War court prosecutor quits post

Times Staff Writer

miami -- The chief prosecutor for the Guantanamo military commissions has resigned, raising the prospect of further delays in the Bush administration’s six-year effort to bring prisoners in the war on terrorism to trial.

The Pentagon confirmed Friday that Air Force Col. Morris Davis, a steadfast supporter of the controversial detention and judicial processes at the U.S. Naval Base in southern Cuba, had asked to be relieved of his duties. Defense Department spokeswoman Cynthia Smith said a successor has yet to be named.

Davis’ departure occurred amid reported disagreement within the Office of Military Commissions about how to proceed with war-crimes trials amid pending U.S. federal court challenges and pressure from the Bush administration to produce convictions.


Smith said the Pentagon was “taking measures to ensure a prompt and orderly transition.” She declined to say whether the first trial, which had been expected to start next month would be delayed.

Asked why he was leaving his position, Davis said in an e-mail message that he was “ordered not to communicate with the news media about my resignation or military commissions without the prior approval of the Department of Defense General Counsel and the Department of Defense Public Affairs.”

The Office of Military Commissions’ spokeswoman, Lt. Catheryne Pully, said she had been ordered to refer all inquiries about Davis to the top Pentagon public affairs staff, an indication of the sensitivity about this latest setback. Two other top legal officials also left over the summer, ostensibly to pursue other opportunities but also reportedly frustrated by interference in the judicial process.

Davis, a veteran military lawyer who had served in the position for at least two years, lately had chafed under the second-guessing and micromanaging of Air Force Brig. Gen. Thomas Hartmann, who this summer became legal advisor to the tribunal convening authority, an attorney general-like post.

Hartmann has urged the prosecution to move forward with trials of the “high-value” detainees rather than try smaller fish in the pool for whom prosecutors have more convincing evidence and better-prepared cases. The prosecution was prodded to proceed on those cases before all the commissions’ procedural codes were adopted and legal challenges had been worked out.

The 16 “high-value” suspects, including accused 9/11 mastermind Khalid Shaikh Mohammed, were transferred there from secret CIA prisons a year ago.

Davis was also known to have been unhappy with the administration’s back-channel intervention in the David Hicks case, the only case the military commissions have undertaken. A March plea bargain sent Hicks home to Adelaide, Australia, to serve a token nine-month term for terrorism charges that can carry a life sentence.

The White House intervention was perceived as a favor from President Bush to Australian Prime Minister John Howard, who was facing questions about Hicks in his reelection campaign. It was an intrusion Davis clearly resented.

The commissions’ convening authority, Susan J. Crawford, a former top official of Vice President Dick Cheney’s Defense Department staff, negotiated the sharply reduced punishment without Davis’ knowledge.

Hicks was one of only three of the roughly 330 prisoners at Guantanamo charged with war crimes under the newly reconstituted tribunals following last year’s U.S. Supreme Court ruling that the original military commissions forum was unconstitutional.

Congress enacted the Military Commissions Act of 2006 three months later in an attempt to restart the prosecutions, only to have fresh legal challenges filed in federal courts to the first U.S. attempt to prosecute war criminals since World War II.

The two remaining cases, against a Canadian who was 15 at the time of his capture and a Yemeni accused of serving as a driver and bodyguard for Osama bin Laden, have been in limbo since two commission judges ruled in June that they lacked jurisdiction to try the cases at Guantanamo.

A ruling two weeks ago by the newly impaneled Court of Military Commission Review overturned the jurisdictional decision and instructed the judges to resolve the technicality that led to their rulings, clearing the way for trials to begin.

Davis had reiterated in June that he expected to bring new charges against dozens of terrorism suspects this autumn.

Disagreements about which cases to proceed with first and what charges might be reasonably proved had delayed the filing of charges beyond the three formally accused in February.

Efforts by the State Department to repatriate many of the prisoners to their home countries are also believed to have slowed the indictments; the administration probably wouldn’t want to release or transfer any Guantanamo prisoner facing prosecution.

The military commissions’ defense chief, Marine Col. Dwight Sullivan, and its judge advocate spokeswoman, Army Maj. Beth Kubala, also left their posts in recent weeks.