Friday, May 30, 2008

Former Gitmo Prosecutor Denied DMSM

The former chief prosecutor for the military commissions at Guantanamo Bay, Air Force Colonel Morris "Mo" Davis, has been denied the Defense Meritorious Service Medal.

As reported on CAAFlog earlier this month, Colonel Davis' testimony in the trial of Salim Hamdan led to a ruling by the military judge to disqualify Air Force Brigadier General Thomas Hartmann, the legal adviser to the convening authority, from any further participation in the case. The judge, Navy Captain Keith Allred, concluded that the defense had presented "substantial evidence" that Hartmann was too closely aligned with the prosecution. Judge Allred further found that that attention focused on the dispute "seriously called into question" General Hartmann's neutrality and objectivity.

On the heels of the Hamdan ruling comes the latest chapter in the saga: Colonel Davis contends he was denied an award based on his conflict with General Hartmann. General Hartmann, while denying any retribution, has tactily acknowledged that he played a part in the decision to deny the award. "My recommendation," he said, "was based on my experience with Col. Davis," that showed Colonel Davis displayed a lack of leadership as chief prosecutor. "He had a very important position as chief prosecutor, and had an obligation to lead people, to inspire them and to train them ... And that wasn't happening."

Army Colonel Kelly Wheaton, senior military adviser to the DoD General Counsel, however, explicitly linked the decision to deny the award to Colonel Davis' clash with General Hartmann. "I wrote in my recommendation for disapproval that you quit your position when you were needed because you did not want to be supervised by a superior officer with whom you had a difference of opinion," Colonel Wheaton said in an e-mail message to Colonel Davis. Wheaton went on to explain that "... no defense decoration shall be awarded or presented to any service member whose entire service during or after the time of the distinguished act, achievement, or service has not been honorable."

Colonel Davis has criticized the commissions since stepping down as chief prosecutor in October 2007, suggesting that political considerations were being brought to bear in the decision-making process. Defense counsel for a number of Gitmo defendants have already alleged that their clients' trials are being scheduled for their "strategic political value" in advance of this year's Presidential elections. The decision to deny Colonel Davis an award based on the troubled interaction between his office and the legal adviser may be used in further defense motions alleging unlawful command influence in the commission process. In addition, Colonel Davis' decision to inform defense counsel that he will not participate in any more cases, citing his concerns about further retaliation, may also prove fertile grounds for such claims.


Anonymous said...

Scott McClellan's ghost writer has some free time on his schedule.

Anonymous said...

I am a former prosecutor from the military commissions and I served under both Col (ret) Swann and Col Davis. I had already left the office when the dispute between Col Davis and Gen Hartmann occurred; in fact, Gen Hemingway was still there as legal advisor when I left. But I served under Col Davis for at least a year.

I must say that I disagree completely with Gen Hartmann's assessment about Col Davis's leadership. Gen Hartmann's statement: that Colonel Davis displayed a lack of leadership as chief prosecutor; "He had a very important position as chief prosecutor, and had an obligation to lead people, to inspire them and to train them ... And that wasn't happening" is completely false. He was a very good leader, a very good mentor, and he took care of his people. From what I have read, it is Gen Hartmann's leadership that I would seriously question.

That being said, I have been very disappointed in Col Davis's public statements after leaving the commissions. And I was upset that he quit. He should have stayed. I will tell you that the prosecutors at the military commissions are some of the finest officers in all of the services. These are people with integrity and honor, and they are committed to seeing that each accused receives a fair trial that is as open to the public as possible.

What outsiders do not know and cannot understand is the tough battles we fought day in and day out on getting classified information into some form of unclassified information. We had delayed bringing many of these cases for that reason, and trying to get through the various channels of the various agencies that have classification authority is no easy task.

No prosecutor in that officer ever hid, destoryed, or refused to hand over exculpatory evidence. While I was there, no one from DoD ever put pressure on us to submit a case we did not feel worthy of charging or to use any evidence that came from questionable tactics. While I was at the office, Haynes came only once, and that was after that abomination called Hamdan came down from those dictators on the supreme court to tell us that we will continue to march and that we are to start working on drafting the military commissions act. The only pressure was to try and get these cases "in court" but I can't really call it pressure since we did not follow it and never received any reprecussions. BTW, I received a DMSM when I left, as an O-3.

I believe that COL Davis is seeking public attention; the problem is that he doing it to the detriment of some very good, decent, and honorable people. But regardless of what Col Davis says, our office was never pressured from any political hack. We were never ordered to draft certain charges; we were never ordered to bring certain cases ahead of others; and we were never ordered to use certain evidence. In fact, we received more pressure from the media and those wacko groups pretending to care about human rights in the form of continuous libel and slander. Receiving that punishment everyday and not being able to respond is like getting into a boxing match with Floyd Mayweather Jr. only you hands are tied behind your back.

I wish we could have tee'd up KSM first instead of Hamdan. Since the liberal justices and Kennedy are dishonest individuals, surely they would not have shot down the commission that will try the mastermind behind 9-11; but the cab driver for UBL, well that's easier.

Anonymous said...

Military historians and many veterans say medal inflation has lessened the value of all decorations. "Frankly, it dismays me," said Capt. Edward L. Beach, retired, a naval historian and author of the novel "Run Silent, Run Deep." "It's demeaning to me to feel that the medals I earned -- that I thought were so great -- are now a dime a dozen." Mo, get over it. If the medal isn't for combat valor, it's just fruit salad.

Christopher Mathews said...

Anon #3: If the medal isn't for combat valor, it's just fruit salad.

But you'll agree that being denied even the fruit salad awarded to an O-3 like Anon #2 (BTW, I received a DMSM when I left) is something of a statement, yes?

CAAFlog said...

Anonymously besmirching the integrity of Supreme Court justices is honorable?

Anonymous said...

Seems honorable enough to do it here to CCA and CAAF...

Anonymous said...

The day we chum the waters with the sausage that once was KSM will be a great one indeed. I hope I live to see it.

Anonymous said...

0-3 Anonymous, unfortunately, you taint what was otherwise a frank, candid and interesting post with crank statements such as "those dictators on the supreme court" and "wacko groups pretending to care about human rights." Maybe it was statements like these, wink-wink, that ensured you got your medal.

Even though you are just an 0-3, overly enamored with the integrity and honor of Team America, here's some free advice: when you drip a few drops of hack right-wing hyperbole into an otherwise thoughtful piece of writing, you poison the entire well. "Dictators on the supreme court (!)" is such a sophomoric completely undermines your credibility and makes it seem like you are not even a lawyer.

whw said...

Hear hear.

Anonymous said...

I am writing in response to the anonymous comment obviously upset with me calling some of the SCOTUS justices dictators. Well, here is my backing that up:

In the Hamdan opinion, numerous justices signed with Justice Stevens agreeing that the protocol 2 of Geneva, or at least portions of it, are binding on the United States and, evidently, judicially enforceable. Now, President Regean refused to submit protocol 2 of Geneva to the Senate for ratification and expressly rejected protocol 2 because, among other problems, it purported to extend Geneva accord protections to terrorists and terror organizations. While there are many portions of protocol 2 that the U.S. does not disagree with, the U.S. has steadfastly rejected, for more than 40 years, any notion that any terrorist or terror organization are entitled to Geneva accord protections. Thus, even the portions of protocol 2 the U.S. is in agreement, the consistent policy and practice of this nation has been we would never extend that to terrorists or terror groups. (Reagan submitted protcol 1 for Senate ratification and the Senate has refused to ratify.)

But that didn't stop Stevens and the other Justices who joined him on SCOTUS to say, nope, its binding on the U.S. because we believe it is now binding international law. So what the U.S. Constitution, a product of democracy, says treaties are only binding on the U.S. when the President signs it and the Senate ratifies it. So what that nowhere in Article 3 of the Constitution does it give SCOTUS the authority to enter and bind this country to international treaties. And so what that for more than 40 years this country has steadfastly refused to give terrorists the protections under Geneva that now Justice Stevens says we must.

If that is not a dictatorship, then you are living in La-La land and as O'Reilly would say, you need to stop drinking the kool-aid. I bring up O'Reilly to further the "right-wing hack" stereotype view of me based solely on my single post.

Anonymous said...

0-3 Anon,

I am your attacker and I stick by my attack on you. And I AM a right-winger. I'm pro-life, pro-family, pro-war-on-terror, pro-Iraq war, and usually hard-line on criminals. But I'm also a defense attorney. I can separate out my visceral opinions and also offer sober commentary.

What conservative has not been disappointed by major Supreme Court decisions? So what. Justice Roberts says that most decisions are not ideological in the least; they are face-paced, best-they-can-do, textual applications of law or regulation.

But that does not justify hyperbole. The Supreme Court is simply not a dictatorship and a lawyer should refrain from that type of language to maintain credibility. (Unless your Mark Levin, Rush's friend, Ed Meese's former chief-of-staff, and 6:00 pm jerk-radio-commentator who cuts callers who disagree with him off and calls the SC a dictorship) But such talk IS radio-talk-show talk for the dim-witted Amen chorus; its not lawyer talk.

The people are sovereign in America and can amend the Constitution. And it also displays a classic rhetorical error - exagerrating a disagreement by painting the opponent as a moron. Reasonable people can differ on major issues. Human rights groups and Supreme Court justices included.

But, hey, this is America and you can say what you want. I just think you are a very good writer who had some very persuasive things to say...but undermined it all with your crank asides. Do what you want.

Anonymous said...

Anon Attacker:

O-3 Anon: How about "Tyrants?" Is that better than "Dictators?"