Rigged Trials at Guantanamo

The Nation magazine reveals the former chief prosecutor for the prison’s military commissions says the Pentagon has foreclosed the possibility of acquittals.

AMY GOODMAN: The 9/11 trials for the six Guantanamo prisoners charged by the Pentagon last week with conspiracy to commit war crimes might have been rigged from the start to rule out the possibility of any acquittals, this according to the latest statements to The Nation magazine from Colonel Morris Davis, the former chief prosecutor for Guantanamo’s military commissions.

Colonel Davis recounted a 2005 meeting with the Bush administration-appointed Pentagon General Counsel William Haynes, who now oversees the prosecutions and the defense for the tribunal process. Haynes said, “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.”

Colonel Davis resigned from the military commissions in October 2007, saying the system had become “politicized” and he could no longer be effective. His latest statements to The Nation magazine offer the most pointed evidence of the military commission’s bias and undermine the Bush administration’s claims of ensuring fair trials for the accused.

The article is up on The Nation magazine’s website at thenation.com and is called “Gitmo Trials Rigged.” Documentary filmmaker and journalist Ross Tuttle broke the story, joining us now from Los Angeles, California for this Democracy Now! exclusive. We’re also joined here in our firehouse studio by international law expert and Harper’s magazine legal affairs contributor Scott Horton.

We welcome you both to Democracy Now! Ross Tuttle, let’s begin with you. Start from the beginning. What exactly did you learn?

ROSS TUTTLE: Well, I was researching a story, actually, on just a detainee who had been in Guantanamo, or has been in Guantanamo for quite some time. I decided to call the former prosecutor. He had been quite vocal about his opinions since resigning. Before, he had been a staunch advocate of the commissions, spoke at length, actually, in another op-ed, before he resigned, in June lauding the commissions. Then he resigned in October. And I thought I’d give him a call just to see what he’d say about the recent events with the charges in February that were announced and to get his opinion about whether there could be some fair trials. And that’s when he told me about this conversation that he had.

AMY GOODMAN: Explain exactly who he is and the conversation that he had.

ROSS TUTTLE: Well, Colonel Morris Davis is a former prosecutor for the military commissions overseeing all the prosecutions, essentially. And he told me, basically—when I asked him, I said, “Will these men get a fair trial?” He said, “Well, when I had a conversation with William Haynes,” who was—or who is the general counsel for the Department of Defense, who’s essentially the chief legal officer at the Department of Defense—he said, “When we discussed the Nuremberg trials”—and that’s when Morris said, “Well, Nuremberg trials, you know, there were some acquittals at the Nuremberg trials, and if indeed there are some acquittals in our situation here, at least that will lend some legitimacy to the process.” And that’s when he said Haynes looked at him, eyes got wide, and said, “We can’t have acquittals.” He said, “How can we explain holding these people for so long?” and “We have to have convictions.”

AMY GOODMAN: Explain exactly the position that Haynes occupies to make this opinion so significant.

ROSS TUTTLE: Well, at the time—I mean, at the time, Haynes was an adviser to the Secretary of Defense. Haynes’s formal role in regard to the commissions—I’m not exactly sure what it was. But what Davis told me is that he resigned the moment that, or a few hours after, Haynes was inserted above him in the chain of command for the commissions. Basically, Haynes will—at the time, when the defense and the prosecution both report to deputies within the Department of Defense, who then both report to William Haynes, as it stands now.

So once Haynes was inserted above him, Davis had a couple of concerns. Haynes has also been linked to some memos that have been dubbed “the torture memos,” or one in particular that was released in November 2002. It was a report that he wrote for Donald Rumsfeld, and it was advocating the use of aggressive interrogation techniques. And so, I think Davis said he was also concerned about that, about the fact that this individual who he didn’t see eye-to-eye with, as far as coerced testimony and evidence that was obtained through coercion—that was one problem for Davis. And the other was this bias.

AMY GOODMAN: Scott Horton, talk about what Colonel Davis said and about Haynes’s significance.

SCOTT HORTON: Well, let me first say something about Colonel Davis. He is a very highly respected figure within the JAG court. I think a number of people saw him as someone who was likely to emerge perhaps ultimately as the Judge Advocate General of the Air Force, certainly one of the handful of candidates likely to move forward. And he’s hardly some civil libertarian. In fact, his attitudes are extremely conservative. He’s a prosecutor. The friction he had previously with the Pentagon was essentially over the fact that he was chomping at the bit, ready to go forward with these prosecutions.

Now, I think this—the news that Ross has broken here is absolutely devastating to the Guantanamo military commissions process, because they have been trotted out by General Hartmann, if you looked at his interviews the last few days, as an effort to replicate Nuremberg and the Nuremberg proceedings. And remember, Justice Robert Jackson, who was responsible for organizing them, said very clearly, repeatedly, it’s important not only that justice be done here, but that these proceedings appear to be just. In fact, the appearance of justice was more important even than the underlying result in the proceedings.

AMY GOODMAN: In fact, there were some people in Nuremberg who were acquitted.

SCOTT HORTON: Three in the opening proceeding alone. There were quite a few people who were acquitted. And I think there was a broad perception around the world that those proceedings were fair, that the defendants had a full opportunity to defend themselves. And the US accomplished its principal objective in those proceedings, which was demonstrating to the world, but particularly to the audience at home and Germany and then later with the Pacific tribunals in Japan, the evil that had been done by these people who were put on trial. So it was effective because it was just and fair.