[Debate] Former Guantanamo Chief Prosecutor: "A Pair of Testicles Fell Off the President After Election Day"

[Riaz K Tayob]

    Former Guantanamo Chief Prosecutor: "A Pair of Testicles Fell Off
    the President After Election Day"

Sunday 13 November 2011
by: Jason Leopold, Truthout | Report

Colonel Morris Davis, Former Chief Prosecutor Guantanamo Military 
Commissions. (Photo: Crimes of War 
<http://www.crimesofwar.org/about/staff/>)

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 [2008]," 
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 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 
<http://www.truth-out.org/former-guantanamo-chief-prosecutor-pair-testicles-fell-president-after-election-day/__doPostBack%28%27dnn$ctr700$View$pdfGrid$ctl02$lnkFiles%27,%27%27%29>, 
the alleged mastermind of the October 2000 bombing of the USS Cole, who 
is facing terrorism and murder charges, began earlier this week. 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 
<http://georgewbush-whitehouse.archives.gov/news/releases/2001/11/20011113-27.html> 
authorizing military commissions trials for terrorist suspects captured 
after 9/11 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 courts 
<http://www.huffingtonpost.com/2011/04/04/eric-holder-ksm-trial_n_844564.html> 
by withholding funding to hold trials. 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 
<http://www.whitehouse.gov/the_press_office/Statement-of-President-Barack-Obama-on-Military-Commissions/>. 


What is clear is that Obama succumbed to the pressure 
<http://www.truth-out.org/the-unmaking-a-campaign-promise-obama-and-military-tribunals57493> 
from Defense Department officials and Republicans in Congress, notably 
Sen. Lindsey Graham (R-South Carolina), to hold the tribunals. Moreover, 
when Obama announced the return of military commissions he had just 
endured a month of blistering attacks 
<http://www.truth-out.org/the-unmaking-a-campaign-promise-obama-and-military-tribunals57493>from 
Republicans and former Vice President Dick Cheney for releasing the 
infamous "torture memos" drafted by Bush administration lawyers John Yoo 
and Jay Bybee.

*Criticism Leads to Firing*

Davis resigned in protest as Guantanamo's chief prosecutor in October 
2007, because he said Bush administration officials politicized 
<http://www.truth-out.org/former-guantanamo-chief-prosecutor-david-hicks-war-crimes-charge-was-favor-australia/1311603758> 
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 
military commissions ended his military career. He was denied a 
meritorious service award because he was told he served dishonorably by 
speaking out about the tribunals.

Davis continued to publicly oppose the military commission process and 
he 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 defense, trade and foreign affairs 
division, after he wrote an op-ed in November 2009 for The Wall Street 
Journal and a letter to the editor published in The Washington Post that 
were highly critical 
<http://online.wsj.com/article/SB10001424052748704402404574525581723576284.html?mod=googlenews_wsj> 
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.'"

Davis sued <https://www.aclu.org/free-speech/davis-v-billington> 
Mulhollan and the Library of Congress, which oversees CRS, claiming they 
violated his First Amendment rights. A hearing in the case 
<http://www.washingtonpost.com/politics/whitehouse/appeals-court-hears-case-of-ex-gitmo-prosecutor-fired-from-library-of-congress-over-writings/2011/11/10/gIQASYj28M_story.html> 
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 said, "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."

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.

"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 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 defense 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.

*Show Trials*

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 were acquitted 
<http://www.aljazeera.com/indepth/opinion/2011/11/20111198958893651.html>.

Brig. Gen. Mark Martins 
<http://www.miamiherald.com/2011/09/25/2424442/report-pentagon-to-beam-war-crimes.html> 
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 aunveiled a new $500,000 
<http://www.mcclatchydc.com/2011/10/12/v-print/127049/guantanamo-inc-oops.html>military 
commissions web site <http://www.mc.mil/> 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 theater."

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," 
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 
<https://secure.wikimedia.org/wikipedia/en/wiki/Thomas_W._Hartmann>, who 
he said ordered him to use evidence obtained from torture in military 
commissions. Davis would not identitfy the cases.

The military commissions rules passed by Congress in 2009 prohibits the 
use of evidence obtained through torture and hearsay, 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 revivew 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 
<http://truth-out.org/filling-gaping-holes-wikileaks-guantanamo-detainee-files/1304691552>, 
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.

*Obama's Crimes*

Davis, now the the executive director of the Crimes of War Education 
Project <http://www.crimesofwar.org/about/staff/>, 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 
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 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 said.

*Inconsistencies*

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 
<http://www.canada.com/nationalpost/news/story.html?id=f7e618c1-c2bc-44fe-a54f-fb7b4fabaf3c>,"  
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 "murdrerer" 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.

Furthermore,just four months before he resigned as chief prosecutor 
<https://www.nytimes.com/2007/06/26/opinion/26davis.html?_r=1&oref=slogin&pagewanted=all>, 
Davis had prasied military commissions, stating in an op-ed published in 
The New York Times, "Guantanamo Bay is a clean, safe and humane place 
for enemy combatants, and the Military Commissions Act provides a fair 
process to adjudicate the guilt or innocence of those alleged to have 
committed crimes."

Davis said he's well aware comments he had previously made about 
"certain detainees" and the military commissions process under does not 
jibe with the statements he has made since he decided to publicly 
criticize the Bush and Obama administrations.

"People ask me all the time, 'were you lying then?' My answer is 'no.' 
That's what I believed at the time."

Now, Davis said he believes the rest of world will be "skeptical of our 
claim that the military commissions have suddenly gone from woeful to 
wonderful."

"So much for change you can believe in or for that matter change you'd 
even notice."

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<http://creativecommons.org/licenses/by-nc/3.0/us/>.
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