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.
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