Last summer, when University of Toledo Law Professor Benjamin Davis met Brig. Gen. Mark Martins at an American Bar Association meeting, he unwittingly procured an invitation to Guantanamo. Davis expressed great skepticism to Martins about the legitimacy of the Guantanamo military commissions trials against Khalid Sheikh Mohammed and four other detainees accused of planning the 9/11 terrorist attacks. Martins, chief prosecutor for the trial, answered, “You should come down and see for yourself.”
Martins followed up on his invitation and arranged for Davis to travel to the United States Naval Station at Guantanamo Bay in Cuba to observe pretrial hearings taking place during the week of Jan. 28. Davis spoke about his experience in a lecture at the UT Law Center on Feb. 7.
Good people in a bad spot
Davis, a lawyer who specializes in international law, said the trip gave him a broader view of the military commission proceedings. He sees the military judge and attorneys as “good people in a bad spot,” doing what they can within the confines of the law. Yet he is not convinced that this process in this location is the best choice. Davis explained: “I’m suspicious about the fairness of the procedure and whether there’s something going on behind the procedure that I’m not aware of.”
Why not conduct the trial in federal court, Davis asked. Congress and the executive branch have kept the process out of Article III courts in the United States by substituting military commission tribunals created under the Military Commission Act of 2009. Davis outlined many of the legal issues left unclear in this legal setting. Other traditions that may inform the proceedings include courts-martial and federal courts. Federal courts operate under Article III of the Constitution in the background. To what extent the Constitution applies to foreign detainees at Guantanamo has not been settled. Davis wondered aloud whether the judge and attorneys are forced to make up the rules as they go along.
Davis examined the military commission in the light of international law. Among the acts prohibited by Common Article 3 of the Geneva Conventions is “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
Davis asked how to characterize this military commission that has the power to impose the death penalty. Is this a “regularly constituted court’ which guarantees what “civilized peoples” recognize as due process, or is it a “show trial in secret”?
He contrasts the split visions that make this tribunal so problematic. The domestic law vision holds that the Military Commission Act of 2009 has made the military commission a “regularly constituted court.” The international law vision, however, holds that “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”
Who is the man behind the curtain?
A dramatic and much reported moment occurred during the first day of hearings, when on the desk of Military Judge Col. James L. Pohl a large red light “like a hockey light” turned on. Immediately the audio feed was cut and the monitor went dark in the observation room. A defense attorney had been talking about CIA black sites at the time. The judge became angry and demanded to know who turned off the feed, an action that is normally under his control.
Defense attorneys became concerned that the buttons that cut off the feed when they speak with their clients might be similarly compromised. The judge discovered that censors outside the courtroom were listening in and had the power to control the feed.
As Davis put it: Who was the man behind the curtain?
No one in the courtroom seemed to know. A government statement issued the following day said that an “original classifying authority,” an apparent reference to the CIA, was also monitoring the proceedings. The judge ordered an end to the censorship.
Davis said he could feel the weight of the classified or protected information in the courtroom throughout the week, and he called it “heavy.” “What is being protected?” he asked. Is it legitimate or illegitimate governmental action that is being protected? Or is it about “protecting reputations?”
Fruit of the Poisonous Tree
Davis believes Congress is to blame for designing a process in the Military Commissions Act of 2009 that decouples people from all other laws. Torture is the centerpiece of the whole problem, according to Davis. The American people want a conviction, he says, and Congress wants a conviction. Evidence obtained through torture, whether it is torture of defendant or witness, will not stand up in a regular court. It’s considered “fruit of the poisonous tree,” a legal metaphor that describes evidence that is obtained illegally. If the source is tainted, the evidence obtained from it is tainted as well. The military commission process, however, might allow such evidence to be used.
Davis wants to see torture perpetrators prosecuted. As a specialist in international law, he is attuned to the fact that International law names three “big” crimes: slavery, genocide and torture. He finds it “unbelievable that we’re in this space in my country in my lifetime.” He recalls the day in 2004 when President George Bush came to town. Davis grabbed the back of a legal pad and made a sign that read: “Indict Bush for Torture.” He taped a couple of pens to it to make handles and held the sign outside the facility where Bush was to speak. He named that experience the beginning of his work against torture, but he believes his activism is rooted in his lifelong Episcopalian faith, which requires him to act on his beliefs.
He recalled a stained glass window at St. Mark’s Episcopal Church on Collingwood Boulevard in Toledo. The window honored a congregation member who was a Marine. Under the words “Semper Fi” was inscribed “Keep our honor clean.” Davis believes many members of the military fear that torture and other irregular detention practices might stain this honor. He recalls that the Judge Advocate General Corps or JAGs were the first to object to torture in the early days of the Afghanistan War, but attempts to review detention procedures were overruled by civilian members of the Department of Defense.
He emphasized that members of the military know the Uniform Code of Military Justice. These rules constrain them. Civilian officials devised practices that departed from these rules. Top JAGs were concerned about protecting members of the service from violating their code.
Davis asserted that the legal rules against torture have an underpinning in moral values of the highest order. He praises the National Religious Campaign Against Torture for raising the issue with communities of faith. Perhaps appealing to a higher authority, he pointed to his recent post on the SALTLAW Blog, in which he quoted a passage from the letter of St. Paul to the Hebrews.
“Remember those who are in prison, as though you were in prison with them; those who are being tortured, as though you yourselves were being tortured.” (Hebrews 13:3)
Military honor and duty
Davis feels there is tension between the JAGs’ “military honor and duty” and their obligations to the civilian branches of government as they carry out the tribunals. The “big problem,” according to Davis, can be framed this way:
“Is the military in this carefully crafted military commission being asked to clean up the CIA, presidential, and congressional oversight mess from torture [that is] out of sight and out of mind? Should we allow the military to be made to play that cleanup role without accountability for those who created the mess? Is this what honor and duty is made to mean?”
In a later interview, Davis expressed sympathy for the military prosecutor’s position. Brig. Gen. Martins is obligated to represent civilian institutions in the government, or what Davis said were called informally the “Big G” in the observers’ room. He answers to the Department of Justice, the Department of Defense, and the intelligence agencies each with their own agendas and interests determining whether the general has a “need to know” classified information. Martins is trying to sell transparency in the proceedings while people behind the scenes take actions that challenge his credibility.
Military attorneys for the defense, on the other hand, do not have the weight of the civilian government on their shoulders, Davis said. Their ethical obligation is to zealously represent their client. Yet history has shown that even they can get in trouble with civilian leaders. When Lt. Cmdr. Charles Swift won a favorable verdict for Osama bin Laden’s driver in the Supreme Court case Hamdan v. Rumsfeld (2006), he was passed over for promotion by the Pentagon just two weeks later, effectively ending his military career.
Davis also pointed to chain of command issues that have potential for restraining the judge and attorneys in their roles. This trial has a brigadier general as prosecutor arguing his case before a judge who is a retired colonel, dramatically upending the traditional military command structures.
Dualities “never far from my mind”
Davis says he and his fellow citizen observers from non-governmental organizations and academic institutions are still processing all that they experienced during their week at Guantanamo.
From the moment Davis arrived at the Naval Station at Guantanamo Bay on the southeastern edge of Cuba he began feeling the tensions of competing emotions. He was taken with the natural beauty of the island and remembered his grandmother who had been born in Cuba. That beauty, however, set up the first of several dualities that Davis said were “never far from my mind.” While Guantanamo was located in a “tropical paradise” that he was permitted to visit and enjoy, the detention camp where 166 men remain was a “tropical hell” that was out of bounds to him.
Davis described hearing the National Anthem being played as the flag was raised in the morning outside the tent city where he and the other observers stayed. He noticed that all the traffic on the base stopped moving out of respect for the anthem. Meanwhile Davis was conscious that the detainees might be hearing this same music. He struggled to hold these two realities in his mind at the same time.
Davis felt another duality as he sat in the observation room with family members of the 9/11 victims. He felt great humility before their loss at the same time that he wanted the defendants to have all the protections of due process. He said that it takes a while for a mind to process the enormity of the charge against the men: 2,976 counts of murder in violation of the law of war. The family members are very brave, he said. Their presence is not just about revenge. In fact, at least one family member was opposed to the death penalty for the defendants. He believed that the families’ presence served as part of their mourning, and he wanted to respect that mourning. When he found that he’d caught the backs of several family members in a photo taken on the ferry ride across the bay, he decided the photo invaded their privacy and violated their grieving process. He deleted the photo.
Davis closed his lecture with the question: Who cares? He found his answer in the audience who shared the courtroom’s observation booth with him that week. The victims’ families were there, “waiting and watching.” The media were there, “so the whole world is watching.” And the observers for non-governmental organizations and ordinary citizens were there, “asserting a right to know the truth about what is done in their name.”
He concluded: “This case should be done in the best of our system, not a system that is questionable, whatever the great qualities of the judge and lawyers.”
The trial will take at least a year to be completed. Davis hopes to return and bring students with him, as he continues to help citizens assert their own “right to know the truth.”