AWOL Military Justice

[LawVol]

For your consideration:

Los Angeles Times
December 10, 2007

AWOL Military Justice

Why the former chief prosecutor for the Office of Military Commissions resigned his post.

By Morris D. Davis

I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.

In my view -- and I think most lawyers would agree -- it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the "convening authority" -- a title with no counterpart in civilian courts -- was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective -- not predisposed for the prosecution or defense -- and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg's staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution's pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.....

[Tom Odom]

related piece on Saturday E-Bird from the Wall Stree Journal provides background to the above

Wall Street Journal
December 8, 2007
Pg. 4

Guantanamo Testimony Is Blocked

By Jess Bravin

WASHINGTON -- A military prosecutor said the Bush administration blocked him from testifying before a congressional committee examining the treatment of Guantanamo Bay detainees -- the second such incident.

Air Force Col. Morris Davis was slated to testify next week that recent policy changes had left the military-commission system, set up to prosecute Guantanamo prisoners for war crimes, open to improper political influence, including possible pressure to use information obtained through waterboarding.

Col. Davis planned to say that he considered information obtained through the interrogation technique, which simulates drowning, unreliable and that he had ordered his staff to exclude such evidence from their cases. But other government officials disagreed about waterboarding and other issues, Col. Davis said in a draft of testimony reviewed by The Wall Street Journal.

Col. Davis said he was told Thursday night that the Defense Department wouldn't permit him to appear before the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security. Col. Davis was chief Guantanamo prosecutor from 2005 until October, when he resigned in protest.

[Rex Brynen]

Without commenting on the individual or the substance of the dispute, this seems to me a reminder that there are all sorts of heroes: those who risk their lives, and those who stand up and put their careers on the line for what they believe is right.

Had there been more of that in 2002-03, Iraq might have been rather different (or not happened at all).

[LawVol]

WASHINGTON - The Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House's policies toward prisoners in the war on terrorism.

The administration has proposed a regulation requiring "coordination" with politically appointed Pentagon lawyers before any member of the Judge Advocate General corps - the military's 4,000-member uniformed legal force - can be promoted.

A Pentagon spokeswoman did not respond to questions about the reasoning behind the proposed regulations. But the requirement of coordination - which many former JAGs say would give the administration veto power over any JAG promotion or appointment - is consistent with past administration efforts to impose greater control over the military lawyers.

The rest of the story is here: Controlling Lawyers

I can't believe this is even being discussed in a country that prides itself on the rule of law and the independence of legal counsel. This will have such a chilling effect on legal advice as to make lawyers a rubber stamp for the administration's policy. Hopefully, cooler heads will prevail.

[Ken White]

can agree on that. That's just abysmally stupid...

[tequila]

It's not stupid at all. It's quite intelligent if you have no respect for the things LawVol noted before. Quite reminiscent of the old Soviet system of supervision by politruk.

[120mm]

Just to play "devil's advocate", it appears the something needs to be done about military lawyers who appear to be less and less concerned about serving the military legal system, and who do not feel constrained from applying constitutional "rights" to individuals who traditionally have not been protected by the constitution. (i.e. extralegal combatants)

I think that the entire concept of "military law" is half a step away from the grave, and the application of civil/criminal law onto military circumstances will fatally handicap the nation-state even more than it is now. It will, in effect, deny the nation-state's right to defend itself while restricting the terrorist not a whit.

The convening authority has been a bad joke, ever sense military lawyers have bypassed military authority to the federal court system, imo.

I'm not a lawyer, but the fact that we mention "constitutional rights" and "extralegal combatants" in the same sentence tell me we're heading the wrong direction. Convene the authority, hold the tribunals, shoot the ones in the head that need it and let the others go.

[slapout9]

It's not stupid at all. It's quite intelligent if you have no respect for the things LawVol noted before. Quite reminiscent of the old Soviet system of supervision by politruk.

Yep!