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Colonel Morris Davis on Interrogation and the Defense Department
Jun-17-08 11:20 pm
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Colonel Morris Davis

The Senate Armed Services Committee held a hearing today on "the origins of aggressive interrogation techniques." The witnesses included Alberto Mora, former  General Counsel, Department of Defense, Rear Admiral Jane Dalton, former Legal Adviser to the Chair of the JCS, and William J. Haynes, former Department of Defense General Counsel.  Marty Lederman had a couple of excellent posts on the hearing (here and here).  One of the best comments came from Colonel Morris Davis, former Chief Prosecutor for the Military Commissions, in response to one of Marty's posts. Col. Davis noted:
I am at Guantanamo Bay waiting to testify (again) on Thursday about unlawful command influence in the military commissions process. Since I have nothing to do until Thursday, I was able to watch today’s Senate Armed Services Committee hearing from start to finish. Those of you who got to watch the hearings and saw the testimony of Jim Haynes probably understand why I submitted my resignation within an hour of learning that the Department of Defense chose to place me under his command and control. My ability to ensure full, fair and open trials evaporated at that moment.
Today’s hearing focused on the propriety of employing harsh interrogation techniques to obtain intelligence. My concern as chief prosecutor was not so much whether the harsh techniques produces good intelligence (perhaps it did), it was whether the same information was also reliable evidence we should use to establish someone’s guilt and perhaps sentence him to death. In my view, that is a much higher threshold. If there’s genuine doubt about the reliability of the information we extracted in the intelligence context there should be no doubt the same information has no place in a judicial proceeding conducted in the name of the United States. Unfortunately, above me in the chain of command were Brig Gen Tom Hartmann and Jim Haynes who didn’t share my views on waterboarding and other enhanced techniques. Note, too, that after Judge Allred found in the Hamdan case that Brig Gen Hartmann broke the law by engaging in unlawful command influence DoD didn’t remove Brig Gen Hartmann, they charged six more detainees. Apparently if you can refocus the public’s attention on the flurry of activity on the right hand they might not notice that the left hand has erupted in flames.
What a sad tale.

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

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