Ten Years On, Guantánamo’s Former Chief Prosecutor on Why He Resigned Because of Torture, and How It Must Never Be US Policy Again

5.10.17

A panel at the New America Foundation on January 11, 2012, discussing Guantanamo on the 10th anniversary of the opening of the prison. From L to R: Tom Wilner, Morris Davis, Andy Worthington and Jim Moran.Please support my work as a reader-funded journalist! I’m currently trying to raise $2500 (£2000) to support my writing and campaigning on Guantánamo and related issues over the next three months of the Trump administration.

 

Ten years ago, a significant gesture against the torture program introduced by the administration of George W. Bush took place when Air Force Col. Morris Davis, the chief prosecutor of the military commission trial system at Guantánamo Bay, resigned, after being placed in a chain of command below two men who approved the use of torture. Davis did not, and he refused to compromise his position — and on the 10th anniversary, he wrote an op-ed for the Los Angeles Times, reiterating his implacable opposition to torture, his incredulity that we are still discussing it ten years on, and his hopes for accountability, via the fact that, in August, torture architects James Mitchell and Bruce Jessen settled a lawsuit brought against them by three men tortured in CIA prisons, and also because, in the near future, “a citizen-led group, the North Carolina Commission of Inquiry on Torture, will hold a public hearing to take testimony from people who were involved in and affected by the interrogation program designed by Mitchell and Jessen.”

I’m cross-posting the op-ed below — but first, a little background.

I remember Col. Davis’s resignation, as it took place just a few months after I’d started writing about Guantánamo on an almost daily basis, and I knew it was a big deal, although I didn’t know the extent of it at the time. I did know, however, that he was not the first prosecutor to resign. Four resigned before him, including Marine Lt. Col. Stuart Couch, who was supposed to prosecute the Mauritanian Mohamedou Ould Slahi, but refused to because of the torture to which he had been subjected, and  prominent resignation after him was of Lt. Col. Darrel Vandeveld, called upon to unjustly prosecute a former child prisoner, Mohamed Jawed, whose story I covered in detail at the time (see, for example, The Dark Heart of the Guantánamo TrialsMeltdown at the Guantánamo TrialsFormer Guantánamo Prosecutor Condemns “Chaotic” Trials in Case of Teenage Torture Victim and Former Insider Shatters Credibility of Military Commissions).

However, Davis was the first chief prosecutor to resign based on his objections to the system, and his objections went to the top of the government. His first objection was to Air Force Brig. Gen. Thomas W. Hartmann, a minor player in the Guantánamo story, who had been assigned as chief counsel to the official overseeing the military commissions in July 2007, but above him was a much bigger fish — William J. Haynes II, the general counsel of the Department of Defense; in other words, defense secretary Donald Rumsfeld’s number one lawyer.

Most people with any interest in America’s journey to the “dark side” after 9/11 know that the CIA was authorized to set up a global network of “black sites,” where prisoners were subjected to torture, but not everyone knows that torture was also specifically approved at Guantánamo, by Donald Rumsfeld, on the specific advice of Haynes.

As Jane Mayer revealed in an article for the New Yorker in 2006, “On December 2nd [2002], Secretary of Defense Rumsfeld gave formal approval for the use of ‘hooding,’ ‘exploitation of phobias,’ ‘stress positions,’ ‘deprivation of light and auditory stimuli,’ and other coercive tactics ordinarily forbidden by the Army Field Manual.” Haynes had approved the techniques in a memo five days before, and in a notorious hand-written note, Rumsfeld, who worked standing at a podium, scribbled on the memo with reference to prisoners being made to stand in stress positions, but for no more than four hours at a time, “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”

After Davis’s resignation, he became an implacable critic of the system, writing a scathing op-ed for the Los Angles Times that December, and, in February 2008, he spoke to the Nation, and, as I explained at the time:

When asked by the Nation if he thought that the six men could receive a fair trial, he related a conversation with Haynes that had taken place in August 2005. According to Col. Davis, Haynes “said these trials will be the Nuremberg of our time ” — a reference to the 1945 trials of Nazi leaders, “considered the model of procedural rights in the prosecution of war crimes,” as the article described them. Col. Davis replied that he had noted that there had been some acquittals at Nuremberg, which had “lent great credibility to the proceedings.” “I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Col. Davis remembered. “At which point, his eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.’”

Haynes then, suddenly, resigned, although he has never been held accountable for his important role in establishing the torture program, with which he was evidently involved from the earliest days. He went on to join the Chevron Corporation as its Chief Corporate Counsel, almost immediately after leaving the Pentagon, and, in June 2012, became General Counsel and Executive Vice President of SIGA Technologies, Inc., a New York-based pharmaceutical company.

After writing about and cross-posting Morris Davis’s writings about Guantánamo and torture, I finally met him when the attorney Tom Wilner and I (who set up the Close Guantánamo campaign in 2012) invited him to discuss Guantánamo at the New America Foundation (now New America) on the anniversary of the prison’s opening in 2011. He then joined us for subsequent events in 2012, 2013 and 2015.

Davis’s op-ed is cross-posted below, and I hope you have time to read it, and will share it if you find it useful.

Here’s why I resigned as the chief prosecutor at Guantánamo
By Morris Davis, Los Angeles Times, October 4, 2017

Ten years ago today, I informed Gordon England, then the Deputy Secretary of Defense, that I could no longer serve as chief prosecutor for the military commissions at Guantánamo Bay. I requested immediate reassignment to another post and, within an hour, my request was approved. Soon after, I received an order not to speak to anyone about why I quit.

Here’s why I quit. Earlier that day, I had been handed an order, signed by England, that reorganized the chain of command, effective immediately. The order had placed Air Force Brig. Gen. Thomas W. Hartmann above me, and it had placed William J. Haynes II, the general counsel of the Department of Defense, above Hartmann.

Haynes, you might recall, signed the infamous torture memo — the one authorizing enhanced interrogation at Guantánamo that was approved by former Defense Secretary Donald Rumsfeld. It was in the margin of Haynes’ memo that Rumsfeld scribbled a comment about a four-hour limit placed on the amount of time interrogators could force detainees to stand upright. If he himself stood eight to ten hours a day, Rumsfeld wrote, why was the limit only four hours?

Hartmann had arrived a few months before, in July 2007, to serve as chief counsel to the official overseeing the military commissions. He was anxious to get convictions and wanted me to use all evidence, regardless of how it was acquired. For two years, my policy had been that the prosecution would not use evidence obtained by torture, because evidence obtained by torture is tainted. By the end of his first month, Hartmann had already tried to challenge this well-established fact.

When I learned that two men who sanctioned torture were above me in the chain of command, I concluded that I could not ensure fair trials for the detainees at Guantánamo. Nor could I put my head down and ignore the fact that the United States employed a practice it had long condemned.

I wish I could say that, in the following decade, the U.S. recovered from the shock of the Sept. 11 terrorist attacks, recognized the errors it made and regained its legal and moral standing on the issue of torture. That would be fake news.

I thought the election of Barack Obama, one year after I resigned, signaled the beginning of a new chapter in which America would atone for having veered off course. It was soon clear that my optimism was misplaced. After he was elected but before he was inaugurated, President Obama said of the torture program that the U.S would “need to look forward as opposed to looking backwards.” It was obvious that no one involved in sanctioning torture would be held accountable.

Obama’s decision may have been pragmatic in the short term, given the severe economic crisis he inherited. In the long term, history will remember it as a mistake. The government officials who had sanctioned torture enjoyed eight years of impunity during the Obama administration. This set the stage for Donald Trump to claim during the 2016 campaign that “torture works,” and that if he were president, he would bring back “a hell of a lot worse than waterboarding.”

Trump’s pro-torture rhetoric has so far gone unfulfilled, thankfully. But the issue should not even be open for discussion anymore. We have Obama’s inaction to thank for this.

There has been some recent progress, however. In August, the architects of the enhanced interrogation program, the psychologists James Mitchell and John “Bruce” Jessen, settled a lawsuit brought against them by the American Civil Liberties Union on behalf of three former detainees who said they were tortured at CIA prisons overseas, including one who died in custody. Every previous case in which former prisoners attempted to hold the U.S. government accountable for its torture program — including cases brought against government officials, employees and contractors — was dismissed.

Another step is an initiative in my home state of North Carolina. Later this fall, a citizen-led group, the North Carolina Commission of Inquiry on Torture, will hold a public hearing to take testimony from people who were involved in and affected by the interrogation program designed by Mitchell and Jessen. At this hearing, the group will also examine North Carolina’s role in facilitating torture by allowing its airports to be used for “torture taxi” flights, in which suspected terrorists were picked up abroad and transported to CIA black sites.

When I resigned a decade ago, I assumed that the U.S. would have closed the book on torture by now. I am disappointed that the issue remains unsettled, but heartened that there are groups seeking accountability. Injustices must not be forgotten. I intend to do my part to make sure Americans remember: Torture was wrong then, and it is wrong now.

Col. Morris Davis served as the chief prosecutor of the Guantanamo military commissions from September 2005 to October 2007. He was represented by the ACLU in a 2010 lawsuit against the Library of Congress.

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and the Countdown to Close Guantánamo initiative, launched in January 2016), the co-director of We Stand With Shaker, which called for the release from Guantánamo of Shaker Aamer, the last British resident in the prison (finally freed on October 30, 2015), and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by the University of Chicago Press in the US, and available from Amazon, including a Kindle edition — 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. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here — or here for the US).

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7 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, a cross-post, with my own commentary, of an op-ed by Col. Morris Davis, the former chief prosecutor of the military commissions at Guantanamo, marking the 10th anniversary of his resignation, on the day he was placed in a chain of command under two people who approved the use of torture, one of whom was William J. Haynes II, the Pentagon’s General Counsel; in other words, Donald Rumsfeld’s main legal adviser. Davis resigned because he refused to accept the use of any information derived through the use of torture, and he has maintained his opposition ever since. The photo shows him 2nd from left, at one of the many panel discussions I’ve been on with him in Washington, D.C., on successive anniversaries of the opening of Guantanamo, also with the attorney Tom Wilner, on the left.

  2. Andy Worthington says...

    Here’s Morris Davis calling for the closure of Guantanamo in Washington, D.c. on the 11th anniversary of the opening of the prison in January 2013: https://www.youtube.com/watch?v=F2cp5DmnYJ8

  3. Andy Worthington says...

    And here’s Moe speaking about Guantanamo in January this year, on CGTN (China Global Television Network, formerly CCTV International): https://www.youtube.com/watch?v=ByCuPwUAA-Q

  4. Andy Worthington says...

    Rose Ann Bellotti wrote:

    With the Ascension of Trump, Gitmo is now, truly, Bush’s Prison for the Ages, and America has successfully “disappeared” the human beings who languish there, including those who were cleared for release as much as 5-7 years ago.
    Nonetheless, despite the savagery of holding these people in that despicable place until they die, without charge, trial, conviction, or sentence, some people who are “in the know” still shed some light on one of America’s gravest sins.

  5. Andy Worthington says...

    Thanks for that analysis, Rose. Sad but true – “Bush’s Prison for the Ages.” There are so many reasons why Trump must go, but Guantanamo is definitely one.

  6. arcticredriver says...

    Thanks Andy.

    I remember following Colonel Davis’s struggle with Hartmann. He had returned to the Continental USA, for a month or two of leave, only to find, upon his return, that Hartmann had usurped his position.

    Colonel Davis is one of the heroes whose careers suffered because they took a principled stand. Other prosecutors who deserve our recognition include Darrel Vandeveld, and Stuart Couch, who you have covered in detail. There were three, or at least three, junior prosecutors who resigned, going over the head of the monstrous first prosecutor, Fred Borsh, who bragged that the cases would be open and shut, because all exculpatory evidence would be destroyed, or hidden from the defense counsel, and the jurors would be handpicked because they would have a strong bias to convict.

    Borsh’s abuse of the legal process was serious. He resigned from the military. Shockingly, his first civilian job was working as a civilian for the Office of Military Commissions. Every time we learn about the destruction of exculpatory evidence I wonder whether Borsh played a role in its destruction. I also wonder how he came to get this job, how long he kept it. Maybe Colonel Davis knows whether he was still working in Guantanamo during his service?

    Did you see this recent news, about the seizure of the computers the high-value captives who faced charges have been given, so they have access to the unclassified documents relevant to their case, and the privileged attorney-client documents prepared by their lawyers?

    Of course it is a long-standing principle that attorney-client communication is supposed to be secret. Nevertheless camp authorities seized their documents in 2006. Nevertheless the CIA installed secret listening devices in the meeting rooms lawyers used, and the microphone system in the courtoom was able to monitor the conversations between the defense counsel and their clients, from the microphones at nearby tables, when defense counsel switched off their mikes, and whispered.

    This computer seizure is Kafka-esque, because the justification for the extraordinary seizure is classified, and can’t be discussed in open court.

    Pohl stood up to the CIA, when they cut the microphones in his courtroom, something he didn’t know they could do. But, in this case, he seems to be cowardly deferring to “off-island security officials”.

    How could these “off-island security officials” even know what was on the computers? Do they know what is on them from eavesdropping on the confidential meetings? Did they take a clandestine copy of the computers’ hard drives, when they captives were out of the cell block? The NSA has developed malware that will transmit all the keystrokes on a targeted computer — but this is only useful on computers that are connected to a network, and, of course, these computers were not connected to a network.

    It is possible they know what the captives are typing because they opened up the computers, and hooked up add-on devices that transmitted the keystrokes to security officials, or hooked up a secret transmitter that allowed security officials to take control of the computers.

    But what could possibly be on the computers that would justify their seizure?

    Carol Rosenberg quoted this exchange between a prosecutor, and Pohl, the Presiding Officer — their name for a judge.

    “We will not be returning the laptops to any of the five accused, your honor,” Ryan announced after notifying the judge and defense lawyers of at least part of the problem in a classified filing.

    “Ever?” the judge asked.

    The prosecutor said a decision was being made elsewhere. “This has gotten a lot of people’s attention. In a hurry.” He also added, enigmatically, “There’s a very significant event that needs to be addressed.”

    Two court participants said the issue had been described as alleged “tampering.”

    “Tampering”? I don’t think any of the captive’s are computer experts. Nor do they have access to the special screwdrivers one needs to open up a laptop.

    This “tampering” might have been something as simple as the captive’s lawyers brought a disk with an anti-virus program, or a program to detect and delete malware. Practically everyone who runs a version of Windows runs an anti-virus and anti-malware software. Why would “off-island security officials” describe an anti-malware program as “tampering”? That might be all that is going on — the captive’s computers may have had their software modified, to provide clandestine access to security officials, or clandestinely transmit the captive’s keystrokes, and a normal anti-malware program may have shut down the clandesting monitoring.

    So, what could the captives do with their computers, if they weren’t monitored, that would be so dangerous? What if they wrote down dreams of somehow seizing a guard’s weapon, and escaping. Might they have written down fantasies of committing suicide, to cheat the hangman? Would these be valid justifications for seizing their computers, and not giving them back?

    I am reminded of the trouble the staff of the Senate Intelligence Committee had with the CIA, while preparing their report. Candace Gorman wrote an excellent article about the Kafka-esque charade of having to go to a “secure facility” in Washington, to read her own notes. Prior to every meeting lawyers have to submit to a thorough search, to confirm they aren’t bringing in anything dangerous, or anything not allowed. After every meeting they are searched again. They have to hand over all notes they made. All their notes are considered classified. Sometimes they arrive at the secure facility — Gorman has to travel from Chicago to do so, only to find that a security official has redacted some or all of their notes.

    The staff of the Senate Committee also had to go to a secure facility to read the CIA documents. They also couldn’t take away copies of any of the classified documents they found on the secure server.

    What they found was that the CIA were tracking their work. They’d find that a damning document they found the previous day would have been removed when they returned the next day, and wanted to show it to their colleagues.

    Wow, what a sense of entitlement the CIA has.

  7. Andy Worthington says...

    Thanks for your thoughts, arcticredriver. I added some links to my article about Darrel Vandeveld, who I hadn’t, of course, meant to overlook. His resignation, and subsequent statements, were hugely important back in 2008-09, in confirming the pro-prosecution bias in Guantanamo’s military commissions. How depressing that it is now eight years since, under Obama, the commissions were revived rather than being consigned to the dustbin of history.
    I had a quick search for Fred Borch’s post-Guantanamo history, but can’t work out how long he served as a civilian consultant for the prosecutors. It may not have been for long, though, because, in 2006, he became the first archive historian for the Judge Advocate General Corps.
    I’ve been so busy with Trump’s new hunger strike policy, and also covering a few other Guantanamo stories, that I haven’t yet had time to look in detail at the latest scandals from the commissions – the story you write about, and the resignation of the entire civilian attorney team representing Abd al-Rahim al-Nashiri, again because of spying by the government. I’m reminded of what Jim Haynes told Moe Davis, “We can’t have acquittals.” On the one hand, it amazes me that the government is interfering this way, but on the other I suppose it’s always been like this at Guantanamo – prisoners’ cells bugged, client-prisoner meetings bugged, an air of paranoia throughout the prison, sometimes affecting the staff as much as the prisoners, according to what Omar Deghayes told me years ago.
    Where did you get the info at the end of your comments, by the way: “The staff of the Senate Committee also had to go to a secure facility to read the CIA documents. They also couldn’t take away copies of any of the classified documents they found on the secure server. What they found was that the CIA were tracking their work. They’d find that a damning document they found the previous day would have been removed when they returned the next day, and wanted to show it to their colleagues.”
    I feel like I should have read that, but maybe I missed it. Or maybe, as I get older along with everyone else and this sordid Guantanamo and torture story rolls on and on without end, I’m starting to get forgetful. I certainly don’t have the total recall I had when I first started all this in 2006-07.

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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