Last Tuesday, I attended a continuing legal education (CLE) session presented by Col. Morris D. Davis, the Air Force officer who’s in charge of the prosecutions of 10 of the 490 detainees now held at the U.S. base in Guantanamo Bay, Cuba.
Col. Davis spoke in the moot courtroom of Case Western Reserve University School of Law, here in Cleveland. So many people attended, there was overflow seating in another classroom.
Davis seemed like a nice guy, but said little that would reassure anyone concerned that the detainees won’t receive due process of law. He readily conceded that the detainees aren’t being tried in U.S. district courts – as “American Taliban” John Walker Lindh was, for instance – because the evidentiary standard would be too high there (rather than conviction requiring “proof beyond a reasonable doubt,” at Gitmo it’s “evidence that is probative of guilt”). He also admitted that some detainees may be held until they die, without being either charged or tried.
Davis’s speech was accompanied by a PowerPoint presentation that began with images of the Kenya and Tanzania embassy bombings, the near-sinking of the USS Cole, and 9-11. He emphasized that the U.S. is now at war, and that military tribunals have been used before (in the Civil War and WWII). He originally volunteered to represent some of the detainees, but was instead assigned to lead the prosecution team.
The basic structure of the tribunals had already been determined by the time he was assigned. “I didn’t build the railroad, but I have to run the train,” he said. Some future cases may be capital cases; none of the 10 now designated for trial are. He said of the 187 detainees already released without charge and returned to their native countries, 10 have since been been recaptured or killed while bearing arms against the U.S. or its Coalition partners.
He was emphatic that conditions are Gitmo are humane and respectful of the detainees. He is regularly in touch with the International Committee of the Red Cross, Amnesty International, the ACLU, and the Organization for Security and Cooperation in Europe (OSCE). The Belgian rep of OSCE said, after a tour, that the Gitmo detainees are better cared-for than they would be in Belgian prisons. (Don’t know if that says more about Belgian prisons than it does about Gitmo). Torture is prohibited, and evidence may not be used before a tribunal if it was gained through “undue coercion,” which he conceded, when pressed, he could not define.
There was a lively but respectful Q&A. He said that the detainees aren’t entitled to Geneva Convention protection because they were not a) part of a clear chain of command, b) wearing uniforms when captured, or c) carrying weapons openly, all of which (as he interprets the law) are required before the GC provisions apply. The GC shouldn’t be scrapped, he said, but “could use some freshening up.”
Col. Davis has been a JAG officer for 22 years and noted several times that, since he’s close to retirement, he is virtually immune to “command influence” (i.e. pressure from superiors), and can quit if he becomes convinced that the process is going awry. He looked uncomfortable and didn’t really have an answer when someone asked about the options of less-senior military lawyers who come to the same conclusion.
He pledged that the military commissions will work, will provide due process of law, and will be “full, fair and open, and produce a just result.”
Unfortunately, I can’t say he convinced me.
Comments? Questions?