Twist of Fate: Gitmo Prosecutor Could Be Defense Witness

He still believes in the Military Commission Act. "This could all be fixed fairly easily," Davis said. "It's important that these trials be open and transparent. Otherwise, it's like allowing the referee of the ball game to be the head coach for one of the teams. We were getting an awful lot of influence."

Davis, who is currently the director of the Air Force Judiciary but is planning to wind down his military career and look for a teaching job, knows that his recent decisions have confused his old foes and friends.

"As chief prosecutor, I was vilified by those on the left. If you look on the Internet, there is a draft war crime indictment that says I should be executed. On the other side, I went from being a hero to a zero. I don't know if it makes much difference what side hates you."

"I haven't lost any sleep over what I did. There are some extremely bad people at Gitmo, but they need to get justice at a proceeding that is consistent with our values."

Asked for comment regarding claims made by Davis, Pentagon spokesman Jeffrey D. Gordon replied via e-mail, "For the record, we dispute the assertions made by Col. Davis."

Davis' situation is almost unprecedented in the history of military justice, according to experts.

"I can't think of a comparable case where a prosecutor ended up as a defense witness," said Eugene Fidell, a director at the National Institute of Military Justice. "We're breaking new ground here. This is certainly not what I predicted."

Fidell cautions that it is not certain whether Davis will testify in the case. "I think the government will resist this and I suppose their rationale would be that his testimony is irrelevant or his conversations with Mr. Haynes would be privileged."

Fidell is struck by the odd twist in Davis' views of the military commission.

"Mo was a very ardent supporter of the system," Fidell said. "Above all, I have a sense of irony. He was 'naive' enough to think that he would be able to do his job as a prosecutor rather than being an errand boy for anyone."

Before Davis' selection as chief prosecutor, three other prosecutors requested to be transferred out of the Office of Military Commissions in 2004 reportedly out of similar concerns.

Maj. Robert Preston, who sent e-mails to his supervisors decrying the lack of strong evidence against the accused, felt that the military was pursuing small targets.

"I felt that we were looking at guys who were small potatoes. In what is considered a war crimes trial, you typically go after the leaders, not the guy carrying the rifle."

Preston, who says that Davis was one of his instructors, thinks that the colonel's resignation is a major indictment of the process.

"It's a big deal that this guy is doing this. Lightning doesn't strike twice. When you're in the military, you just can't quit. That's not how it works. For people to do that twice, in the same scenario, that tells you about the lack of progress."

"Surely it raises some eyebrows when the man in charge of prosecution has some questions about what is going on."

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