Fmr. Chief Guantanamo Prosecutor Says Military Commissions “Not Justice”

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 to resign.


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 necessary.


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 convictions.”


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 yesterday.


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 in Australia.


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 testify.


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.

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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 days.

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 that, either.


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 to?


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, Colonel Davis?


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 right result.


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 Bay.


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 prove—


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 custody.


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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