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The Role of Military Commissions in the Global War on Terrorism Morris D Case Western Reserve Journal of International Law Volume 37 | Issue 2 2006 The Role of Military Commissions in the Global War on Terrorism Morris D. Davis Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Morris D. Davis, The Role of Military Commissions in the Global War on Terrorism, 37 Case W. Res. J. Int'l L. 537 (2006) Available at: https://scholarlycommons.law.case.edu/jil/vol37/iss2/18 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. THE ROLE OF MILITARY COMMISSIONS IN THE GLOBAL WAR ON TERRORISM * Morris D. Davis Moderators: Dean Gerald Komgold, Dean and Everett D. and Eugenia S. McCurdy Pro- fessor of Law, Case School of Law, and Professor Amos N. Guiora, Professor of Law and Director, Institute for Global Security Law and Policy, Case Western Reserve University School of Law, Lt. Col. (Ret.) Israel Defense Forces, Judge Advocate General's Corps Speaker: Colonel Morris D. Davis, Colonel, United States Air Force, Chief Prosecu- tor for the Office of Military Commissions, United States Department of Defense PROFESSOR AMOS N. GUIORA: I first met Colonel Davis four years ago when, as Commander of the Israeli Defense Forces School of Military Law, I visited Colonel Davis and his staff at the U.S. Air Force Judge Advocate General School. Little did I know that four years later, in my capacity as Director of Case Law School's Institute for Global Security, I would have the privilege and pleas- ure to host Colonel Davis in his capacity today as Chief Prosecutor of the Office of Military Commissions for the Department of Defense. In the fall of 2004, the Department of Defense selected Case Law School to be the only law school in the United States to work with the prosecutors in Guantanamo on a broad range of international, criminal, and constitutional law issues. The legal work that we do here at Case Law School for the Office of the Chief Prosecutor is an extraordinary honor for the students, one that the students take very seriously. The students deeply " Lecture Sponsored by the Institute for Global Security Law and Policy at Case Western Reserve University School of Law on Tuesday, March 7, 2006. The event was webcast live and is available online at http://law.case.edu/lectures/index.asp?lec-id=l 19. CASE W. RES. J. INT'L L. [Vol. 37:537 appreciate the opportunity to impact the public debate. As Dean [Gerald] Korngold mentioned, Colonel Davis expressed in writing and stated to him the significance of the students' work for the Department of Defense. It is an extraordinary privilege for Case Law School to be the very first law school where Colonel Davis will speak publicly, addressing the critical is- sues of Guantanamo. Colonel Davis was appointed Chief Prosecutor for the Office of Military Commissions in September 2005. He leads a team of legal profes- sionals selected from all the military services and the Department of Justice. Colonel Davis is responsible for the prosecution of individuals detained at Guantanamo, whom the President has determined are subject to the Presi- dential Military Order of November 2001.' Colonel Davis has been an Air Force Judge Advocate for more than twenty-two years. He served as Staff Judge Advocate four times, including a tour in Saudi Arabia in support of Operation Desert Storm. He was the Director of Legal Information Services, the Department of Defense Executive Agent for Development in Support of Legal Information Technology, and served two tours at the Air Force Judge Advocate General School as Deputy Commandant and Civil Law Instructor. He has served as Defense Counsel, Circuit Prosecutor, and Appellate Coun- sel, where he was responsible for Air Force criminal cases filed with the United States Supreme Court. Colonel Davis has published writings on en- hancing military relations with the press and on government contract law. Today, we at Case Law School are indeed honored to host Colonel Davis. It is my great privilege and pleasure to ask you to join me, very warmly, in welcoming Colonel Morris Davis. COLONEL MORRIS D. DA VIS: It truly is a pleasure to be with you. The main reason I am here in Cleveland is to say thank you to Case Western Reserve Law School for the important work you are doing. As Professor Guiora noted, you are the only school supporting the Office of the Chief Prosecutor in the Military Com- missions, and we are very grateful for the work you are doing. I have been the Chief Prosecutor for about five months now and I can tell you I had never heard of the tu quoque defense that was raised in a defense motion not long after I arrived. I was pleased to find that one of your students had al- ready written a fairly substantial volume of work on the tu quoque defense, and it made our job pretty easy to pull her work off the shelf and draft our response to that novel motion. Military Order of November 13, 2001, Detention, Treatment, and Trial of Certain Non- Citizens in the War Against Terrorism, 3 C.F.R. 918 (2001). 20061 THE ROLE OF MILITARY COMMISSIONS 539 I am here to talk about the people we are holding at Guantanamo Bay and our efforts to hold them accountable in our part of the "Global War on Terror." Some ask me why we are doing this. We are doing this because of people like Boeing employees Chandler Keller, Dong Chul Lee, and Ruben Ornedo, who were murdered when al Qaeda hijacked American Airlines Flight 77 and crashed it into the Pentagon, killing sixty-four people on the plane and 125 people in the Pentagon. If you look around outside right now, folks do not realize-it is not readily apparent at least-that we are at war. But we are. Last week, at Guantanamo Bay, we had a preliminary hearing in the al Bahlul case.2 Mr. al Bahlul said during the proceedings, "I do not want an American military lawyer to represent me. I am from al Qaeda. He is from America. He is my enemy, and we are at war." Mr. al Bahlul has been removed from the battlefield for quite some time, but he understands that we are at war with al Qaeda. We get comfortable in our everyday lives and we lose sight of the fact that that we are a nation at war. Folks ask me, "Are you concerned about your safety?" I read an ar- ticle last week that appeared on-line with the headline: Moe Davis, Chief Prosecutor and War Criminal. There are tens of thousands of young men and young women around the world who truly are in harm's way, so any risk that we face in prosecuting detainees pales in comparison to what the young men and young women who are performing duty all around the world face on a daily basis. So, I will talk just a bit, and I would like to keep this informal. I am here to try to answer any questions that you have. There is nothing off lim- its. I can tell you that there may be some things that I just can not answer, but no question is off limits. Please feel free to ask questions. I have a few remarks I want to go through, but the rest of the time is yours. I want to talk a little bit about the enemy we face. I will be honest with you, my level of knowledge about the War on Terrorism and al Qaeda, and about military commissions was probably about the same as any other member of the general public up until August of last year, when I got a tele- phone call asking if I would be interested in coming for an interview for the job that I am in now. My family had just moved. As Amos mentioned, he and I met in Montgomery, Alabama, of all places. I was in Montgomery, Alabama, until January of last year. In 2005, I moved to Cheyenne, Wyo- ming where I was the Staff Judge Advocate for 20th Air Force-the com- mand that controls all the intercontinental ballistic missiles that are in 2 United States v. al Bahlul, Military Commission Case No. 040003 (filed Nov. 4, 2005). A current record of developments relating to United States v. al Bahlul is available at http://www.defenselink.mil/news/commissions-exhibitsbahlul.html. CASE W. RES. J. INT'L L. [Vol. 37:537 Wyoming, North Dakota, and Montana. I had only been there for about six months when I got a call asking me if I could come for an interview in Washington. And I did. It was inconvenient for my family to have to move and set up a home in three different states in less than twelve months, but as an attorney, this is an historic opportunity that does not come along every day. Back in 2001 when the commission process first started, I volunteered to be on the defense side. I did that for a couple of reasons. One, I thought it would be tremendously unpopular to represent terrorists. Four years later I am finding I may have been wrong on that count, but at the time it seemed like it was going to be extremely unpopular to stand up and represent someone accused of engaging in terrorism.
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