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Former chief prosecutor at Guantanamo says Khadr's trial will be open

The Canadian Press
October 25, 2007

WASHINGTON - Omar Khadr's military trial will be an open-door event because U.S. military lawyers spent two years getting secret information on the Canadian declassified, says former chief prosecutor Col. Moe Davis.

But there's far less certainty about other Guantanamo Bay detainees, said Davis, who fears a major push for speed over transparency from the Bush administration will ensure their trials aren't public.

"I think Khadr can be done in its entirety on a completely open basis," Davis, who abruptly resigned Oct. 4 from his job at the terrorism tribunals, said in an interview Thursday from Atlanta.

But others, including so-called high value detainees with alleged direct connections to the 2001 terrorist attacks, may proceed almost completely in private, with prosecutors citing national security concerns, he said.

Some Pentagon officials didn't share his view of the need for transparency and constant media coverage of the trials, said Davis, one reason he resigned after just over two years on the job.

They were more concerned about pushing for convictions on high-profile detainees before the 2008 elections, he said.

"Over time, in my opinion, it's gone from military commissions to political commissions."

Davis, in a lengthy memo last month to the Defense Department's inspector general, complained his authority was being challenged by a new legal adviser to the lead authority overseeing the trials, Brig.-Gen. Thomas Hartmann.

The final straw, said Davis, occurred when Pentagon general counsel Jim Haynes became part of the prosecution chain of command.

Haynes had a hand in a notorious memo permitting coercive interrogations of terror suspects like Khadr and narrowly defining torture as treatment causing pain similar to death or major organ failure.

Davis's resignation is not the first to embarrass the Pentagon and its system for trying foreign terror suspects, which has been harshly criticized for years by defence lawyers and rights groups as unfair and undermining the rule of law.

Two senior prosecutors resigned in 2005 after complaining the trials were arranged to improve chances for convictions and deprive defendants of evidence helpful to their cases.

Davis took the job after Khadr had already been chosen as one of the first detainees to be charged and face a tribunal at the U.S. naval base in Cuba.

There was no question his case would have appeal, he said.

"Our definition of sexy was something like Khadr. People understand murder."

"It was a good case with witnesses and evidence."

Prosecutors say that evidence includes a video of Khadr planting bombs aimed at U.S. soldiers.

Khadr, 21, is scheduled for another hearing Nov. 8 to determine whether or not he's actually an "unlawful" enemy combatant who was illegally fighting Americans in Afghanistan in 2002.

That designation has been required by Congress since the new Military Commissions Act came into force last year. The first system got dumped after the U.S. Supreme Court ruled it was illegal.

Davis has made no secret of the fact that he thinks Khadr is guilty. Before the first hearing of the Canadian's case in January 2006, he told reporters Khadr is a terrorist murderer who deserves to be convicted and spend his life in prison.

Authorities could have sought the death penalty but didn't because Khadr was only 15 years old at the time, he said.

Davis has always rejected accusations of widespread torture at the prison camp, including waterboarding, or simulated drowning.

"It was a very isolated number of occasions where that was used."

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