Guest Post: Moe Davis on closing Guantanamo

Guest Post by Col. Morris Davis

Obama or McCain will inherit some incredible challenges, including the detainees at Guantanamo Bay.  What happens to those cleared for release or transfer that no responsible country will take, how do we ensure those remaining in detention are truly enemy combatants that pose an on-going threat, and how do we prosecute those accused of war crimes?  We need sound solutions to revive our country’s reputation. 

My comments are limited to prosecuting war crimes.

President Bush authorized military commissions seven years ago, but only two trials, Hicks and Hamdan, are done.  These “worst of the worst” war criminals were sentenced to nine and five months, respectively.  A Virginia couple received harsher sentences for allowing their 16 year old son and his buddies to drink beer in their home; a crime, but hardly on par with war crimes.  A preliminary question is who warrants prosecution?  Is it the dupes and drivers like Hicks and Hamdan or those with a direct hand in attacks like KSM and Nashiri?  The new administration must choose where to set the culpability-accountability threshold. 

Guantanamo Bay was not the law-free zone the administration envisioned nor were military commissions as fast, easy, and secret as the trial of the Nazi saboteurs in 1942.  The effort to do it like FDR failed.  The Supreme Court struck down the President’s military commissions causing Congress to intervene before the 2006 midterm elections where Republicans risked losing control of the House and Senate.  Their rush to craft the Military Commissions Act resulted in a jurisdictional defect, bringing the commissions to a halt that required an appeal to a nonexistent appellate court in the summer of 2007.  It has not been fast or easy by any means.

Defense Secretary Gates said service members have an obligation to “throw a flag” to highlight problems.  Are his words reality or rhetoric?  I threw a flag when I resigned after being placed under the command of men who sanctioned evidence obtained by waterboarding.  Others threw flags of their own, including Brigadier General Zanetti, Deputy Commander at Gitmo, who testified that the Legal Advisor, Brigadier General Hartmann, executed a “spray and pray … charge everybody … let’s go … speed, speed, speed” strategy.  “Spray and pray” is a combat term: If you are pinned down you hold your weapon over your head, spray some bullets blindly, and hope a few hit the target.  Hartmann’s “spray and pray” strategy was to launch a wave of cases hoping to secure at least a few convictions soon to dissuade the next administration from pulling the plug.

The Defense Department removed Hartmann from his legal duties and reassigned him to a logistics job after three judges found he abandoned his impartial role and aligned himself with the prosecution.  Hartmann described his new role as “an elevation, a promotion,” but others see it as a face-saving maneuver.  Hartmann was a conundrum.  Firing him would acknowledge his impropriety and invalidate his “impartial” pretrial legal opinions, sending all of the cases (except Khadr, which predated Hartmann) back for a truly impartial legal review and a new decision on referral to trial, ending hope of building momentum during the current administration.  On the other hand, the so-called reassignment/promotion is disturbing.  You would expect DoD to clip Hartmann’s wings, not give him bigger ones, after three judges disqualified him.  Moving a cancer from your kidneys to your colon is not a cure, nor is moving Hartmann from one job to another within the same organization. Lieutenant Colonel Darrell Vandeveld resigned as a prosecutor saying his superiors prohibited him from turning over exculpatory evidence, denied reasonable defense requests, and refused to consider plea negotiations.  Media reports say Hartmann prepared talking points to discredit Vandeveld and asked him to undergo a mental evaluation.  I am not surprised by Vandeveld’s claims or Hartmann’s reaction.  Senator Barbara Boxer added a provision to a Defense bill years ago to curb abuse of mental evaluations as a means to harass and stigmatize whistleblowers.  The timing here – there was no concern for Vandeveld’s mental state until he refused to toe the party line – is troubling.  Vandeveld’s allegations and the apparent reprisal that followed warrant investigation.

What are a new administration’s options?

One, revamp and continue with military commissions.  I have detailed in other articles the problems that must be corrected, so I will not repeat them.  Assuming the problems are fixed, I question whether anything called a military commission can achieve credibility given the deep stain of the past seven years. 

Two, use courts-martial or federal courts.  This option makes sense in theory but perhaps not in reality.  Detainees were sent to Gitmo for intelligence collection, not law enforcement/criminal prosecution, purposes.  That makes comparison to terrorism cases tried in federal courts difficult.  The Military and Federal Rules of Evidence are almost identical, resulting in similar issues in either forum.  Things like speedy trial, no rights advisements, minimal chains of custody, and coercive interrogation techniques are problematic if not fatal.  Some argue Congress can amend Title 10 or 18 to account for these circumstances, but the result would be something akin to the MCA, a change in form but not substance.

Three, create a national security court.  Guiora, Katyal, Goldsmith, and Wittes advance this argument.  If this is the right choice I would use both federal and military judges and practitioners, and use the federal and military criminal codes and procedures, and parts of the MCA and CIPA, to create rules and procedures.  Some say “war” is misplaced in “war on terrorism,” but I believe the current state of affairs is closer to armed conflict than ordinary criminal activity.  The military – judges, attorneys, and jurors – earned high marks for their efforts to do justice despite the limitations of the system forced upon them.  A combined federal and military effort offers the benefits of a range of civilian and military perspectives. 

Both candidates say they intend to close Gitmo.  Okay … but then what?  I want to hear some specifics before November 4th.