that “transparency is critical.” (Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007). Finally, Col. Davis cites the fact that he was placed in a chain of command under Department of Defense General Counsel William J. Haynes who is controversial for the fact that he authorized the use of the aggressive interrogation techniques that could be considered torture. Col. Davis notes

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor’s office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes’ place in my chain of command.

(Morris, Davis, “AWOL Military Justice“, The Los Angeles Times, December 10, 2007)

I don’t question that Mr. Hamdan was Osama bin Laden’s driver in Afghanist. But the experience of Col. Davis and how the administration found significant political value in the military tribunals makes me question their impartiality and the possiblity of true justice being served.

Not only were administration officials concerned about winning convictions, but according to Col. Davis, various officials also saw political value in filing charges before the mid-term and presidential elections. At a meeting in September 2006, Col. Davis says Deputy Secretary of Defense Gordon England told him that “there could be some really strong political value in charging some of the high value detainees before the election.”

(“Salim Ahmed Hamdan and Col. Morris Davis v. Military Commission System“, American Constitution Society for Law and Policy Blog, April 28, 2008 )

Mr. Hamdan was found guilty of the lesser charge material support of terrorism or a terrorist organization and the jury sentenced him to 66 months. With credit for time served he could be released before the end of this year. However, NPR’s John McChesney reported that despite the fact that Mr. Hamdan will have served his time in prison by the end of this year, the government may still decide to continue to hold him. (“U.S. Could Continue Holding bin Laden Driver“, NPR, August 8 2008 ) To do this the government would simply classify him as an enemy combatant. If that were to happen then justice in this country will have received a terrible blow. Our system is based on the concept that once a prisoner has served his sentence then for what he was convicted they are entitled to be set free. They have, in essence, paid their debt. But to continue holding someone in prison for an indeterminate time after their punishment has been completed could be a violation of their human rights as well as our own Constitution’s injunction on cruel and unusual punishment. This process will end up bringing us down to the level of the China or Myanmar in terms of human rights abuse and will result in significant loss of our moral authority. We must make sure that Justice, not just for Mr. Hamdan but for all those undergoing trial in Guantanamo Bay, is delivered fairly and impartially. Remember, Justice is supposed to be blind.