When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes--the man who now oversees the tribunal process for the Defense Department. "[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.
"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals, we've got to have convictions.'"
A few days ago in a McClatchy article that didn't gain enough attention, both Hillary Clinton and Barack Obama weighed in on the military tribunal process. Both advocated trials in federal court or military courts under the Code of Military Justice and criticized the tribunal process. The article said Clinton had a plan for moving the trials, Obama didn't offer one.
If elected president, Hillary Clinton would ask the Justice Department to determine if alleged 9/11 plotters currently held at Guantanamo Bay, Cuba, could be tried in civilian courts or regular military courts rather than face military commissions that have sparked controversy both inside and outside the United States, her campaign says.
Clinton's response to questions about charges filed last week against six Guantanamo prisoners was the most far reaching of the three leading presidential candidates.
Her opponent for the Democratic nomination, Sen. Barack Obama, D-Ill., said that the so-called "high-value detainees'' at Guantanamo should be tried in federal or traditional military courts, but did not say what actions he would take to move the trials.
Here's are Barack Obama's comments:
"As a candidate to be the next commander-in-chief ... I think it's important to be careful about commenting on specific cases pending before the tribunals at Guantanamo Bay," Obama said in a statement.
But he said the "trials are too important to be held in a flawed military commission system that has failed to convict anyone of a terrorist act since the 9/11 attacks and that has been embroiled in legal challenges.
"As I have said in the past, I believe that our civilian courts or our traditional system of military courts martial are best able to meet this challenge and demonstrate our commitment to the rule of law."
More from Hillary:
"While the policies at Guantanamo have hurt America's image, this is more than just an image problem," said Feinstein, Clinton's adviser.
"Senator Clinton believes those who have committed crimes against the United States should be brought to justice. And that justice is long overdue. Proper military commissions are established to expedite battlefield justice, but the deeply flawed military commissions set up by the Bush administration and blessed by the Republican congress in 2006 have only delayed the administration of justice in these cases."
John McCain said he will continue the current plan of trial by military commission at Guantanamo. He's also proposed moving the detainees to the prison at Ft. Leavenworth, KS. Ironically, if that were to happen, the detainees could have more access to the courts since they would be on U.S. soil.
As to the Military Commission Act:
McCain voted for the Military Commissions Act, which passed the Senate 65-34. Both Obama and Clinton voted against it.
President Bush signed the Military Commission Act into law in October, 2006.
My analysis of the bill (which includes former Prosecutor Davis's strong endorsement of the bill) is here.
