Guest Post:  Colonel Morris Davis

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Morris Davis:  KSM Gets His Way at Guantanamo

 

A military guard will be on each arm of Khalid Sheikh Mohammed as he is led into a courtroom on Saturday to be arraigned for a second time before a military commission at Guantanamo Bay. He went through the same process in the same courtroom on nearly the same charges almost four years ago in the closing months of the Bush administration. The fact that President Obama chooses now, six months before voters choose between him and Mitt Romney, to restart what some have dubbed “the trial of the century,” using a second-rate system of justice he had ordered stopped at a facility he had ordered closed, makes an unflattering statement about the timidity of his leadership and the malleability of his principles.

Apologists for the tarnished military commissions, like Attorney General Eric Holder and the sixth and current chief prosecutor Brigadier General Mark Martins, acknowledge that our regular federal courts are best suited for terrorism trials. Holder told an audience at Northwestern University in March:

Simply put, since 9/11, hundreds of individuals have been convicted of terrorism or terrorism-related offenses in Article III courts and are now serving long sentences in federal prison. Not one has ever escaped custody. No judicial district has suffered any kind of retaliatory attack. These are facts, not opinions. There are not two sides to this story. Those who claim that our federal courts are incapable of handling terrorism cases are not registering a dissenting opinion – they are simply wrong.

After singing the praises of the federal courts – which really have been swift, severe and successful in comparison to the six and-a-half dubious trials completed over the past decade at Guantanamo – Martins and Holder pivot to polishing the image of the tarnished military commissions they argue are well-suited for a small category of cases. Martins told an audience at Harvard in April:

It is perfectly reasonable to ask why – with concurrent jurisdiction over offenses that can be characterized as both federal civilian crimes and violations of the law of war and with comparable procedural protections – we should invest great energy and resources in military trials. The answer is that there is a narrow but important category of cases in which the pragmatic and principled choice among the lawful tools available to protect our people and serve the interests of justice is a reformed military commission.

Beltway bureaucrats are prone to using buzzwords to shade the truth. For example, rather than saying “yes, it makes us look bad when we lock people away in prison for a decade without a trial,” some might soften it up by using more subtle Beltway language: “The optics are not optimal.” The word “pragmatic” has become a favorite of the spinmeisters. In truth, being pragmatic has become a synonym for being a wuss. When a bureaucrat capitulates instead of confronting barriers standing in the way of doing the right thing, and then cites the barriers as an excuse for choosing the easier path, he is lauded for making the “pragmatic choice.” Others might say he simply wussed out. President Obama has been “pragmatic” far too often on national security choices in his first three years in office.

There is nothing pragmatic or principled about undermining America’s reputation as a champion of the rule of law and a supposed model for the world to follow. The apologists for Obama’s decision to embrace military commissions call attention to similarities between the commission rules and the rules in federal courts, and they claim those rules are essentially the same. They argue that the two systems are virtually identical and that trial observers will find trials in the two forums nearly indistinguishable. In some things, however, close is just not good enough. An O’Doul’s looks like a beer and has a beer-like flavor, but a real beer drinker would never argue that an O’Doul’s is virtually indistinguishable from a Sam Adams. Just as a near-beer is not practically the same as a real beer, neither is near-justice the equivalent of real justice. The apologists may think they are fooling the rest of the world when they say at long last military commissions do real justice, but they are wrong.

Holder and Martins justify the need for a second-rate military commission system by talking up the alleged realities of the battlefield that they say make it impracticable for troops to worry about doing rights advisements and establishing a chain of custody for evidence while in the midst of a war. Their general principle is entirely valid … but also totally irrelevant in the cases they intend to prosecute before military commissions. Few of the 779 men ever held at Guantanamo were captured by members of the U.S. armed forces and even fewer still were apprehended on the battlefield as that term is commonly understood by ordinary human beings. Khalid Sheikh Mohammed, for instance, was rousted from a sound sleep and arrested in Rawalpindi, Pakistan, by the Pakistani Inter-Services Intelligence Directorate based on information developed by our civilian Central Intelligence Agency. Abd al Rahim al Nashiri, the alleged USS Cole bomber, was apprehended in Dubai, a bustling global business center in the United Arab Emirates that no one considers a battlefield. Hambali was arrested near Bangkok, Thailand, by Thai authorities and later turned over to the CIA. The truth is that not a single one of the 14 so-called high-value detainees was captured by members of the U.S. armed forces on a battlefield; in fact, none were even apprehended in Afghanistan. The perception of some inexperienced 19-year-old Army private trying to read Miranda rights to a captured al Qaeda fighter while hunkered down in a foxhole with bombs exploding nearby and bullets whizzing past overhead is a canard.

Military commission apologists should have the integrity to stand up and tell the public the truth about the small category of cases they believe are best-suited for the second-rate procedures of the tarnished military commissions. The truth is the reason the apologists want a second-rate military commission option is because of what we did to the detainees, not because of what the detainees did to us. This is not about the exigencies of the battlefield and the problems our soldiers face trying to fight a war; this is about torture, coercion, rendition and a decade or more in confinement without an opportunity to confront the evidence – abuses that would have us up in arms if done to an American citizen by some other country – that make the tarnished military commissions uniquely suited to try and accommodate the small category of cases where we crossed over to the dark side. A military commission may be a justice-themed theatrical production – complete with a script, actors, a sound stage and costumes that create a passable courtroom-like atmosphere – but beneath that facade is a ‘heads we win, tails you lose’ charade where, as the government admits, even if a KSM or a Nashiri is found not guilty he returns to a cell to continue serving what is likely a life sentence. That should not inspire anyone to wave the flag and shout USA! USA! in celebration of our vaunted exceptionalism.

Lloyd Cutler was the youngest member of the prosecution team in the trial of eight Nazi saboteurs captured, convicted by a military commission and executed in a span of six weeks in the summer of 1942. He wrote an op-ed in the Wall Street Journal on December 31, 2001, nearly 60 years after his military commission experience ended and 10 days before the first detainees arrived at Guantanamo Bay. Mr. Cutler said that how we prosecute alleged al Qaeda terrorists will say as much about us as it does about al Qaeda. He warned that success will be judged by our ability to show the world that justice is in fact being done.

Had we heeded Mr. Cutler’s advice back in 2001 we would not be where we are now in 2012, fumbling along more than a decade later still trying to mold a second-rate process to fit around sets of bad facts we created when we turned our backs on the law and our values. In normal practice, cases are developed to conform to the court. Here, because of how we mistreated some of the detainees, we are trying to develop a court to conform to the cases. We are setting an example for the world, but not a good one.

Morris Davis was chief prosecutor for the military commission at Guantanamo Bay, Cuba, from 2005-2007. He is a retired U.S. Air Force colonel and a member of the faculty at the Howard University School of Law in Washington, D.C.

27 Thoughts to “Morris Davis: KSM Gets His Way at Guantanamo”

  1. This picture might have to come down soon. I can’t stand looking at that nasty, gnarly lice-infested beard too much longer.

    Moe, I think I will put your picture up instead.

  2. Elena

    We are a nation of laws, inconvenient as that might be sometimes, we either address how we don’t like our laws and change them, or we follow them.

    I have always felt very uncomfortable with the idea that we were a nation that tortured and I haven’t changed my opinion. Even with the most disgusting of human beings, they don’t deserve to have the united states forgoe our moral compass.

    in the words of a great broadcaster “We don’t EFFING torture!” (thanks Shep!)

  3. kelly_3406

    I do not follow your arguments against military commissions/tribunals.

    Military commissions have been used at least since the Civil War to try enemy combatants, whether they were captured by the military or not. For example, German saboteurs were captured during WWII in New York and Chicago. FDR stated that the eight Nazis had no right to a civilian trial and appointed a military commission, which eventually imposed the death penalty on the eight. Commissions were also used to try WWII war criminals after all hostilities had ended. So there has been no historic presumption that trials by military commission were unfair or sub-standard.

    I tend to favor a military commission to try KSM in order to avoid the precedent that military commissions are no longer appropriate. What has changed that makes military commissions/tribunals unacceptable for the present conflict or the present circumstance? Do you think military commissions are no longer acceptable in general or just in this case? If there is a problem with military commissions, can they be fixed or do you think they have to be ditched altogether?

  4. Starryflights

    The chief prosecutor, Army Brigadier General Mark Martins, acknowledged in a speech at Harvard University last month that earlier versions were flawed.

    “That is not where we are any more,” he said. “While appreciating the criticisms and concerns, we believe that these reformed military commissions are fair and that they serve an important role in the armed conflict against al Qaeda and associated forces.”

    http://www.reuters.com/article/2012/05/03/us-usa-guantanamo-idUSBRE8420TL20120503

  5. Morris Davis

    Kelly – Notice that when it talks about military commissions it uses “versions” with an “s.” Since military commissions were first authorized by President Bush in November 2001, they’ve been reformed again and again and again, and each time we’ve said this time we’ve got it right. The credibility of that claim expired some time ago. Notice, too that the chief prosecutor says military commissions serve an important role in the armed conflict against AQ. Okay, what is it? The argument proponents normally make is the one AG Holder made last month in a talk at Northwestern University:

    “A key difference is that, in military commissions, evidentiary rules reflect the realities of the battlefield and of conducting investigations in a war zone. For example, statements may be admissible even in the absence of Miranda warnings, because we cannot expect military personnel to administer warnings to an enemy captured in battle.” http://www.justice.gov/iso/opa/ag/speeches/2012/ag-speech-1203051.html

    Or, as BG Martins said in a talk to the American Bar Association in December (I’d give you the link but it would put me over the limit and into moderation … you can Google it), military commission rules “take into account the particular challenges of gathering evidence during military operations overseas.”

    It’s hard to argue with what AG Holder or BG Martins say about the unique challenges our military personnel face out on the battlefield. As right as those points are, they’re also totally irrelevant. KSM wasn’t captured by the U.S. military on a battlefield. He was asleep at a house in Rawalpindi, Pakistan, in March 2003 when the Pakistani ISI woke him up, arrested him, and then turned him over to the CIA. Likewise, none of the four others charged along with KSM was (1) captured by the U.S. military or (2) on a battlefield. The fact is none of them were captured in Afghanistan and none of them were captured by members of the U.S. military.

  6. Emma

    As you are a former chief prosecutor at GITMO, I assume you must have to submit your opinion pieces to some sort of publication review?

  7. Colonel Davis resigned his commission. He is a civilian, like you or I are.

  8. Morris Davis

    Emma :
    As you are a former chief prosecutor at GITMO, I assume you must have to submit your opinion pieces to some sort of publication review?

    I did. My wife thought a word I used was over the line, so I changed it to wuss. With that change it passed review.

  9. Blue

    Col. Davis. It seems to me that the criminal-justice system is tailored to address ordinary crimes committed in the US in peacetime. As such, it properly – or at least we like to think it favors the defendant. It is not designed to neutralize wartime enemies. Do you view KSM as a combatant or as an extra-ordinary criminal?

  10. Morris Davis

    Blue – Our ordinary courts have been very effective in handling significant cases, including terrorism cases. Timothy McVeigh killed about 170 people and injured another 800 when he bombed the federal building in Oklahoma City and his case was prosecuted successfully in federal court. Federal courts were used successful to prosecute the men who bombed the World Trade Center in 1994 killing 6 and injuring 1,000. Among those convicted was KSM’s nephew, Ramzi Yousef who is doing life in federal prison. We’ve also prosecuted and convicted the East Africa Embassy bombers, the shoe bomber and the underwear bomber. In the decade-plus that we’re tried to use military commissions at Gitmo, where we’ve completed 6 trials (2 of the 6 (Hicks and Hamdan) are free men back in their home countries and Omar Khadr is likely to be sent home to Canada in the next month or so), we’ve done hundreds of terrorism trials in federal courts. You may have read this week where the guy who plotted to bomb the NYC subway system was found guilty in federal court in NYC … and it didn’t take a decade to get it done. So, we’ve got about 30 guys at Gitmo the administration wants to prosecute in a military commission. They’re guys that have been in our custody 6-11 years and for a time, mainly from 2002-2004, they were mistreated. We didn’t consider military commissions in the Korean War, Vietnam War or the First Gulf War. We aren’t planning to use military commissions for anyone that was captured in the past 5 or 6 years since we stopped mistreating detainees. So, when proponents talk about being at war and the exigencies of the battlefield it has nothing to do with these cases. All of the high value detainees were arrested by the domestic authorities of the countries where they were at the time, so none were captured by our troops, none were captured on a battlefield, and none were even captured in Afghanistan. The proponents arguing for military commissions should, in my view, be honest about why they believe that’s the forum we should use and they should stop creating a false and misleading perception. Also, prosecution of war crimes is not intended to neutralize the enemy so they can’t return to the battlefield, it is to punish war criminals. Neutralizing the enemy and punishing war criminals are separate issues.

  11. Cato the Elder

    Credit where credit is due – Col. Davis consistently stands for rule of law. If we stand by and allow a flawed process to be applied to “others” it’s only a matter of time before that same flawed process is applied to us, no matter how despicable and repugnant we may find those “others” to be.

  12. Blue

    Its a complicated issue, I will give you that and I really do appreciate your response. Its also a passionate issue for many, from the utility of a trial, the 6th Amendment to the politics of why Obama chose to reverse himself on this. I don’t think fairness or process is the issue anymore (is it) as much as it is about the precedent it sets for expanding the kinds of “crimes” and who can come before a military tribunal.

    I view KSM as a combatant – on or off the direct battlefield he was a (the) general commanding. It was a military operation from his and from our perspective and he is now in a highly secure military base in the custody of the military. Indeed, he has been held to date as an unlawful enemy combatant. I also think that in this case, with all the “tons’ (as you are quoted) of evidence against him, a military trial may be better able to handle the mirade of security and inteligence issues involved. I understandf the need for transparancy and access and I understand the desire to treat KSM as a civilian, but in this case I think (OMG I cannot believe I am going to say this) we need to trust the Government.

  13. Morris Davis

    Cato – Thanks!

    Blue – “Unlawful enemy combatant” (changed now to “unprivileged enemy belligerent”) is a term you won’t find anywhere in the Geneva Conventions. It’s a term the administration chose to try and exempt the detainees from having rights and us from having legal obligations. Timothy McVeigh considered himself a warrior who, like KSM, engaged in indiscriminate terror in an effort to bring down the government. Since we had not done a military commission since WW II, the current effort meant having to cobble together rules and procedures. The process for dealing with classified information is modeled on the Classified Information Procedures Act (CIPA) that is used regularly in the federal courts. In my view, we started down the military commission path because a few political appointees who never served a day in uniform saw the Quirin case back in 1942 and thought military commissions would be swift, secret and severe … they have been the exact opposite. Once it became apparent this was not working it became a matter of vindicating the proponents and that devolved into pure politics. So, this isn’t about justice or security or necessity or having no other choices, it’s about politics. In the end, KSM will be convicted (as he wants) and sentenced to death (as he wants) and a lot of people will pat themselves on the back and talk about how exceptional we were to bring KSM to justice. Then, as Cato notes, it’s a matter of time until doing a belly-flop on this slippery slope bites us in the butt.

  14. Morris Davis

    I wish I had thought of this analogy to the “reformed” military commissions:

    “You can take a $5 mule and put a $10,000 saddle on it and call it reformed,” said Commander Walter Ruiz, a military lawyer for al-Hawsawi. “You still have a $5 mule. It just has a fancy saddle.”

    http://www.guardian.co.uk/world/2012/may/04/khalid-sheikh-mohammed-military-prosecutor

  15. kelly_3406

    I do not see a reason that the military cannot ensure a fair trial. Military commissions have been good enough for the last 100 years, so it is incumbent for critics to provide a compelling reason why commissions cannot be used. Here are several reasons why I think they should:
    1) Cost: the cost of security and the inconvenience to the community where the federal trial would be held is tremendous. I see no reason why taxpayers should be liable for these huge costs when the military could do an acceptable job at Gitmo.
    2) Unacceptable precedent: If military commissions are deemed unacceptable for KSM, then they will eventually become unacceptable for other illegal combatants/war criminals. Illegal combatants should be tried by military commissions during wartime as a matter of course.
    3) Sober consideration of the evidence: Military officers will likely consider the facts coolly and unemotionally and arrive at a just verdict. It is less likely that there will be an outrageous verdict like we see in federal court from time to time.

  16. Morris Davis

    Kelly – Military commissions go back to George Washington and the trial of Major Andre, a British spy who conspired with Benedict Arnold during the Revolution. From Washington’s time until the trial of the Nazi saboteurs in 1942, military commissions (and we did hundreds of them in that period) followed the same rules as courts-martial. It wasn’t until FDR and WW II that military commissions adopted a lesser standard of justice … and then we didn’t use them again for more than a half-century. David Glazier, a law professor and retired Navy officer (former commander of the USS George Philip) submitted an affidavit in support of the ACLU’s motion (link below) for an open trial in the 9/11 case based on his review of more than 1,200 military commissions. You can read his account of the Quirin case. We can and probably will proceed with this military commission, but it is a pragmatic choice applying the definition of “pragmatic” I used in the article.

    https://www.aclu.org/files/assets/aclu_motion_for_public_access_5_2_12.pdf

  17. At least we wouldn’t see this circus at a military tribunal.

    http://www.thegatewaypundit.com/2012/05/9-11-terrorist-attorney-calls-for-women-to-respect-defendants-wear-hijabs-in-court/

    The defense attorney who wore a traditional Islamic outfit during the rowdy arraignment of the accused Sept. 11 terrorists is defending her courtroom appeal that other women in the room wear more “appropriate” clothing to the proceedings — out of respect for her client’s Muslim beliefs.

    Cheryl Bormann, counsel for defendant Walid bin Attash, attended the arraignment Saturday dressed in a hijab, apparently because her client insisted on it. She further requested that the court order other women to follow that example so that the defendants do not have to avert their eyes “for fear of committing a sin under their faith.”

  18. Yes.

    But let’s ask Morris.

  19. Morris Davis

    I don’t recall meeting Ms. Bormann during my tenure as chief prosecutor. At the press conference held Sunday before they departed Gitmo, she acknowledged she’d received some death threats but said it came with the territory when you do death penalty level defense work. If you look at the comments posted at the end of the article Cargo linked you’ll see some of the “patriots” are upset with Ms. Bormann. The same thing happened when John Adams defended the British soldiers who shot and killed 5 men in what became known as the Boston Massacre, which put Adams’s reputation and the welfare of his family at risk. He wrote that if his efforts prevented the British soliders from becoming a “victim of tyrrany, or of ignorance” then that would be “sufficient consolation to me for the contempt of all mankind.” Of course he went on to become George Washington’s Vice-President before he was out second President. In any event, 242 years after the Boston Massacre trial we seem to be just as prone to the influences of tyranny and ignorance.

  20. @Morris Davis
    But, would a military court let the case become the circus it is now?

  21. Morris Davis

    @Cargosquid

    Cargo – This was a military (an Article I – Title 10) court with an O-6 military judge presiding. One of the main reasons it is such a circus is that, unlike federal court or a court-martial, there are no clear rules and precedence governing the proceedings.

  22. Then that judge needs to start holding people in contempt or removing the defendents until they behave.

  23. Just had a thought…. KSM confessed. Take it at face value and lock him up.

  24. George S. Harris

    Yes Cargo, KSM “confessed” after being water boarded 183 times, which, according to George Bush was not torture.

    Also, perhaps the biggest reason these cases are not tried in a civilian court now is that most, if not all of the evidence was gathered after detainees were tortured. But I suppose if George Bush was the presiding judge, it would be admitted since he says they weren’t tortured. As Moe has pointed out, this whole thing is now political, it has nothing whatsoever to do with justice as we might traditionally think of it–at least most of us that is.

  25. @George S. Harris

    So…. we know that KSM is a terrorist. But we should let him go free if we can’t use any evidence to “convict” him. So, what do you suggest we do, then?

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