Twist of Fate: Gitmo Prosecutor Could Be Defense Witness

Feb. 27, 2008 — -- He's been vilified as a war criminal for his strong support of detaining and prosecuting alleged terrorists at the controversial Guantanamo Bay military prison.

And he has been condemned for calling the detainees murderers, mocking their defense claims as "nauseating" and sarcastically poking holes in their alibis for being caught in Afghanistan: "When these guys went to camp, they weren't making s'mores and learning how to tie knots."

But Air Force Col. Morris "Mo" Davis, a 25-year veteran of the military and the former chief prosecutor at Guantanamo Bay, could wind up becoming a key defense witness for Osama bin Laden's driver.

In a stunning turnaround, Davis says that he has met with Salid Ahmed Hamdan's defense team and that he plans to testify at a hearing in the case. Davis would tell the court about what he says is political interference in the U.S. military tribunals, according to Hamdan's military lawyer, Navy Lt. Brian Mizer.

The irony is not lost on Davis, especially because he believes that Hamdan is probably guilty.

"This has nothing to do with the guilt or innocence of Hamdan," Davis told ABCNEWS.com. "I saw the charges and I wouldn't have forwarded them to the convening authority unless I felt we had a compelling case. I am satisfied that there is a strong case against Mr. Hamdan. He should be held accountable, but the process should be fair."

Davis resigned in October after more than two years of mounting concern that the military tribunals had become politicized by Bush administration appointees who demanded convictions.

Among his claims, he says that the Pentagon's former general counsel William Haynes insisted there be no acquittals and that Deputy Defense Secretary Gordon England sought convictions in the months before the 2006 midterm elections.

During a September 2006 meeting at England's office, Davis claims that England told Haynes and him, "Hey, the election's coming up. There could be some strategic political value to get these guys charged quickly," referring to the Gitmo detainees including admitted 9/11 plotter Khalid Sheikh Mohammed.

"To Haynes' credit, he said, 'That's not your decision to make,'" Davis said.

But during his Aug. 1, 2005 interview to vet his selection as chief prosecutor, Davis says that Haynes insisted the tribunals had to produce convictions and no acquittals.

In the meeting, Davis drew a parallel with the post-World War II Nuremberg trials. "Some of the guys were acquitted at [Nuremberg]. If we come up short and that happens, that would tend to validate the process," Davis said he told Haynes.

"His eyes got big and he said, 'We can't have acquittals. We've been holding these guys for some time and we can't have acquittals.'"

Davis also suspects that the plea deal to release the "Australian Taliban" suspect David Hicks was orchestrated to help Australian Prime Minister John Howard, an ally of the Bush administration, who was up for re-election.

"There is no smoking gun that shows David Hicks' case was a political favor, but if you look at the timing you can't fathom any other explanation," said Davis, who adds that court members were looking at a maximum seven-year sentence.

Davis says the interference was "really disappointing," especially because he had tremendous confidence that the process would result in fair trials.

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."