When Salim Hamdan, Osama bin Laden’s alleged driver, returned to court recently for yet another hearing in his long odyssey through the ad hoc US legal system for suspected terrorists, he had an unlikely ally–Col. Morris Davis, the former chief prosecutor who charged him with war crimes in May 2007. Davis was there to testify as a defense witness in a motion to dismiss those charges because of unlawful interference by Bush Administration appointees, including Brig. Gen. Thomas Hartmann, legal adviser to the office that oversees the military commissions process.
Since his resignation in October, Davis, once a staunch advocate of the commissions, has become an outspoken critic of the Pentagon’s handling of the Guantánamo cases. Although he doesn’t doubt Hamdan’s guilt, he believes the current system will be unable to administer fair and open trials. The Pentagon has previously disputed Davis’s account and on April 28 sought to discredit him in court. “Colonel Davis was ineffective [as chief prosecutor],” said current chief prosecutor Col. Lawrence Morris, adding that “clearly [Davis] didn’t like or get along with General Hartmann.”
However, despite attempts to dismiss Davis’s claims as a personality conflict, documents obtained by The Nation, as well as testimony entered into the record at Hamdan’s pretrial hearing, reveal that Davis’s opinions were shared by other prosecutors in the military commissions system. In fact, the two lead prosecutors in the Hamdan case–Lt. Cmdr. Timothy Stone and Lt. Col. William Britt–had on previous occasions complained of political interference by Hartmann and of the general “state of disarray” in the prosecutor’s office since his arrival. Along with a detailed complaint Davis submitted to the Pentagon’s inspector general last August, these documents describe an acute level of dysfunction in the military commissions office, in which prosecutors repeatedly raised concerns about “ethical violations,” the “suspect public reputation” of the process, “further embarrassment to the office of the chief prosecutor” and the potential “disqualification of the legal advisor [Hartmann].”
In an August 2007 memorandum, Stone alerted then-chief prosecutor Davis of his intent to seek an opinion from the Navy JAG about “ethical concerns regarding the professed intentions of the Legal Advisor [Hartmann].” According to the memo, Hartmann had planned to meet Hamdan’s civilian defense counsel in Cuba in September to negotiate a plea. “He told the prosecution team (LTC Britt and I) that we were not invited,” the memo reads. Clearly frustrated, Stone wrote that Hartmann’s knowledge of the Hamdan case was “totally insufficient” and that unless Hartmann was given additional information, “my client…the United States, will not be adequately represented.” But if Stone were to provide Hartmann with the necessary case documents, he would have assisted Hartmann in “usurping the role” of the prosecutor and would thus “facilitate…the disqualification of the Legal Advisor,” ultimately weakening Stone’s case and causing “turmoil for the Commissions process.”