The Prosecutor

Morris Davis was the third Chief Prosecutor of the Guantánamo military commissions. His job was to direct the efforts to prosecute the detainees.

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10 November 2014, 10:00am

Camp X-Ray illustration by Molly Crabapple

There are two loud voices in the Guantánamo debate. For outraged liberals eager to feed their confirmation bias, the detention camp isn't viewed as an aberration, but something you'd expect from a habitually unjust US government. Meanwhile, the conservatives who defend it tend to argue that the detainees are terrorists, and thus have surrendered their rights to fair treatment.

For Morris Davis, it was never supposed to be this way. Davis – a decorated US Air Force lawyer from Shelby, North Carolina – was the third Chief Prosecutor of the Guantánamo military commissions. His job was to direct the efforts to prosecute the detainees. He told me that when he started in September of 2005, "I wanted [America] to be able to carry out this process in a way that would make our grandchildren look back on Guantánamo in the same way we look back on Nuremberg. People of my generation have a fantasised view of Nuremberg – it may not be entirely accurate, but it's at least perceived as being an incredible accomplishment."

As we all know, things didn't quite pan out that way for GTMO.

By October of 2007, Davis had resigned from his position, citing the use of evidence that had been obtained through torture. "The guy who said 'waterboarding is A-OK', I was not going to take orders from," he explained at the time. "I quit."

I asked him when his doubts set in. "In the first two years I was there, I believed that we really were committed to doing things in a credible way," he said. "It was only after that I realised that was highly unlikely and chose to resign."

Despite Davis' reasons for quitting, he maintains that Guantánamo itself was a model prison. "I think there are a lot of Americans who are incarcerated that would be happy to trade places with those in Guantánamo. The physical facilities – in terms of the structure, the food, the medical care – far exceed 99 percent of the jails and prisons here in the US," he said. "If you mention Guantánamo, what people picture are the images that came out of Camp X-Ray – the detainees in orange jumpsuits kneeling, and what looked like dog cages. That facility was open from January to April of 2002. Camp X-Ray has been closed for more than 12 years now. The facilities don't resemble anything like Camp X-Ray."

He also maintains that only three Guantánamo detainees were ever waterboarded – and, crucially, that this was done at CIA " black sites", rather than at the camp. "It's not Guantánamo itself that's the problem," he said. "It's the underlying legal architecture that has to be addressed."

Morris Davis

The problem with that architecture, according to Davis, was that political appointees held too much sway. He says the Bush government was keen to get convictions, and its yes men were happy to accept dodgy evidence to that end. Davis wrote an op-ed in the LA Times where he stressed that "it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the 'convening authority' – a title with no counterpart in civilian courts – was not living up to that obligation." (A "convening authority" is a central figure in the military justice system, and has responsibilities for organising court-martials. Concerns were raised by Davis and others that at Guantánamo, this role was susceptible to political manipulation.)

For Davis, the problems began with the departure of Major General John Altenburg, who resigned in November of 2006, five months after the Supreme Court decided that the detention camp was illegal in  the Hamdan v. Rumsfeld case. "He was a career military officer who, in my view, was committed to upholding the reputation of military law and military lawyers," Davis told me. In his view, Major Altenburg's replacement was inferior: "Susan Crawford, who had never worn a uniform in her life, replaced him. She was a political appointee, a protégé of Dick Cheney, the Secretary of Defence... I think that was when things began to take a different turn."

The bad appointments kept coming. "In the spring of 2007, General Tom Hemmingway, who was a legal advisor for the Attorney General, also chose to retire," Davis explained. "Again, he'd been a career officer who came out of retirement to take the job. When he left, he was replaced by another general officer in the reserves [Thomas W. Hartmann]. In his regular life, he was a corporate attorney who was a part-time military officer." He also wrote of his objections to being placed "in a chain of command under Defense Department General Counsel William J. Haynes", aka "Waterboard Willie", who had authorised the use of interrogation techniques at Guantánamo that some would consider torture.

Davis suggested that these new appointments pursued politically motivated convictions based on dodgy evidence. "The corporate attorney came in and said, 'All that evidence and information that you set aside, you need to get dusted off and put into court and get these cases going and get convictions.'"

He cited the example of David Hicks, an Australian who was caught in Afghanistan in 2001. After languishing in Guantánamo for five-and-a-half years, he was charged and given a seven-and-a-half-year sentence in 2007, all but nine months of which were suspended. He was convicted months before an Australian election, which gave Davis the impression that it was a political concession to then Australian Prime Minister, John Howard. Hicks' treatment had been an embarrassment for Howard, with Australians wondering why their compatriot had been held in GTMO for so long without charge. The fact that he was also given an 18-month media gag only served to fuel accusations of a politicised sentencing.

According to Davis, his conviction "was clearly a political accommodation to Howard for his support of the US. It had nothing to do with justice; it was all about politics." At the time, Howard said, "We did not impose the sentence – the sentence was imposed by the military commission and the plea bargain was worked out between the military prosecution and Mr Hicks's lawyers, and the suggestion [...] that it's got something to do with the Australian election is absurd."

"We had identified about 75 detainees as ones who potentially could be prosecuted, but 'could be' did not necessarily mean 'should be'."

Despite the efforts to expedite prosecutions, Davis said that most of the politicised convictions still couldn't be secured: "We had identified about 75 detainees as ones who potentially could be prosecuted, but 'could be' did not necessarily mean 'should be'. It meant that we had reviewed the information that the Criminal Investigation Task Force had assembled on individual detainees and determined that there was some credible evidence that could support a potential charge in roughly 75 cases."

What would have happened had they been charged?

"The majority would've been charged with providing 'material support' for terrorism. The US Court of Appeals in DC held in the Hamdan case that 'material support' was not a valid law of war offence that was subject to trial before a military commission. So, in the end, we would have charged most of the 75 with a war crime that wasn't really a legitimate war crime."

This has left the detainees of Guantánamo falling into three categories: those who should stand trial; those who should be set free; and those in indefinite detention thanks to the lack of evidence needed to mount a trial. For Davis, the solution is to "get rid of that third category of indefinite detention" and make sure everyone is either "to be prosecuted" or "to be transferred".

Despite the declining population, Davis doesn't think closing GTMO would solve the issue. "During the 2008 election, it was kind of the bumper sticker slogan, you know: 'Close Guantánamo'. Which, in my view, is not the solution. [The problem is] the underlying legal basis for creating Guantánamo to begin with. If you don't address that, then closing Guantánamo is just moving the detainees somewhere else. You know, at one point, early in President Obama's administration, there was a plan to move the detainees to a prison facility in Illinois. And all you've done then is just create a new Guantánamo."

Whether the Guantánamo commissions were ever going to be fair and just is a contentious issue. The Supreme Court had ruled that the commissions contravened the Geneva Convention, meaning they had to be modified in 2006, before the political appointments that Davis identifies were made.  Nevertheless, it's easy to forget that, for a while, they were run by people who at least believed in the idea of fairness and objectivity, and were working toward those aims—even if today Guantánamo Bay is often seen as an emblem for something completely different.

@simonchilds13