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By Ben Wizner, staff attorney with the ACLU National Security Project. Ben arrived in Guantánamo Bay Sunday evening to attend this week's military commission hearings involving Salim Ahmed Hamdan, which are slated to conclude today.

It’s become almost cliché to observe that each time a detainee is brought before a military commission at Guantánamo, it’s the commission system itself that is truly on trial. On Monday, however, that talking point achieved a more concrete reality with the extraordinary spectacle of the commissions’ former chief prosecutor appearing as star witness — for the defense.

The much-anticipated testimony of Air Force Colonel Morris Davis would occur in the afternoon. In the morning, it was the sad and familiar, rather than the extraordinary, which prevailed.

Salim Ahmed Hamdan, alleged to have been Osama bin Laden’s driver, appeared in the courtroom looking haggard and dressed, for the first time, in prison garb. He asked to address the court and was given permission.

"Does the animal have rights, or not?" he asked. "Can you answer me? My question is: the animal has rights or not? But the human being doesn’t have rights."

Hamdan then indicated his desire to boycott proceedings and dismiss his lawyers: "I refuse participating in this and I refuse all the lawyers on my behalf — and I don’t allow the lawyers to participate in my absence." He rose to leave, then sat back down.

Then, in an exchange with the judge, Hamdan revealed that he was most distressed by his military escorts’ refusal to allow him to use the bathroom in private: "Forgive me, I would like to use the bathroom, but the soldiers would not allow me — they wanted to be inside with me. Is that respect? Is that human rights? Do you accept that in your country?" The judge called for a recess to see whether Hamdan’s immediate concerns might be addressed, and it was far from clear that Hamdan would return or that the proceedings would continue.

It was an illuminating moment. Hamdan has become something of a household name, at least among lawyers. He is the Guantánamo prisoner who sued the Secretary of Defense, took his case to the U.S. Supreme Court, and won — in a landmark decision that will be studied for decades. Today’s hearing made painfully clear that the Supreme Court’s ruling has had positively no effect on Hamdan’s life — except, possibly, to make it worse. Following the Hamdan decision, Congress enacted the deplorable Military Commissions Act, which purported to strip detainees, including Hamdan, of the right of habeas corpus. Following the MCA’s passage, Hamdan’s habeas case was dismissed — and he was promptly transferred into solitary confinement, where he remains. It is a sober lesson for any lawyer.

Hamdan did elect to return to court in the afternoon, so he was able to witness one of the more remarkable moments in the history of a system that’s been replete with them. Colonel Davis took the stand and was sworn in by his successor as chief prosecutor, Colonel Lawrence Morris. Then, under questioning from the defense, Davis offered a disturbing narrative of his 25 months as chief prosecutor.

Davis began by recounting his initial job interview in Washington with Department of Defense General Counsel Jim Haynes. Prior to being summoned for the meeting, Davis knew nothing about military commissions, so he read everything he could about them, including descriptions of the Nuremberg trials. During the meeting, Haynes insisted that the commissions would be the "Nuremberg of our time." Davis replied that in his view, the fact that there had been acquittals as well as convictions at Nuremberg had enhanced legitimacy of those proceedings. Haynes seemed genuinely surprised, and replied: "We can’t have acquittals here. We’ve been holding these guys for years. How would we explain that?"

It was an inauspicious beginning, but the situation worsened considerably. Many of Davis’s direct conflicts were not with Haynes but with Brigadier General Thomas Hartmann, the legal advisor to the commissions. Hartmann was particularly intent on prosecuting the "9/11 cases." He told Davis that the election was coming up in 2008, and "if we don’t get these cases started, the commission system will implode. Once we get the victims’ families energized, we’ll be rolling, and when the train is rolling, it will be hard for the next president to stop."

Hartmann wondered why Davis, who had repeatedly made clear that he would never permit the introduction of evidence extracted through waterboarding, believed he had authority to make that decision. Other senior officials believed that waterboarding was acceptable, said Hartmann, and the judge not Davis, should sort it out. Hartmann also demanded a faster pace in bringing and prosecuting charges, even if that meant proceeding with classified evidence in closed proceedings. Davis insisted on transparency as a key to the commissions’ legitimacy.

In August of 2007, Davis wrote a detailed complaint laying out what he believed to be the improper actions of Hartmann, and delivered the complaint to the military commissions’ chief official, convening authority Susan Crawford. Crawford had left early that day for a Johnny Mathis concert but she responded eventually by informing Davis that Hartmann did not report to her, so she had forwarded the complaint — to Jim Haynes. In October, Davis was summoned to Haynes’s office, where he learned that the chain of command had been altered to place Haynes at the top.

Davis resigned immediately. He explained: "The guy said waterboarding was A-OK. I was not going to take orders from."

Davis then submitted another detailed complaint to the Department of Defense’s Inspector General. In response, he received a one-page, typed letter. It informed him that his complaint had been referred to the department’s "legal expert" — Jim Haynes.

Originally posted to ACLU on Tue Apr 29, 2008 at 08:25 AM PDT.

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