Today, the Daily Times in Pakistan has published an interview with Colonel Morris Davis, conducted by political analyst Ali Kamran Chishti. The interview is of interest for Col. Davis’ explanation of how Guantánamo operated as an illegal “intelligence squeezing” center, and for his description of the prison as “an embarrassment to the United States.” For Pakistani readers, and those interested in Pakistan’s relationship to the US, the interview is also fascinating for Col. Davis’ assertion that the ISI (the Inter-Services Intelligence directorate, Pakistan’s largest, and most controversial intelligence agency) was involved in negotiations regarding proposed trials for prisoners, but that the Pakistani government was not informed about these discussions.
It is also of interest because of Col. Davis’ thoughts on US policy in Afghanistan and Pakistan, and on the use of drones, and also because he reiterates that he resigned as the chief prosecutor of the Military Commission trial system at Guantánamo in October 2007, “because I did not believe we would provide full, fair and open trial for the detainees we intended to prosecute.”
Col. Davis has previously explained that his resignation was triggered when he was placed in a chain of command under Pentagon chief counsel William J. Haynes II, who was implicated in the development of torture as part of Dick Cheney’s “War Council,” and I was impressed by how, in the interview, he described the importance of observing the rule of law:
There were too many people trying to manipulate the trials and a few people trying to pressure me to use evidence that was unreliable because it was the produce of undue coercion. I couldn’t in good conscience be a part of that. I was just one of the many who had the common sense and common decency to recognize that there’s a line between right and wrong, and the courage to stand up for what’s right.
I was also pleased to note that Col. Davis followed up on this statement by hinting that the actions of his superiors may have constituted illegal actions, and that they may one day face prosecution: “I hope the world will come to see that despite a few bad people in the US government who made bad decisions — decisions that may even be criminal — there were many of us who believed in the sanctity of the rule of law.”
I must point out, however, that I don’t agree with all of Col. Davis’ assessments. Even if “The facilities [at Guantánamo] are clean, they are safe, they are not over-crowded, the food is good and the medical care is better than I got when I was in the military,” as Col. Davis asserts, which still seems to be open to dispute, this is not adequate compensation for being held in a uniquely open-ended form of arbitrary detention that is ruinous for the prisoners’ mental health.
Moreover, on his position regarding the three questionable suicides at Guantánamo on June 9, 2006, I also have doubts. Col. Davis states that the men in question were insignificant, and that “None of them had been among the detainees who instigated trouble with the guard force.” While the former assertion is correct, in terms of how they were perceived as terrorist suspects, the second is not, because all three men had been profoundly troubling to the authorities, as long-term hunger strikers who persistently stood up for the rights of their fellow prisoners.
In addition, Col. Davis states that, because of the timing — with an important Supreme Court ruling imminent (Hamdan v. Rumsfeld), as well as the scheduled arrival of 14 “high-value detainees” from secret CIA prisons — “the personnel at Gitmo had no reason to arbitrarily murder three nobodies; instead they had every reason to be on their best behavior.”
I’m uncertain about this timing, in that I’m not sure that the decision to transfer 14 “high-value detainees” into Guantánamo (who arrived in early September 2006) was taken until after the government lost Hamdan v. Rumsfeld on June 29, 2006, when the Supreme Court found that the administration did not have the authority to establish the Military Commission trial system at Guantánamo without Congressional approval, because it did not comply with the Uniform Code of Military Justice and the Geneva Conventions, and the government then panicked about its secret CIA detention program.
In any case, another reason for doubting Col. Morris’ assertion about the behavior of the military personnel at Guantánamo in June 2006 is that, if the men were killed on June 9, 2006, it was as a result of the activities of agents outside the military’s command — the CIA, or perhaps the Joint Special Operation Command (JSOC), the shadowy organization that was recently implicated in reports of torture in a secret prison at Bagram, Afghanistan — and the military only became involved because a cover-up was required.
Nevertheless, it is always good to hear from Col. Davis, whose principled stand against the Bush administration’s attempts to convict Guantánamo prisoners in show trials using information derived from torture ensures that he, and five other prosecutors who resigned (including Lt. Col. Darrel Vandeveld, whose resignation in September 2008 also had a major impact), will always be remembered as principled public servants who chose to uphold their loyalty to the Constitution over the unprincipled demands of a President who was more interested in the exercise of unfettered executive power.
Gitmo detainees were exploited for intelligence
The Daily Times, Pakistan, June 28, 2010
Pakistan-based political analyst Ali Kamran Chishti recently interviewed former Guantánamo Bay prison chief prosecutor Colonel Morris Davis. The following is the transcript of the talk.
Ali Kamran Chishti: Tell us about yourself.
Colonel Morris Davis: I am 51 and grew up in Western Carolina in the US and attended college and law school there. I joined the US Air Force in 1983 and served there for 25 years as an attorney. I was Chief Prosecutor for the Military Commissions at Guantánamo Bay, Cuba from September 2005 to October 2007.
Ali Kamran Chishti: How many prosecutors worked at Gitmo?
Colonel Morris Davis: I was head of a multi-agency Prosecution Task Force (PTF) that fluctuated in size over time. When I resigned in October 2007 there were about 110 people detailed to the PTF on a full or part-time basis including attorneys, paralegals, intelligence analysts, law enforcement agents and support personnel from the Department of Defense, Department of Justice, CIA, FBI and other federal agencies.
Ali Kamran Chishti: So what did you do as chief prosecutor and did you have direct access to detainees?
Colonel Morris Davis: Probably the best analogy is to the role of a head coach of a sports team. I assigned team members, monitored their progress, provided guidance on their preparations, ensured they had the resources they needed and made sure everyone understood the rules and followed them. The law enforcement members of PTF (CIA, FBI etc.) had more direct access to the detainees. The PTF did have access to the detainees, which was necessary in order to prepare cases for trial, and we interviewed many of them in detail. I interviewed directly with two detainees.
Ali Kamran Chishti: Great! So you had the prosecution team at Gitmo but did you have a defense team too?
Colonel Morris Davis: I believe an ample number of very capable and qualified defense attorneys, both military and civilians, were and are committed to the defense effort. And I believe they did a fine job of keeping the military commission process tied up in litigation in the federal courts for years, ending up with the Supreme Court’s decision in Hamdan v Rumsfeld in June 2006 that ended the process created by President George Bush, [which was] created by an executive order.
Ali Kamran Chishti: Okay! Now let’s talk about the rights which the Gitmo detainees never had. Apparently, President Bush did not give detainees protection under the Geneva Conventions despite the Supreme Court’s ruling in Hamdan v Rumsfeld, which actually calls for a “minimal protection” to detainees (Common Article 3 of the Geneva Conventions). Did people from “inside” disagree [with] that?
Colonel Morris Davis: Yes, people disagreed with the Geneva Conventions. If you haven’t already, you might want to read Karen Greenberg’s book, The Least Worst Place, which chronicles the first 100 days that Gitmo was in operation in early 2002. The military leadership, in absence of any other rules, fell back on their Geneva Convention training and the place operated in a pretty humane manner at the outset. All of the Judge Advocate Generals, the senior uniformed attorneys of each of the military services, argued for application of the Geneva Conventions. Apparently, it was the civilians like David Addington, John Yoo, Alberto Gonzales and Jim Haynes — a group referred to as “the big brains” — who disagreed and had more clout. Secretary of Defense Rumsfeld was dissatisfied with the amount of information coming from the detainees and pressed to ratchet up the coercion to squeeze more intelligence from the detainees, and the rest is history.
Ali Kamran Chishti: What were the legal standards used to put people in Guantánamo? The public has the impression that many innocent people were in there on the basis of rumors or malicious individuals. If no information was gained from them after a year or so, why were they kept for so long?
Colonel Morris Davis: I don’t know the precise process that resulted in most of the detainees going to Gitmo because that pre-dated my involvement in the military commissions. The only detainees sent to Gitmo during my tenure were 15 high value detainees that were transferred from the CIA black sites to DoD detention at Gitmo. Those were approved by President Bush. The customary laws of war permit detention of enemy combatants for the duration of hostilities. That authority is not dependent on whether they do or do not provide information. It is dependent on whether they pose a current or future threat to us or our allies.
Ali Kamran Chishti: Sir, do you realize [that out of] all those years of the establishment of Gitmo only three prisoners (David Hicks, Salim Hamdan and Ali Al-Bahlul) were convicted while 420 out of 775 were released without a charge? Why? [Note: 532 prisoners were released under President Bush (including Hicks and Hamdan) and Obama has released another 59].
Colonel Morris Davis: Basically Gitmo was more of an “intelligence squeezing” center than a Jail.
Ali Kamran Chishti: Why were some people put in Guantánamo, others sent to secret detention sites in Europe, and others to Syria, Egypt etc. for questioning? And some remained in Bagram, Afghanistan. Are these different categories of prisoners?
Colonel Morris Davis: Those sent to Gitmo were those believed to have intelligence value. People were not sent there to face prosecution, they were sent there to be exploited for intelligence.
Ali Kamran Chishti: Hmm … so who was in charge of the interrogation? Or “Intelligence Squeezing” Ops?
Colonel Morris Davis: There is no simple answer. The Department of Defense operated the facility and had primary responsibility for the interrogations through an organization called the Joint Intelligence Group (JIG). That is not to say the CIA or FBI or a foreign intelligence or local enforcement agency couldn’t speak with detainees but the vast majority of the work was done by personnel from the Defense Department. On the other hand, at the CIA black-sites where the high-value detainees were held before they were sent to Gitmo, the CIA had primary responsibility and conducted most of the negotiations.
Ali Kamran Chishti: Hang on, foreign agencies were allowed access to the detainees?
Colonel Morris Davis: Yes. I know the Canadians were allowed to speak to Omar Khadr [as well as] various [other] intelligence agencies around the world that had access.
Ali Kamran Chishti: Various intelligence agencies like the ISI?
Colonel Morris Davis: Yes. In fact I had one face-to-face meeting with a very senior official of the ISI (name withheld). We initially met to discuss the extent to which ISI would assist us, as we got ready for the military commission trials.
Ali Kamran Chishti: Military Commissions? Did the ISI agree to this?
Colonel Morris Davis: Yes. We needed access to people, things and places and ISI could help facilitate the process. The official I met with was very cordial and was more than willing to arrange ISI cooperation. In return they were interested in access to one detainee of Pakistani origin at Gitmo (name withheld). I was supposed to travel to Pakistan for a follow-up meeting but our trip was delayed because of unrest in Pakistan. I resigned a few months later, so I never made the trip. I don’t know to what extent ISI is cooperating with the prosecution now.
Ali Kamran Chishti: So are you trying to say — and let me get it absolutely spot-on on this one: Yes or no. What you said is that the ISI or Pakistani military agreed to help US try Pakistani nationals at military tribunals without the protection of the Geneva Conventions at Guantánamo Bay, Cuba?
Colonel Morris Davis: Yes, absolutely.
Ali Kamran Chishti: And there was no one from the Pakistani civilian government [who] ever checked up on the Pakistani detainees state of affairs? Or wanted consular access?
Colonel Morris Davis: Negative. No contact whatsoever.
Ali Kamran Chishti: On the violence part: Gitmo has one of the worst human rights record and as you say it was more of an “intelligence exploitation” center than a jail. How [was] intelligence squeezed out?
Colonel Morris Davis: It was my understanding that Secretary Rumsfeld rolled back his earlier authorization for enhanced techniques in 2004 after the abuses at Abu Ghraib went public. I never witnessed torture at Gitmo although aggressive techniques were used prior to the time I became chief prosecutor in September 2005. I know there were some instances where interrogators went too far and crossed the line. [Mohammed al-]Qahtani and [Mohamedou Ould] Slahi are two examples where the techniques used by the interrogators went too far. Those instances were not anywhere near as common as most people believe. In my estimation, more than 90 percent of the information developed at Gitmo came from interrogators taking the time to develop relationships with detainees, often over burgers, pizza and sub sandwiches rather than using undue pressure to make them talk. In the few cases where interrogators went too far, I instructed the PTF members that we would not use anything the detainees said and, instead, we would work to develop cases independent of the coerced statements at trials, then how the statements were obtained is irrelevant in the military commissions. Also contrary to popular folklore, no one was ever waterboarded at Gitmo. There were three detainees that were waterboarded and that happened while they were in CIA custody long before they were transferred to Gitmo.
Ali Kamran Chishti: How do you define torture? Does it include sleep deprivation? Or other psychological forms of pressure that are not used in normal prisons? Who ordered the torture to start and stop?
Colonel Morris Davis: I have never tried to define torture. Whether a detainee was tortured focuses on the culpability of those interrogating the detainee and whether they should be prosecuted for their conduct, which is not a military commission matter. My job as chief prosecutor for the military commissions was to prosecute enemy combatants we believe committed war crimes. My sole focus was on whether the information obtained from the detainee was reliable regardless of whether the treatment reached a level where it satisfied the elements of torture under domestic or international law. As for the latter part of the question of sanctioning torture: both former president Bush and former vice president Cheney stood by their decision, arguing the ends justified the means.
Ali Kamran Chishti: Now there were reports of mass suicides by detainees because of the treatment by interrogators. Your views?
Colonel Morris Davis: You’ve linked two facts — there were suicides and there was some abusive treatment by interrogators — to form a conclusion that I believe is incorrect. I was down at Gitmo on June 9, 2006 when the triple suicides occurred. Admiral Harry Harris, the commander of the detainees operations at the time, was vilified for calling the suicides an act of “asymmetrical warfare”. I personally believe Admiral Harris was right to call it what it was. The story that this was a triple homicide followed by an elaborate conspiracy to conceal it makes for good drama but I don’t believe the scenario was accurate. When Donald Rumsfeld referred to the detainees in general as the “worst of the worst”, the three detainees that killed themselves did not fit the description. They were so insignificant among the detainee population that when I saw the names I had no idea who they were. At least one of the three had already been cleared for transfer back to his home country since he didn’t pose a threat to the US or our allies. None of them had been among the detainees who instigated trouble with the guard force. These were human beings, so I don’t mean to disparage them in any way, but among the detainee population as a whole they were nobodies. Recall, too, that at that point in time in June 2006 we were days away from the Supreme Court announcing its decision in the Hamdan case and President Bush was preparing to announce that he was authorizing the transfer of the high-value detainees from CIA custody at the black sites to DoD detention at Gitmo. In short, the personnel at Gitmo had no reason to arbitrarily murder three nobodies; instead they had every reason to be on their best behavior, given the historic announcements that were coming from the most senior levels of the US government in the coming days.
Ali Kamran Chishti: Do you think Gitmo was an embarrassment to the United States?
Colonel Morris Davis: It was and clearly is an embarrassment to the United States. As to whether it should have been closed, I suppose that depends on what the alternative would have been. If it just meant moving all or most of the detainees to another facility – Bagram, for instance — all you’ve done is create another Gitmo in a new location. I have personally seen a great many jails and prisons in the United States and abroad, and the facilities at Gitmo are far superior. I believe Americans who are currently in prison would gladly trade places if they saw the conditions at Gitmo. The facilities are clean, they are safe, they are not over-crowded, the food is good and the medical care is better than I got when I was in the military. Unfortunately, just the word Guantánamo has become such a stigma that I don’t know if it’s possible to rehabilitate its image, which alone may warrant its closure.
Ali Kamran Chishti: Why did you resign from the post of chief prosecutor of Guantánamo Bay?
Colonel Morris Davis: I resigned because I did not believe we would provide full, fair and open trial for the detainees we intended to prosecute. There were too many people trying to manipulate the trials and a few people trying to pressure me to use evidence that was unreliable because it was the produce of undue coercion. I couldn’t in good conscience be a part of that. I was just one of the many who had the common sense and common decency to recognize that there’s a line between right and wrong, and the courage to stand up for what’s right. I hope the world will come to see that despite a few bad people in the US government who made bad decisions — decisions that may even be criminal — there were many of us who believed in the sanctity of the rule of law. A year later, in October 2008, I retired from the Air Force. For my final year I served as Director of Air Force Judiciary.
Ali Kamran Chishti: Why did the Obama administration decide to sack you from Congress?
Colonel Morris Davis: I think the opinion pieces I published last November in the Wall Street Journal and the Washington Post, [which were] critical of the Obama administration’s handing of the Gitmo detainees issue, aggravated some in the Obama administration, but I do not believe they instigated my termination at the Library of Congress. The person I was working for had been at the Library for more than 40 years and in my view he is incapable of separating his personal beliefs from his professional duties. He was offended that I had the audacity to publicly express my opinion about Gitmo based on my former role. My boss didn’t like it, although the Library of Congress has a regulation that at least in print purports to encourage employees to write and speak on topics outside the scope of their official duties. I relied on the rules and my boss fired me. Interestingly, I alienated some in the Bush administration when I resigned as chief prosecutor and spoke out against torture and political meddling in the trials. I then alienated some in the Obama administration when I criticized their waffling on what to do with the Gitmo detainees. Having offended both the ends of the political spectrum, I’ve hit a spot where I’m now [un]employable.
Ali Kamran Chishti: How do you view American foreign policy in general and specifically Afghanistan-Pakistan policy?
Colonel Morris Davis: I give President Obama credit for his efforts to engage with other countries and I’m particularly impressed by Secretary of State Clinton. She has done much better than I ever expected. I never understood the Bush administration’s view that talking with others is a sign of weakness. I thought the Bush policy was arrogant and short-sighted. While the current administration has done a good job of reviving international dialogue, I’m waiting to see it followed up with some concrete actions that show we are meaningfully engaged in the community of nations. I’m skeptical of our Af-Pak strategy. Too often we tend to view others through our own lens and often we’re shocked when they don’t behave as we would. We thought the Iraqis would see us as liberators and they’d embrace democracy and become a Middle East success story. We were shocked that when given a chance for democratic elections the Palestinians elected Hamas. I’m afraid we bring those same biases to our Af-Pak strategy. Nation building in that region has been a largely futile effort for generations. I’m not sure why we think we’ll prevail where so many others failed. I also found it ironic that the far right, who were so critical of President Bill Clinton for using the military for nation building, ended up getting us into two massive nation building endeavors that dwarf anything that ever happened when Clinton was in office. I hope I’m wrong and that by this time next year we are withdrawing forces from Afghanistan and the situation there has gotten a lot better, but I’m doubtful that will happen.
Ali Kamran Chishti: Do you see, as an Air Force Officer, the effectiveness of drones? And how it is affecting Pakistan?
Colonel Morris Davis: I don’t think there is any question that drones are effective, at least from our perspective. For us they are safe, inexpensive, and can loiter a lot longer than conventional aircraft and provide a better blanket of close air support. It’s how we use them that is problematic. I am concerned about the legality of how we’re employing them. If a CIA employee operates a drone from a remote site far from the front lines and fires a missile that kills people on the ground in another country, what is the legal status of that employee? Where does he or she fit in the Geneva Convention classification of personnel in an armed conflict? Is he or she a lawful or unlawful combatant? How would we react if the Mexican government pursued a drug cartel member across the US border using a drone and then fired a missile that killed the drug smuggler and some American citizens? It may be a case of where we condone doing ourselves what we’d condemn others for doing, similar to how some view our use of torture compared to torture by others.
Ali Kamran Chishti: Thank you so much for the time.
Colonel Morris Davis: It’s always a pleasure, Ali.
POSTSCRIPT: Col. Davis wrote to me with the following clarifications of aspects of the interview:
What Ali reported is for the most part accurate. It was based in part on my written responses to his written questions as well as a brief telephone conversation that Ali then wove together into a single narrative. The part of the narrative that came from my written answers is mostly accurate, although it was edited after I submitted it and it is not a verbatim version of what I sent Ali. Some of the narrative that came from the telephone conversation is not “spot-on.” I suspect that is due in large part to Ali and I having some difficulty understanding the other because of our distinct accents. To be clear, I did meet with a Pakistani official to see if they would be willing to assist us in preparing for the military commissions, but there was no mention whatsoever of them doing so in return for access to a detainee or in return for anything else for that matter. The official I met with was willing to arrange a meeting in Pakistan with government officials to discuss the extent, if any, of their assistance to us, but the trip did not take place before I resigned. Also, I don’t know whether anyone from their government checked up on Pakistani detainees. Ali asked if I ever saw anyone from the Pakistani government at Gitmo and I said I had not, and that the only government I knew for sure that visited one of its citizens was the Canadian’s meeting with Khadr. As for your assertion about the timing of the Supreme Court’s decision in the Hamdan case and the transfer of the high value detainees, I know from personal involvement that the latter was independent of the former.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, currently on tour in the UK, and available on DVD here), and my definitive Guantánamo habeas list, and, if you appreciate my work, feel free to make a donation.
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