Fmr. Chief Guantanamo Prosecutor Says Military Commissions “Not Justice”
July 16, 2008
AMY GOODMAN: The first military tribunal conducted by the United States in more than half a century is scheduled to take place next week in Guantanamo Bay, Cuba. Salim Hamdan, who was once Osama bin Laden’s driver, was captured in Afghanistan in November 2001. The Bush administration has been attempting to bring him to trial through a special military commission ever since.
A federal judge is holding a hearing Thursday to decide whether to delay Hamdan’s trial and allow lawyers to continue challenging the legality of the commission system. A ruling in favor of Hamdan could bring the military commissions to a halt. The judge is also expected to take into account a new legal brief signed by hundreds of European legislators that supports Hamdan’s case and says his trial by military commission would cause “incalculable harm to the fabric” of international law.
The five-member commissions are made up of military officers and presided over by a military judge. During the proceedings prosecutors are allowed to submit evidence obtained through coercion. Hamdan’s lawyers have argued he was beaten and abused at Guantanamo and subjected to a program of systematic sleep deprivation that they said constitutes torture.
One of the most prominent figures to argue on behalf of Hamdan’s case was Air Force Colonel Morris Davis, the former chief prosecutor at Guantanamo. He resigned his position late last year in protest over what he said was political interference. In April, Colonel Davis testified as a witness for Hamdan and offered a harsh critique of the military commission system.
I spoke to Colonel Morris Davis yesterday, and I began by asking why he decided to resign as chief prosecutor at Guantanamo.
COL. MORRIS DAVIS: I resigned last October. It was a
combination of factors, but kind of, I guess, the final straw that
broke the camel’s back was when Deputy Secretary of Defense Gordon
England signed a memo on October the 4th that put me under the command
of then-DOD General Counsel Jim Haynes. Mr. Haynes—as you probably
know, he testified recently before a congressional hearing—was one of
the architects of the interrogation policy, what many people consider
to be torture. My policy as chief prosecutor had been that we would not
offer any evidence obtained by waterboarding, specifically, or any
other interrogation techniques that were unduly coercive. And then,
when Mr. Haynes became above me in the chain of command, and his view
on what constitutes torture and mine were significantly different, I
felt I couldn’t ensure full, fair and open trials, and I resigned—asked
AMY GOODMAN: What constitutes torture, Colonel Davis?
COL. MORRIS DAVIS: Well, that’s a tough—you know, there
are a variety of different definitions, and if you look at the
definition, it seems fairly simple. But when you try to apply it to
specific facts, it gets a little bit harder.
And actually, in my role as chief prosecutor, I really wasn’t
concerned about what constitutes torture. Defining torture really
focuses on holding accountable the person that’s administering the
technique. As the chief prosecutor, I was interested in prosecuting the
person making the statement. So, for me, it was really a question of
whether the information the person provided was reliable and
trustworthy and suitable for use in an American court of justice. So,
whether it constituted torture or not, in my mind, was really
irrelevant for purposes of what I was doing. It was a question of
reliability, not trying to assign accountability to the person
performing the technique.
AMY GOODMAN: Colonel Davis, I wanted to ask you about the
August 2005 meeting with the Pentagon general counsel who was put above
you now, Jim Haynes, the man who is now overseeing the tribunal process
for the Pentagon.
COL. MORRIS DAVIS: Well, let—if I could just interrupt.
Mr. Haynes resigned a few months ago. He’s now an attorney for Chevron
and is no longer with the Department of Defense. I believe that is a
step in the right direction, but there are a few more steps that are
AMY GOODMAN: Well, when he said to the nation, “We can’t have acquittals. We’ve got to have convictions.”
COL. MORRIS DAVIS: Right. Yeah, that was on October the
2nd of 2005. It was when I came to Washington for what I would describe
as a hiring interview. During that, Mr. Haynes brought up that these
trials, the trial of the al-Qaeda detainees, would be the Nuremberg of
our time. And I pointed out to him that, you know, at Nuremberg, not
everyone was convicted; there were some acquittals. And certainly, as a
prosecutor, you never go into court aiming for an acquittal, but I
said, in my view, if that did happen, that, at a minimum, it would tend
to validate the process, that these were fair trials.
And he kind of rocked back in his chair, and his eyes got big,
and it appeared to me that it was a thought he had never contemplated,
and that was when he said, you know, “Wait a minute, we can’t have
acquittals. We’ve been holding these guys for years. How are we going
to explain that? We can’t have acquittals. We’ve got to have
AMY GOODMAN: How about all these guys who have been held?
I think more than 700 have been held at Guantanamo. You’re now down to
under 300. You’re talking about hundreds upon hundreds of men—some were
boys when they came to Guantanamo—who were never charged and then
simply—after being held for what, one, two, three, four, in the case of
the Al Jazeera reporter Sami al-Haj, more than five years, held
ultimately more than six years by the US—just released?
COL. MORRIS DAVIS: Well, again, my part as the chief
prosecutor was focused on about seventy-five to eighty of the detainees
that we intended to prosecute.
I think one of the many confusing factors in this whole
situation has been, you know, the nation has an inherent right, that
goes back to the Treaty of Westphalia, to detain enemy combatants, to
keep them off the battlefield from causing harm today and tomorrow.
Prosecuting folks for violating the law of war is not really focused on
today and tomorrow; it’s holding people accountable for what they did
So, out of the group of detainees at Guantanamo Bay, there were
about seventy-five or eighty that we felt we had reliable evidence to
prove they had violated the law of war in the past and should be held
accountable, which is separate and apart from the other detainees who
were being held to keep them off the battlefield, which really, you
know, was not part of the group that I was tasked with, so I can’t
really speak to the other detainees.
AMY GOODMAN: Colonel Morris Davis, you’ve talked about
David Hicks, saying it was politicians who forced you to press charges
against the Australian. Explain his case and what happened to him.
COL. MORRIS DAVIS: Well, David Hicks, you know, as you
recall, I think a number of folks repeatedly referred to the detainees
as “the worst of the worst.” The only military commission case that has
been completed was a guilty plea in the case of David Hicks, the
Australian, who received a nine-month sentence. So the worst of the
worst got, in essence, a misdemeanor punishment and is now a free man
I know some folks who said, well, there’s no—you know, what’s
the proof that this was political pressure? If you look—Jim Haynes, as
I mentioned, was the DOD general counsel. He had been nominated by
President Bush for a seat on the Fourth Circuit Court of Appeals, and
his nomination was held up after the torture memo and the torture
policy came to light. Mr. Haynes pretty much had a hands-off policy the
first year I was in the job. But on January—I believe it was January 9,
2007, was the day that President Bush withdrew Mr. Haynes’ nomination
for the seat on the federal bench, and that was the day, for the first
time ever, Mr. Haynes called me up on a specific case and asked, “How
quickly can you charge David Hicks?”
If you look at it at that point in time, the only thing that was
in place was the Military Commissions Act. No one had been appointed as
the convening authority. There was no Manual for Military Commissions,
which is the thick book that lays out the elements of the offenses. So
the pieces were not in place to charge anyone, yet I’m getting a call
from the general counsel saying, “How quickly can you charge David
Hicks?” So, maybe that was just coincidence, but one thing I found in
dealing with Mr. Haynes and with the military commissions is things
rarely happened by coincidence.
AMY GOODMAN: Elaborate, please.
COL. MORRIS DAVIS: Well, as I said, you know, I get a
call from him asking how quickly I can charge David Hicks, when there’s
only one piece of the puzzle in place. That was the statute. My job as
chief prosecutor was—you know, when I swear charges, I forward them to
the convening authority for review before the charges are referred to
trial. Well, at that point in time, there was no convening authority,
so there was no one for me to send charges to, because no one had been
appointed to that position. The Manual for Military Commissions, to
charge someone, there are elements of the offense that the prosecution
has to prove, and those are laid out in the Manual for Military
Commissions. That document had not been published on January 9, 2007,
so I had no elements of proof to look at to determine what to charge
David Hicks with. Yet I’m getting a call from the general counsel
saying, “How quickly can you charge him?”
We eventually charged him on February 2nd, along with Omar Khadr
and Salim Hamdan. But again, if you look at the timing of it, Susan
Crawford, who is the convening authority, wasn’t appointed until, I
believe, February the 7th. So, here we are charging people five days
before there’s a convening authority to refer charges to, which I think
to a reasonable person just doesn’t make much sense.
Also, the regulation for trial by military commissions, which is
kind of the deep-in-the-weeds details on how the commissions are
conducted, wasn’t published until late April 2007, which was after the
David Hicks trial was completed. So we didn’t even have the regulation
written at the time we prosecuted David Hicks.
AMY GOODMAN: Colonel Davis, can you talk about your
decision, after your resignation, to return to Guantanamo last April to
argue on behalf of Salim Hamdan?
COL. MORRIS DAVIS: Yeah, and I hope it’s clear. I mean,
I’ve seen it reported a number of times that I testified on behalf of
Salim Hamdan. You know, I’ve seen the evidence against Mr. Hamdan, and
I have little doubt in my mind that he’s—as I think is well known, he
was captured with two surface-to-air missiles in the back of his car,
and the only thing flying in Afghanistan at that time were geese and
us. So I have little doubt about his guilt. And so, I don’t believe I’m
testifying for Salim Hamdan, but what I am testifying for is that Mr.
Hamdan and all of the detainees that will face military commissions are
entitled to a fair trial. And at this point in time, I have significant
doubt that they will get a fair trial, and that was why I was there to
I mean, I think that—you know, as the ruling turned out in the Hamdan case, the military judge entered a ruling that the things I said, the allegations I raised, were true, and he ordered Brigadier General Tom Hartmann, who’s the legal adviser to the convening authority, to be disqualified from the Hamdan case, because of him exerting unlawful command influence on me and the prosecutors. So I think that’s what we’ve got to get rid of. If we want to have a trial and call it military justice, then it’s got to be a fair trial.
AMY GOODMAN: Air Force Colonel Morris Davis. He was the
former chief prosecutor at Guantanamo, resigned late last year. He now
heads the Air Force Judiciary. We’ll be back with him in a minute.
AMY GOODMAN: We return to our conversation with Colonel
Morris Davis, the former chief prosecutor at Guantanamo Bay. I asked
him about a newly released government document that suggests officials
at Guantanamo tortured Salim Hamdan by depriving him of sleep for fifty
COL. MORRIS DAVIS: I am not familiar. I think I read
the same article you were just referring to that talked about the sleep
deprivation. I don’t recollect ever seeing that before. And I guess
it’s similar—I testified last in the Jawad case, which you may
have read about, where the defense alleged that he was subjected to
what they called a “frequent flyer program,” where for a period of
weeks he was moved from cell to cell on average about once every two
hours and fifty minutes around the clock. And again, I wasn’t aware of
So it appears that there are some things that are documented
that the government has access to that are just now coming to light. My
view is, you’ve got to know pretty much everything there is about the
case before you swear charges and take it into court. In the middle of
trial is not the time to be learning what the facts are, and that
appears what may be happening in this case.
AMY GOODMAN: Do you think sleep deprivation is torture?
COL. MORRIS DAVIS: I think it can be. I mean, again, you
know, defining torture is fairly easy until you try to apply it to
specific facts. And I think you really have to look at the specific
facts and the impact it had on the individual. But I think it’s
possible for sleep deprivation to rise to that level.
AMY GOODMAN: I wanted to ask about the call for you to
testify before Congress and, at the time, Jim Haynes saying that you
should not testify. What was his response when you were first ordered
COL. MORRIS DAVIS: Well, I never heard it from him. I—the
folks over on Capitol Hill from Senator Feinstein’s office that had
asked me to testify called me a couple of days before I was to appear
and said the Secretary of Defense office had notified them that I was
ordered not to appear and to testify, which again, I think, you know,
if you’ve read the news accounts, you know, the Department of Defense
has repeatedly denied things that I’ve said, despite a military judge
now finding as fact that the allegations I raised were true.
And I’ve repeatedly offered, from the time I resigned in October
through December, when I was invited to testify at Senator Feinstein’s
hearing, through my testimony here recently at Guantanamo Bay, I’ve
said repeatedly if Jim Haynes or General Hartmann or Ms. Crawford or
anyone else has any disagreement about my version of the facts, I’ll be
more than happy to take a polygraph to verify what I’m saying, if
they’ll take one to verify their version of the facts. And so far, no
one has ever taken me up on that offer. So I—you know, my commitment
has been to tell the truth, to try to do what I can to ensure that the
trials are fair. And it appears there have been a number of efforts to
keep me from having an opportunity to tell the truth.
AMY GOODMAN: What other efforts?
COL. MORRIS DAVIS: Which is—which again is, you know, if
you’ve read what the Secretary of Defense has said lately in the firing
of the Air Force chief of staff and the Air Force secretary, he said
military officers have to have the courage to speak blunt truth and
that the services need to be a little less thin-skinned and accept
criticism and find fault and be willing to address it when it comes to
their attention. And I think that’s what I’ve tried to do in this case,
is to tell the blunt truth, that if you’re going to wrap this under the
banner of military justice, then it needs to be a fair trial. And
what’s taking place now, I would call neither military nor justice, and
that needs to be fixed.
AMY GOODMAN: Colonel Davis, did you have any interactions
with or were you pressured by the Vice President’s office, by Vice
President Cheney, by his chief of staff David Addington?
COL. MORRIS DAVIS: No, I never had any contact with the Vice President or any member of his staff.
AMY GOODMAN: Let me ask you about the June 12th Supreme
Court decision that said these Guantanamo prisoners have to have their
day in a civilian court, the five-to-four ruling, marking the third
time in four years the Supreme Court ruled against the Bush
administration concerning the rights of Guantanamo prisoners. President
Bush was in Italy. He said he opposed the decision. Your response,
COL. MORRIS DAVIS: Well, I think it’s—it was a monumental decision. Again, if you go back and look at the chronology, when the Boumediene
case first got to the Supreme Court, if you recall, the Supreme Court
declined to hear the case. It was a couple of months later that they
reconsidered, which—I think that’s the only time in my lifetime that
the Supreme Court, on their own, has reconsidered and agreed to hear a
case it previously refused to hear.
And I think what you have to look at is what took place in the
interim, and that was when Lieutenant Colonel Abraham came forward, who
was a member of some of the CSRTs that met at Guantanamo Bay, and he
described that, you know, in some cases the evidence was flimsy; in
other cases, when the outcome wasn’t what was desired, they just kept
doing—they would have a redo until they got the right result. And I
think that caused—and again, I certainly have no personal knowledge,
but if you just look at the facts, it appears that the Supreme Court,
when they denied the case early on, they were willing to give deference
to the executive branch, and it was only after these new allegations
came up that suggested that maybe this process wasn’t as robust as it
had been billed that they reconsidered. So my take on their decision is
that it shows a lack of trust in the executive branch to ensure that
the folks detained are getting a meaningful review on whether they’re
being properly detained.
My personal opinion is, I think the decision is wrong. I don’t
believe the detainees—that foreign terrorists, whose only connection to
the Constitution is a sincere desire to destroy it, have constitutional
rights. So I disagree with the rationale. But if the result is that it
causes Congress and others to focus on the issue and come up with a
rational result, then I can live with the rationale, if it gets the
AMY GOODMAN: Jane Mayer’s book came out this week, The Dark Side.
And among her revelations is that the Bush administration revealed
warnings from the CIA six years ago that up to a third of the
Guantanamo prisoners may have been imprisoned by mistake. In 2002, a
CIA analyst concluded that many of the prisoners were essentially
bystanders who had been swept up in dragnets or turned over to the US
military by bounty hunters. What is your response, Colonel Davis?
COL. MORRIS DAVIS: My personal knowledge extends to the
seventy-five or eighty that we intended to prosecute, and those were
cases where our investigators had combed through the evidence and we
had a belief that we had reliable evidence to prove their guilt. So I
never really dealt in depth with the other detainees that were outside
that group. I mean, I think certainly there had been some cases—the
Uighurs are probably a prime example—that there was no evidence they
had any hostile intent towards the United States. So what percentages,
you know, were truly innocent? I don’t know. I can tell you, though,
the seventy-five or eighty we intended to prosecute, I personally
reviewed the evidence, and I think we have ample justification to
detain them and to prosecute them.
AMY GOODMAN: Do you think Guantanamo should be closed?
COL. MORRIS DAVIS: Well, that’s a tough question.
I—personally, I—you know, years ago, I used to be a bail bondsman, so
I’ve seen a lot of jails here in the United States, and I think there
are American citizens that are incarcerated right now, that, if they
could see the conditions at Guantanamo Bay, would be a little upset
with their conditions. The prison facilities at Guantanamo Bay are
based on existing US facilities, and I think it’s grossly misportrayed
in the media. You know, to this day, Camp X-Ray, which was open for
about a little over three months at the very start, when there are
stories about Guantanamo Bay, you still see pictures of Camp X-Ray,
even though it’s been closed for five years now.
I think the facility is a safe, secure, comfortable environment,
where the detainees are being—I think their medical care, I can tell
you, is much better than the medical care I receive. If they have a
stomach ache, they’re going to see somebody today; if I do, it might
take a week or two for me to get an appointment. So I think the
conditions—there is nothing wrong with the conditions at Guantanamo
I think the bigger problem, though, is it’s become such a black
eye for the country and there’s such a stigma attached to it that I
don’t know that there is anything you can do to rehabilitate that
image. So, perhaps it – again, that’s a policy decision, but even
though—you know, as I said, I think it’s a safe, clean, humane
facility. The stigma may necessitate shutting it down.
AMY GOODMAN: When you say it’s safe, I guess the question
is “safe for whom?” The idea that—I mean, the CIA is—all their research
on torture, on what’s the most effective form of breaking down a
personality, that it’s actually not ultimately, you know, physically
torturing, beating up a person, but isolating them. And you add to that
not knowing what will happen to you, being held for more than five
years without charge, the number of attempted suicides, and then some
of the real suicides.
COL. MORRIS DAVIS: Right. Well, I think, again, though,
if you compare the conditions there with the conditions that our own
citizens are incarcerated in here in the United States, I know if I was
given the choice, I would likely pick Guantanamo Bay. Is it ideal? No,
it’s not, but I think it is a grossly misportrayed environment. I think
most of the bad things you hear about are things that took place years
in the past, at least in my involvement, which began in late 2005 and
extended up through—I guess, last month I was down there. I have never
observed anything during that period that caused me concern. As I’ve
said, I’ve seen a lot of jails and a lot of prisons, and Guantanamo Bay
is grossly misportrayed.
AMY GOODMAN: It’s interesting that you should say look at
how it compares to prisons in this country. It might more be a comment
on prisons in this country.
COL. MORRIS DAVIS: Well, essentially, you know, when I go
out and talk to college students, I show a slide of a cell, and I ask
them, “What’s inhumane about this cell?” And sometimes they’ll say,
well, it’s kind of small, and it’s got a little bitty window, and, you
know, it just doesn’t seem that nice. Then I put up another picture of
another cell and ask, “OK, what’s wrong with this cell?” And they
usually point out it was identical to the first one. And I put them up
side by side and show them: the first cell is where Congressman Bill
Janklow served his sentence, and the second one is where Omar Khadr is
currently sitting today, and those two cells are identical.
AMY GOODMAN: In May of 2006, the UN Committee on Torture noted that indefinite detention constitutes, per se, a violation of the UN Convention Against Torture, so you don’t see that when you show the cell.
COL. MORRIS DAVIS: I don’t see that, you know, and—you
know, prior to the Treaty of Westphalia, if you were captured during
armed conflict, you generally were either executed or enslaved. Since
then, for the last several hundred years, we’ve—it’s been a recognized
principle of international law that you can detain the enemy for the
duration of hostilities, which by definition is indefinite detention.
So, no, I don’t see anything wrong with detaining the enemy during a
period of armed conflict.
AMY GOODMAN: Except the CIA is saying that perhaps up to
a third have been held mistakenly, not even enemy combatants, as Bush
has defined it.
COL. MORRIS DAVIS: Right. And that, I’ll agree with. I
mean, I—I guess I drank the Kool-Aid on that one, as well, believing
that the CSRT process and the administrative review boards were a
robust process where the individuals did get, you know, a significant
look at whether they were being properly detained. And I think that’s
what the Supreme Court has done in Boumediene, is say there’s
some doubt about the validity of that process and that these
individuals are entitled to some meaningful review. But I think if a
person gets meaningful review and they’re determined to be an enemy
combatant and we’re engaged in armed conflict, that we have the right
to detain them and keep them off the battlefield.
AMY GOODMAN: Do you think they got meaningful review at Guantanamo?
COL. MORRIS DAVIS: Well, it certainly appears that that’s doubtful in many cases. And again, I think that’s what the Boumediene
decision reflects, is some real doubt about the meaningfulness of the
review they got, which is regrettable. As I said, I think they’re
entitled to meaningful review, and if they’re prosecuted before a
military commission, I think they’re entitled to a fair trial. And I
think both of those things, at this point in time, are doubtful.
And I guess that’s one of the things that concerns me. You know,
both candidates have said, “Let’s close Guantanamo Bay.” And I don’t
think there’s much disagreement about that. The bigger issue, though,
is: and then what? And I really haven’t heard either side come out with
a firm opinion on what the answer is to the “and then what” question,
and I think that’s a critical issue that needs to be addressed.
AMY GOODMAN: You were the chief prosecutor at Guantanamo. How did you know how the testimony that was gotten from the prisoners was coerced?
COL. MORRIS DAVIS: Well, at least from what I saw,
whether it was the CIA or the Department of Defense or the FBI, whoever
questioned the individual documented thoroughly, you know, when it
started, what they did, who was present and what was said. There were
some cases where I—in my opinion, we went too far. And I think that’s
another distinction that’s lost on a lot of people. There is a
difference, in my mind, in what you can do to obtain intelligence
versus what you can do to obtain evidence to use in a criminal
proceeding. And some of the things that were done may have worked well
to obtain useful intelligence, but it crossed a line that made it not
useful as evidence in an American court of justice. And there were some
cases like that.
Waterboarding, to me, was a no-brainer. If you’re tying someone
down and inducing them to believe they can either talk or possibly die,
what they said may be useful for intelligence, but it has no place in
an American court of justice. And when I was there, we were not going
to use it. And I find it disturbing that to this day that the senior
leadership for the military commissions continue to say that it will be
up to a judge to decide. You know, the professional rules of conduct
for attorneys say a prosecutor cannot offer any evidence obtained by
illegal means. In my view, if you tie someone down and cause them to
believe they can either talk or die, that’s not evidence that a
prosecutor should be bringing into an American court of justice.
AMY GOODMAN: What other techniques do you think should not be used to get evidence?
COL. MORRIS DAVIS: Well, again, I think waterboarding, to
me, was an easy—a clear-cut example of being over the line. There were
some other techniques that were used that I’m not sure if they’re still
classified or not, so I can’t go into detail. But the Al Qahtani case was a good example. Prior to the transfer of the high-value detainees to Gitmo, the Qahtani
case, in my view, was kind of what we referred to as the dirtiest case,
as far as his treatment. He was never waterboarded, but the things that
were done to him, in my view, made anything he said in our custody
unreliable. So my direction to the prosecution was: build the case
without using anything he ever said. That doesn’t excuse what happened
to him in our custody, but that was a separate issue, if we could
AMY GOODMAN: What happened to him?
COL. MORRIS DAVIS: That, I can’t say. Again, I’m not sure
what’s classified and what’s not, and I just assume try to stay away
from a security violation. But that was a case where I thought we could
build a compelling case without using anything he ever said in our
So, again, there were a few cases—I think, in the public’s mind, they may think it’s every case at Guantanamo Bay. The ones I saw, it was a significant minority of the cases, where, in my opinion, we crossed the line and went too far, rendering what the individual said unreliable for use in an American court of justice.
AMY GOODMAN: Air Force Colonel Morris Davis. He was the former chief prosecutor at Guantanamo, resigned late last year. He now heads the Air Force Judiciary.
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