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.The analogy to Nuremberg, of course, is pretty inexact. Nobody in 1946 was worried about whether a few acquitted Nazis were going to continue the war if they were released. But Davis's interview nonetheless highlights the fact that not only haven't we figured out what to do in cases like this, but the Bush administration isn't even interested in seriously thinking about the questions. What do you do with prisoners captured in a war where there are no uniforms, no fixed field of battle, no beginning, and no end? How do you make sure you treat them fairly? How do you gather evidence and whose testimony do you trust? What's more important in the long run: the moral high ground gained by fair trials as in Nuremberg or the possibility that a small number of the guilty will go free and continue to plan acts of terrorism?
"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.'"
Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions' chain of command. "Everyone has opinions," Davis says. "But when he was put above me, his opinions became orders."
These aren't trivial issues, but Haynes's approach — torture is OK, kangaroo trials are OK, just make sure everyone is convicted and locked up forever — is better suited to a banana republic dictatorship than it is to the foremost democracy on the planet. Even Colin Powell has figured that out by now; why can't George Bush?