A former chief prosecutor for the war crimes court testified on Monday that the Pentagon rushed war-on-terror trials -- to get a succession under way while President Bush remains in office -- a move that could require secret sessions and the use of tainted evidence gleaned from water boarding.
In an extraordinary scene, Air Force Col. Morris Davis testified for two hours as a witness for the defense of Osama bin Laden's driver, Salim Hamdan, 36, of Yemen. His lawyers want the trial judge, Navy Capt. Keith Allred, to dismiss his case because commanders allegedly exercised ``unlawful command influence.''
''There was that constant theme that if we don't get this thing rolling before the election, it's going to implode,'' he said, while the driver listened intently. ``Once you get the victim families energized and the cases rolling, whoever took the White House would have difficulty stopping the process.''
For the record, Davis made clear that he has long believed it was ''ethical and appropriate'' to charge Hamdan with war crimes.
''I have never had any doubts about Mr. Hamdan's guilt,'' he said.
But he said Bush administration appointees in the Pentagon, among them former General Counsel William ''Jim'' Haynes, favored prosecuting cases with evidence obtained specifically through water boarding -- a simulated drowning technique employed by the CIA to extract intelligence, which is widely condemned as torture.
A Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, declined to speak to the specifics of the testimony because a military judge is deciding the issue.
To rebut the testimony, the Pentagon brought in retired two-star Gen. John Altenburg to testify that the first U.S. war crimes tribunals since World War II are supervised like soldiers' trials.
Altenburg, a lawyer, oversaw the earliest efforts to stage military commissions for about 30 months until November 2006, straddling a period when the U.S. Supreme Court ruled the format unconstitutional.
''The original military commissions system in my view could have in my opinion produced full and fair trials,'' Altenburg said. Once Congress stepped in to reconstitute them, he said, it ''was their goal to make it as court-martial-like as possible. In the military commissions process, by its very nature and by the type of attention that it gets, you have people in the Department of Defense who are political appointees who have interest in it,'' he added. ``So we rely more than ever on military officers to insert themselves and protect the process and protect the system.''
The drama was delayed throughout much of the day after guards led the driver into court looking disheveled in a rumpled tan prison camp uniform -- in contrast to years of neatly groomed appearances in traditional Yemeni clothes.
Hamdan was protesting the conditions of his confinement, and threatened to boycott the proceedings.
His lawyers say his mental health has deteriorated in more than a year of virtual isolation at Camp Delta. A psychiatrist who works with U.S veterans says Hamdan suffers ''hopelessness and helplessness'' -- and risks becoming suicidal.
Allred, the judge, told the detainee he would consider his complaints on the eve of his trial, in late May -- then recessed while Hamdan tidied up and returned to court in a pristine white gown and scarf.
Prosecutors accuse the father of two with a fourth-grade education of providing material support for terror; conviction could carry life in prison. They cast him as a trusted al Qaeda member who drove bin Laden amid a security net in Afghanistan.
Hamdan was captured in November 2001, allegedly rushing two anti-aircraft rockets to the Battle for Kandahar -- after spiriting his pregnant wife and child to safety in Pakistan.
He says he drove bin Laden for $200 a month, not ideology -- never joined al Qaeda, never fought anyone and didn't know beforehand about the Sept. 11 attacks.
The Bush administration set up the much-criticized commissions to try suspected terrorists outside the regular civilian and military courts, as war criminals. Even were he to be acquitted at trial, the White House system says he can be held as an ''enemy combatant'' as long as there's a war on terror.
''From the start, it's been not just the detainees but the whole system that has been on trial,'' said the American Civil Liberties Union's Ben Wizner, a Pentagon-approved war court observer.
He called Monday's testimony ``an extraordinary spectacle to see the former chief prosecutor testifying as the defense's star witness.''
Especially so because, until he abruptly quit in October, Davis had been the most forceful, colorful public advocate of the war court. Reporters gave him the nickname ''Col. Nosferatu'' after he compared Guantánamo detainees to vampires cringing from the bright light of American justice.
Justice Department lawyers, he said, wrote the manual for commissions out of sight and scrutiny of the military attorneys who were expected to implement it.
While he was convalescing from shoulder surgery last summer, he said, the Pentagon's war court legal advisor, Air Force Brig. Gen. Thomas Hartmann, began pushing for swifter prosecutions of alleged al Qaeda foot soldiers rather than what Davis called ``facilitators.''