Why has President Barack Obama reneged on a campaign promise to reject military commissions for "war on terror" detainees? Jason Leopold reports.
Morris Davis speaks bluntly about some of President Barack Obama's policy decisions.
"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 months. "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 defence 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. Davis, 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 Conventions ... 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 speech."
A White House spokesman declined to comment for this story. In the past, administration officials, including Attorney General Eric Holder, have blamed Democrats and Republicans in Congress for thwarting the government's efforts to prosecute terrorist suspects in federal court by withholding funds that would allow the government to transfer detainees to the US to face trial. While that is true in the case of self-professed 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators, it does not explain the decision Obama made in May 2009--four months after he was sworn in as president--to resurrect military commissions.
Criticism Leads to Firing
Davis resigned in protest in October 2007, because he said Bush administration officials politicized the high-profile military commissions cases of alleged 9/11 conspirators and al-Qaeda members he was gearing up to prosecute. 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 dishonourably by speaking out about the tribunals.
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 House.
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 defence, trade and foreign affairs division, after he wrote an op-eds for The Wall Street Journal and The Washington Post that was highly critical of military commissions and the decision the Obama administration made to sidestep federal courts in favour 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.'"
Davis sued Mulhollan and the Library of Congress, which oversees CRS, claiming they violated his First Amendment rights. A 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 policies.
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 beyond repair."
"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 re-elected 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 it’s reliable. In other words, they shifted the burden of proof. It’s 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 courts."
"Nuremberg of Our Times"
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 defence counsel" for detainees.
"The law was clearly being undermined by the Bush administration," Davis said. "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 defence counsel, however, went to Col. Will Gunn, who is now the general counsel for the Veterans Administration. 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 right."
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 signalled that Nashiri could still be detained even if he were acquitted.
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 trials.
"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 charm."
In an effort to sell its revamped version of military commissions to the public, the Pentagon unveiled a new $500,000 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 dinner theatre."
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 kick-off 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," Davis continued. "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 on that."
"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 torture.
"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 Rumsfeld.
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 executive director of the Crimes of War Education Project, a non-profit 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 torture. 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 per cent 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 said.
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 defence counsel was "nauseating," and he dismissed as a defence 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 sympathy.
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 war.
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 sceptical 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."
(This story was originally published in Truthout on 13 November 2011 and has been republished under a Creative Commons licence.)