Military lawyer 'puts career on line' to question fairness of commission system he had championed

by William Glaberson

Until four months ago, Col. Moe Davis was the chief prosecutor at Guantanamo Bay and the most colourful champion of the Bush administration's military commission system. He once said sympathy for detainees was nauseating and compared putting them on trial to dragging "Dracula out into the sunlight."

Then, in October, he had a dispute with his boss, a general. Ever since, he has been one of those critics who will not go away: a former top insider, with broad shoulders and a well-pressed uniform, willing to turn on the system he helped run.

Still in the military, he has irritated the administration, saying that Pentagon officials interfered with prosecutors, exerted political pressure and approved the use of evidence obtained by torture.

Now, Davis has taken his most provocative step, completing his transformation from Guantanamo's chief prosecutor to its new chief critic. He has agreed to testify at Guantanamo on behalf of Salim Ahmed Hamdan, a driver for Osama bin Laden.

The career military lawyer, nearing retirement at 49, said he would never argue Hamdan was innocent, but Davis is ready to question the fairness of the commission system. Noting "a potential for rigged outcomes," Davis said he has "significant doubts about whether it will deliver full, fair and open hearings.

"I'm in a unique position where I can raise the flag and aggravate the Pentagon and try to get this fixed," he said, acknowledging he enjoys some aspects of his new role. He was replaced as chief Guantanamo prosecutor but is still a senior legal official for the air force.

Among detainees' advocates, there was something of a gasp when it was announced last week that Davis would bear witness in April.

Hamdan's chief military lawyer, Lt. Cmdr. Brian Mizer, said he would offer Davis to argue that charges against Hamdan should be dismissed because of improper influence by Pentagon officials over the commission process. Prosecutors may object and it is unclear how the military judges will rule.

Whatever happens, some advocates for detainees say officials may have difficulty erasing the image of a uniformed former Guantanamo champion challenging them directly - particularly one known for scorched-earth attacks on adversaries, be they terror suspects or lawyers.

"He was the attack dog for the military commission system," said Zachary Katznelson, a lawyer for Guantanamo detainees.

Last year as chief prosecutor, Davis publicly suggested a marine defence lawyer for a detainee might be guilty of a crime for using "contemptuous words" about President George W. Bush when the marine questioned the fairness of the Guantanamo system.

At the time, critics ridiculed Davis as an administration apologist. But in recent weeks, some of them have described him in near heroic terms.

Jennifer Daskal, of Human Rights Watch, called Davis the most significant insider to tell what he knew about Guantanamo, saying, "He has put his career on the line."

Some with Pentagon ties say the unusual story started as a power struggle between Davis and a general with broad powers over the Guantanamo legal system, Brig. Gen. Thomas Hartmann, who has declined to comment.

Davis, the son of a disabled World War II veteran, is experienced in military prosecution and defence. In interviews this week, he challenged Pentagon officials to take lie-detector tests. He portrayed himself as battling political appointees but said he still believed a military commission system could work. "It's gotten so tarnished that if we're going to convince the world that this isn't some rigged process we have to bend over backwards."

The Davis solution is giving control to military officials, but he suggested darkly some "people at key points in the process ... I just don't know what their allegiance is."

When Davis resigned as Guantanamo's prosecutor last summer, officials disclosed he had filed a formal complaint asserting Hartmann improperly pressed for more war crimes cases and demanded "sexy" ones that would excite the public. An internal report sided with Hartmann but suggested the general should avoid too much influence over military prosecutors.

Reassigned by the air force, Davis found an audience. He told one newspaper he had been pressed to hold hearings in closed courtrooms. He wrote op-ed pieces saying Hartmann had reversed his policy of refusing to use evidence derived through torture. He told The Nation Pentagon general counsel William Haynes informed him "we can't have (Guantanamo) acquittals."

In reply, a Pentagon official said, "We disagree with the assertions made by Col. Davis."
© 2008 The Toronto Star