Politics and the Military Commissions

Politics and the Military Commissions

Posted By Greg McNeal On November 10, 2007 @ 2:02 pm In Law Blog, Counterterrorism, Public International Law, International Humanitarian Law | No Comments

In a frank interview with the Canadian television program “The Verdict” Colonel Morriss Davis, the former Chief Prosecutor for the Department of Defense Office of Military Commissions offers his insight into the process and the reason why he resigned from his post as Chief Prosecutor (full disclosure, I worked with Colonel Davis on research issues related to the prosecutions). 

Here are some of the highlights:

COL. DAVIS: “I resigned recently because of what I considered political pressure which I deemed unacceptable…the military judge says he took heat for his decisions, I can attest to that on my side as well…for me it got to the point where I felt the politicization of the process had taken control so I resigned.  We have the tools to do it right if you could get a couple of people out of the process.” 

INTERVIEWER: “Can you let us have some idea where this [poltical] heat comes from?”

COL. DAVIS: “Primarily from the Dept. of Defense General Counsel, a gentleman by the name of Jim Haynes.  Mr. Haynes is a political appointee, he had been nominated by the President for a seat on the the 4th Circuit Court of Appeals, but because of his involvement in the torture memo and torture policy his nomination died.  In October Mr. Haynes became part of my chain of command…that’s when I said ‘enough is enough’ and I quit.” 

INTERVIEWER: [Regarding the Khadr Case] Why is this taking so long?

COL. DAVIS: “I put most of the blame at the feet of Jim Haynes.  This is supposed to be a military commission…if they trusted folks in uniform to do this right, I think we’d be halfway finished with all these trials by now.  But they don’t trust the military.  The political appointees want to control the process, they don’t trust the military to do it right…folks in uniform have done their best to bring integrity to this process…”

INTERVIEWER: Some say Khadr is a child soldier, why isn’t he treated as a child soldier?

COL. DAVIS: “…because he is not.  If you look at the Convention on the Rights of the Child, Article 37 talks about the prosecution of individuals under the age of 18.  They can be prosecuted but they can’t be sentenced to death or confinement for life…The definition of a child soldier is one who has not yet attained the age of 15, Omar Khadr was 15 years and 10 months old when we captured him on the battlefield.” 

I’ve blogged [1] previously about the type of issues that Col. Davis raises.  What seems apparent to me, is that the military has consistently raised procedural concerns that have fallen on deaf political ears.  The only type of influence actors in the Executive branch seem to want to exert is that of control of the process.  When given the opportunity to use their influence to clear procedural hurdles and keep the process on track they’ve failed to act. 

Examples of the failure to act abound, for example a good use of Executive influence would be to clear procedural deficiencies such as those regarding:  the jurisdictional predicate made by the C.S.R.T. (which could have been resolved months earlier by changing the “Wolfowitz memo,” but which instead wound its way all the way to the D.C. Circuit); resolving whether the Deputy Secretary of Defense properly constituted the appeals panel (which could have been corrected by a memorandum, but instead had to wind its way through the appeals court); eliminating the requirement that the panel make a sentencing determination when a plea had already been worked out which would supercede any panel determination (instead a panel was constituted and flown down to Guantanamo to make a determination on a sentence that had already been agreed to and finalized); clearing unecessarily classified information for use at trial; eliminating the Appointing Authority’s Legal Advisor’s influence from the process (which creates the perception that an objective check designed to analyze whether charges are sufficient instead appears to be a political process designed to direct the prosecution team regarding what cases they should bring.)  

If the military commissions are really the centerpiece of the administration’s counterterrorism policy (or at least a key part of it), they certainly have not done a good job ensuring the success of the commissions.  Repeatedly in the “war on terrorism” we’ve found uniformed officers taking a principled stance on legal issues, only to be consistently thwarted by political appointees, the Davis interview highlights that this unfortunate practice is continuing today.  The question of course, is what to do?  Revoking the MCA doesn’t seem in the cards, but certainly some more oversight on the part of Congress would be necessary and appropriate.  Undue command influence is a serious issue, it is a prime feature in the M.C.A. & U.C.M.J., and bears directly on Congressional responsibility to regulate the military– if Congress wants to have an impact, perhaps they should look into these command influence issues. 

To watch the full interview click [2] here . 

Article printed from Law Blog: http://aidpblog.org

URL to article: http://aidpblog.org/2007/11/10/politics-and-the-military-commissions/

URLs in this post:
[1] previously : http://aidpblog.org/2007/09/24/appeals-court-rules-in-favor-of-govt-in-gitmo-case/
[2] here : http://www.ctv.ca/servlet/ArticleNews/show/CTVShows/20070313/theverdict-default/20071015/