by Jason Leopold
13 November 2011
Col. Morris Davis,
former chief prosecutor Guantanamo military commissions.
(Photo: Crimes of War)
Morris Davis speaks bluntly about some of President Barack Obama's policy
"There's a pair of testicles somewhere between the Capital Building and the
White House that fell off the president after Election Day ," said
Davis, an Air Force colonel who spent two years as the chief prosecutor of
Guantanamo military commissions, during an interview at his Washington DC
office over the summer and in email correspondence over the past several
"He got his butt kicked. Not just with Guantanamo but with national
security in general. I'm sure there are a few areas here and there where
there have been 'change,' but to me it seems like a third Bush term when it
comes to national security."
Davis is "hugely disappointed" that Obama reneged on a campaign promise to
reject military commissions for "war on terror" detainees, which human
rights advocates and defense attorneys have condemned as unconstitutional.
The first military commission initiated by the Obama administration got
underway earlier this week with the arraignment of Abd Rahim al-Nashiri, the
alleged mastermind of the October 2000 bombing of the USS Cole, who is
facing terrorism and murder charges.
If convicted, Nashiri, one of three
so-called high-value detainees that the Bush administration admitted was
subjected to the drowning technique known as
waterboarding and other brutal
torture methods at CIA black site prisons, could be executed.
George W. Bush signed
an executive order
authorizing military commissions
for terrorist suspects detained at Guantanamo ten years ago today.
recalling a speech Obama gave during an August 2007 campaign stop at the
Wilson Center in Washington, said it seemed
Obama was on track to make good
on his campaign promise of halting the discredited tribunals.
"I will reject a legal framework that does
not work," candidate Obama said.
"I have faith in America's courts and I have
faith in our [Judge Advocate Generals]... As president, I will close
Guantanamo, reject the Military Commissions Act and adhere to the Geneva
Our Constitution and our Uniform Code of
Military Justice provide a framework for dealing with the terrorists...
Our Constitution works. We will again set an example for the world that
the law is not subject to the whims of stubborn rulers and that justice
is not arbitrary."
Davis shakes his head.
"What happened to that guy?" Obama "has now
embraced and kissed on the lips the whole Bush concept [of military
commissions]. He failed to keep a single promise he made in that
Listen to Col. Morris Davis discuss these issues
on The Peter B. Collins Show:
A White House spokesman declined to comment for this story.
Obama issued an executive order immediately after he was sworn into office
halting military commissions at Guantanamo while he set up a task force and
ordered a review of the more than 200 cases there to determine who should
face criminal prosecution as part of a larger effort to permanently close
the facility by a self-imposed January 2010 deadline.
On May 15, 2009, following months of political pressure, Obama announced
that his administration would resurrect the military commissions he promised
three-paragraph statement issued after he
made the announcement, Obama said,
''Military commissions have a long tradition
in the United States."
Criticism Leads to
Davis resigned in protest in October 2007, because he said Bush
politicized the high-profile military commissions
cases of alleged 9/11 conspirators and al-Qaeda members he was gearing up to
Turning his back on the military commissions
process ended his military career. He was denied a meritorious service award
because he was told he served dishonorably by speaking out about the
Davis continued to publicly oppose the military commission process after his
resignation and, more recently, he has also criticized the Obama
administration for refusing to hold accountable key Bush officials who
implemented a policy authorizing the torture of "war on terror" detainees.
But, as Davis discovered, it's no safer criticizing a Democratic
administration's policies than it was when a Republican was in the White
Indeed, two years ago, Davis was fired from the nonpartisan Congressional
Research Service (CRS), where he began working in December 2008 as the
assistant director of the defense, trade and foreign affairs division, after
he wrote an op-eds for The Wall Street Journal and The Washington Post that
highly critical of military commissions and the decision the Obama
administration made to sidestep federal courts in favor of the flawed
tribunals for some alleged terrorists.
CRS Director Daniel Mulhollan, who fired Davis, said he,
"failed to adhere to the CRS policy on
Outside Speaking and Writing," showing "poor judgment and discretion...
not consistent with 'acceptable service.'"
sued Mulhollan and the Library of
Congress, which oversees CRS, claiming they violated his First Amendment
hearing in the case was held earlier this week.
Davis said he's,
"optimistic that by 2018 I will be
reinstated to my former position."
"On Veteran's Day, it [was] two years since I wrote the Wall Street
Journal op-ed and we're not even at the discovery stage yet," Davis
said. "The wheels of justice grinds fine, but it grinds slowly."
"Broken Beyond Repair"
While Davis is one of the most visible and verbal critics, he's not the only
military prosecutor who has been outspoken about Obama and Bush's detainee
Lt. Col. Darrell Vandeveld is a former military commissions
prosecutor who also resigned in protest.
In 2009, after Obama embraced the legal
framework he rejected as a presidential candidate, Vandeveld testified
before Congress, stating,
"the military commission system is broken
"The military commissions cannot be fixed, because their very creation -
and the only reason to prefer military commissions over federal criminal
courts for the Guantanamo detainees - can now be clearly seen as an
artifice, a contrivance, to try to obtain prosecutions based on evidence
that would not be admissible in any civilian or military prosecution
anywhere in our nation," Vandeveld said.
Davis believes Obama knows what the right thing
to do is.
"But let's face it, this is all about
politics," Davis said. "Nobody is going to get reelected in 2012
campaigning on standing up for the rights of detainees. Nobody wants to
be seen as being soft on terrorism."
One of the fundamental questions that has yet to
be answered in the debate over the merits of military commissions, Davis
noted, is what is the source of the rights for the detainees facing trial?
"If it's the Constitution, then a military
commission is deficient and it would require a court-martial or a trial
in federal court to pass constitutional muster," Davis said.
"If the basis is in the Geneva Conventions,
then a military commission - one run by the military without political
interference - could meet the requirement."
Davis said the changes to the Military
Commissions Act (MCA) Congress passed in 2009 is far from a major
improvement over the October 2006 law, which was passed in response to a
landmark Supreme Court decision that struck down as unconstitutional the
military tribunal system Bush set up after 9/11.
"The biggest change [in the 2009 law] was
the hearsay rule," Davis said.
"Under the 2006 Act, hearsay about a
detainee's activities could be offered by the prosecution and the burden
was on the detainee to show that it was unreliable. In the 2009 version,
the party offering the statements obtained from hearsay has to prove
that itís reliable. In other words, they shifted the burden of proof.
Itís 1/100th of a change from what was previously in place and Obama
held that up as a major improvement."
But, Davis said, after a decade,
"failure and fumbling, it's no longer a
question of whether we could do military commissions or could keep Gitmo
open; the question is should we?"
"I think Gitmo and military commissions have become too toxic in the
public psyche to ever regain credibility," he said. "I believe we need
to abandon both and rely on our traditional prisons and traditional
"Nuremberg of Our
That's a radical departure from Davis's previous stance as one of the
leading advocates of military commissions. Indeed, in June 2007, four months
before his resignation, Davis wrote an op-ed for The New York Times calling
the military commissions process at Guantanamo "fair" and "transparent."
"I did at one time have tremendous
confidence in the military commissions and the people who were selected
to preside over the process," Davis said. "But it was politicized by the
Bush administration who had no respect for the rule of law."
Davis said he "answered a service-wide call for
volunteers" sent out by the Bush administration in early 2002 for military
lawyers to handle terrorist cases at Guantanamo because,
"I was concerned about what I was seeing"
and that he "initially volunteered to be chief defense counsel" for
"The law was clearly being undermined by the Bush administration," Davis
"All of a sudden 9/11 comes along and we do
everything we can to avoid the law. For example, picking Guantanamo to
hold detainees was thought of as the perfect law-free site. I knew it
was a hugely unpopular effort defending terrorists in the wake of this
terrible atrocity but I felt it was important that somebody was on hand
to do it right."
The job of chief defense counsel, however, went
to Col. Will Gunn, who is now the general counsel for the Veterans
Still, Davis said when he accepted the position
of Guantanamo's chief prosecutor three years later he brought with him,
"the same attitude that we needed to do this
But Davis was quickly put into his place.
He recalls being told by Pentagon General Counsel William "Jim" Haynes
during a meeting in Haynes' office in the summer of 2005 that,
"these trials are going to be the Nuremberg
of our times."
"I told Haynes, 'at Nuremberg not everyone was convicted,'" Davis said.
"'There were some acquittals.'Davis said
Haynes', "eyes got big and he leaned back in his chair."
"'Acquittals!'" Haynes said, according to Davis, "'we can't have
acquittals! We have been holding these guys for years. How are we going
to explain to world we have been holding these guys for this long if we
don't have convictions? We have to have convictions!'"
Davis said it was then that he understood,
"the mindset of the Bush administration was
that we had to through the motions of having trials and ensure there was
a preordained outcome."
Haynes, now the chief counsel for Chevron Corp.,
did not return phone calls or emails seeking comment.
Under Obama, a "preordained outcome" is still the expectation for terror
suspects facing a military commission as evidenced by the fact the
administration has signaled that Nashiri
could still be detained even if he
Brig. Gen. Mark Martins is the
new chief prosecutor at Guantanamo. Davis
noted he is the sixth chief prosecutor in eight years.
During that time, there have only been six
"I don't know Brig. Gen. Martins, but it
usually doesn't bode well when a team is on its sixth quarterback in
eight years," Davis said. "Who knows, perhaps the sixth time is the
In an effort to sell its revamped version of
military commissions to the public, the Pentagon aunveiled a new
military commissions web site last month, which boasts the banner, "Fairness
- Transparency - Justice."
"There was a time when the world might have
believed the slogan, but that was years ago," Davis said. "Now, the
[Department of Defense] may as well throw in a box meal and call it
Davis added that the administration's claims of
"fairness" were undercut when it released the rules for Nashiri's trial only
two days before it was set to begin.
"In April 2010, on the eve of [Canadian
detainee Omar] Khadr's [war crimes] trial, the Defense Department
published the Manual for Military Commissions," Davis said.
"To some, it was like the NFL saying 'oh, by
the way, here's the rule book for the game' after the players were
already lined up for the kickoff and just waiting for the whistle to
blow. At least this time they managed to publish their new rules two
days before Nashiri's trial."
Looking back over the past decade, Davis said,
there has been a,
"presidential military order, two acts of
Congress, a DoD directive signed by the Secretary of Defense, seven
military commission orders signed by the Secretary of Defense or Deputy
Secretary of Defense, 15 commissions instructions signed by Haynes,
three appointing authority instructions, 19 presiding officer
memorandums, two Manuals for Military Commissions, two Regulations for
Trial by Military Commission, a Military Commission Trial Judiciary
Rules of Court, and Rules of Practice for the Court of Military
Commission Review with two amendments."
"Now Nashiri goes to court under rules that have again been modified,"
"Each time whoever is in charge says this
time it's fair. I think it's a problem that's inherent when you begin
with the premise that the whole operation is outside the reach of any
law. It takes some craft lawyering to try to slap a veneer of fairness
"One of the Dirtiest
Cases" of Torture
During his tenure, Davis butted heads with Haynes and appointees in the
Office of Military Commissions over their insistence that he use evidence
obtained through torture in cases he was working on, which he said he
refused to do and which ultimately led to his resignation.
"I was told 'President Bush says we don't torture so what makes you think
you have the authority to say we do?'" Davis said, recalling a conversation
he had with Brigadier Gen.
Thomas W. Hartmann, formerly the legal adviser to
the convening authority for military commissions, who he said ordered him to
use evidence obtained from torture in military commissions.
Davis would not identify the cases.
The military commissions rules passed by Congress in 2009 prohibits the use
of evidence obtained through torture, but the fact that Nashiri was tortured
by CIA interrogators will likely be used to challenge the government's
evidence against him.
Davis said in his review of detainee files he saw documented evidence of
"Pretty much every document I saw laid out
what was taking place" during interrogations, Davis said. "I don't
recall seeing any document that didn't detail the [interrogation]
methods being used."
Davis said he also discovered that at least one
detainee was "disappeared." When he inquired about the detainee's
whereabouts with a Guantanamo intelligence official he was told he did not
have a "need to know."
A Defense Department spokesperson did not return calls for comment.
Davis said one of the "dirtiest cases" he saw and was personally involved in
was that of alleged 20th 9/11 hijacker Mohamed al-Qahtani.
"I never got to meet him," Davis said. "But
there was another lawyer who was in the office a lot longer than me who
did and he said, '[interrogators] fucked with him so bad he's crazy as a
shithouse rat.' This guy did not want to touch the Qahtani case. He
thought Qahtani was pushed past the point of being mentally competent."
Emails released several years ago by the FBI
under the Freedom of Information Act describe
Qahtani's torture, which took
place at Guantanamo and was sanctioned by former Secretary of Defense Donald
In January 2009, Susan Crawford, the retired judge and a close confidant of
Dick Cheney, who, until last year, was the convening authority for military
commissions at Guantanamo, said al-Qahtani's interrogation met the legal
definition of torture and, as a result, she would not allow a war crimes
tribunal against him to proceed.
Davis, now the the executive director of the
Crimes of War Education
Project, a nonprofit organization that seeks to raise awareness of the
laws of armed conflict worldwide, said the admission by Crawford should have
immediately led to an investigation under the Convention Against Torture.
But "the Obama administration was whistling
by the graveyard on that one and pretended like nothing happened."
"We're a party to the Convention Against Torture and clearly we tortured
people," Davis said, angrily.
"There is an affirmative duty under the
convention to investigate and prosecute. It doesn't say when it's
convenient or when you get around to it or if it's not politically
detrimental to your administration. It says it's a duty. And it also
says, in addition to prosecuting people that were tortured the person
that is the victim has to have a right to compensation and the Obama
administration refuses to investigate and prosecute the allegations of
But when the victims go to court to try and
get civil remedies they're entitled to under the Convention Against
Torture the Obama administration asserts the state secrets privilege to
knock them out of court."
Davis said former Vice President Dick Cheney,
his daughter Liz Cheney and the vice president's former counsel, David Addington,
"did a very effective job pandering to fear
by claiming the detainees we're still holding are the 'worst of the
worst.' That's the narrative that was sold."
"They painted this picture that I think the public to this day still
buys and as a result a large section of the population says 'screw them,
keep them at Guantanamo,'" Davis said.
"It's unfortunate, but 99 percent
of the public could care less about these issues."
Davis said he's not sure, at this point, if the
country would be prepared,
"if one day somebody in this administration
decided to launch an investigation and prosecution of the Bush officials
who implemented these [torture and detention] policies."
"But I'll tell you this, if we're not going to do it then we need to
repudiate the ratification of the Convention Against Torture and stop
being hypocrites," Davis said. "Here you have an administration
lecturing countries like Iran and Libya on human rights. How do you,
with a straight face, lecture other people when we do the exact same
thing? We're great at preaching but not practicing."
Obama established a "terrible precedent" by
stating publicly that he was only interested in looking "forward," a
decision that has,
"undermined whatever moral authority we had left," Davis
Although Davis appears to be an advocate for the detainees who have been
tortured while in custody of the US government, his comments over the years
have been inconsistent.
Most notably, in 2006, Davis remarked that the sympathetic portrayal of
Canadian Omar Khadr by the then-teenager's defense counsel was "nauseating,"
and he dismissed as a defense strategy allegations at the time that Khadr
had been tortured physically and psychologically.
Davis referred to Khadr as
a "terrorist" and "murderer" during a news conference and told the media at
the time that members of al-Qaeda and the terrorist organization's
sympathizers were taught to lie about being tortured in order to win public
Khadr, whose war crimes charges Davis had personally approved, was the first
"child soldier" to be prosecuted by military commission since World War II.
Khadr was a teenager when he was captured in Afghanistan in July 2002 and
charged with killing a US medic after he tossed a grenade at him. In a plea
deal hammered out with military prosecutors last year, Khadr pled guilty to
five terrorism-related charges including murder in violation of the laws of
Davis said he's well aware his comments about "certain detainees" and
military commissions while he was working as chief prosecutor does not jibe
with the critical statements he has made after he resigned.
"People ask me all the time, 'were you lying
then?' My answer is 'no.' That's what I believed at the time."
What Davis believes now is that the rest of
world will be skeptical of the claim that military commissions have,
"suddenly gone from woeful to wonderful."
"So much for change you can believe in," Davis said. "Or for that matter
change you'd even notice."