Ex-Military Commission Prosecutor: What to Do With GTMO

GUANTANAMO BAY — Retired Air Force Col. Morris Davis, a former chief prosecutor of the military commissions-turned-critic, has an opinion piece in the Huffington Post expressing disappointment in President Obama for not keeping his campaign pledges to shutter Guantanamo and end the commissions. (Davis might have considered that there is real congressional antipathy to closing the detention facility and Obama needs Congress’ aid to close it; but keeping the military commissions, in revised form, was a unilateral act.) Davis reprises some of his older themes about the professionalism of the guards here — something I’ll get to observe for myself, in about an hour, when I tour three of the six detention camps.

On the commissions, however, Davis is less judicious about the hybrid law/war system that they represent:

Second, if terrorism falls within the ambit of warfare rather than ordinary crime, then the Geneva Conventions are the basis of the rights the detainees enjoy, and fairly administered military commissions could meet or exceed the requirements of Common Article 3 of the Geneva Conventions. Decide whether we’re at war with al Qaeda and its affiliates or if their activities are manifestations of a crime spree, and pick the corresponding criminal forum. Fourteen high value detainees got off the airplane at Gitmo in September 2006. Parsing an explanation for why Ghailani gets full constitutional rights in a trial in federal court while his fellow passenger Nashiri gets something less in a military commission does not enhance our standing in the eyes of the world.

And that doesn’t even touch on some of the confusion closer to home. Among the reasons Sen. Lindsey Graham (R-S.C.) wants Khalid Shaikh Mohammed tried by a military commission and not a civilian court is because it’s hard to understand why the architect of 9/11 wouldn’t be placed before a venue designed for trying war crimes but someone charged with a lesser offense would be tried there. Two senior administration officials, David Kris of the Justice Department and Jeh Johnson of the Defense Department, didn’t articulate a clear rationale for determining who ought to be tried in which venue during the highest-profile congressional hearing on the question thus far.

Davis also highlights the looming question of judicial oversight for any post-Guantanamo system of indefinite detention without trial, something Graham and Attorney General Eric Holder recently agreed the administration and Congress ought to design. Check out the piece.