As 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, we speak with 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. We speak with Col. Davis about his decision to step down, torture at Guantanamo, and more. “If you’re going to wrap this under the banner of military justice, then it needs to be a fair trial,” Col. Davis said. “What’s taking place now, I would call neither military nor justice.”
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.
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