Colonel Morris Davis:
Where is justice for the men still abandoned in Guantánamo Bay
“I will be back soon,” I said, as we stood up and shook hands. Then I turned and walked a few steps to the gate, and waited for the guard to unlock it so I could leave. Those were the last words I said to Mohamedou Ould Slahi after I met him in the tiny compound he shared with Tariq al-Sawah in the detention camp at Guantánamo Bay. That was seven and a half years ago. I have never been inside the camp again. Slahi has never been out.
I didn’t know, that afternoon in the summer of 2007, that in a few weeks I would send an email to the US deputy secretary of defence, Gordon England, saying I could no longer in good conscience serve as chief prosecutor for the Guantánamo military commissions. I reached that decision after receiving a written order placing Brigadier-General Tom Hartmann over me and the Pentagon general counsel, Jim Haynes, over Hartmann.
Hartmann had chastised me for refusing to use evidence obtained by “enhanced” interrogation techniques, saying: “President Bush said we don’t torture, so who are you to say we do?” Haynes authored the “torture memo” that the secretary of defence, Donald Rumsfeld, signed in April 2003 approving interrogation techniques that were not authorised by military regulations – the memo where Rumsfeld scribbled in the margin: “I stand for 8-10 hours a day. Why is standing [for detainees during interrogations] limited to 4 hours?” Rather than face a Hobson’s choice when they directed me to go into court with torture-derived evidence, I chose to quit before they had the chance.
Slahi and al-Sawah had been recommended to me as potential cooperating witnesses. Before I met them, I asked one of my prosecutors to review their files and check with other agencies to be sure nothing had been overlooked. We attended a meeting where those who had spent years investigating Slahi briefed their findings. The end result was a consensus that, like Forrest Gump, Slahi popped up around significant events by coincidence, not design.
Several times I met Slahi and al-Sawah to try to secure their cooperation. They had a garden inside their compound where they grew herbs and vegetables. I don’t like hot tea even in the dead of winter, but whenever I visited, Slahi insisted on brewing tea using mint fresh from the garden. I recall sitting outside his hut in the Guantánamo heat, soaked in sweat, drinking hot tea and spitting mint leaf remnants on the ground as we talked.
I thought Slahi would be transferred out when President Obama took office. It seemed likely in 2010 when US district court judge James Robertson ordered him released after finding that incriminating statements he made were obtained by coercion, and that other evidence only proved there was smoke but no fire.
But instead of transferring Slahi, the Obama administration appealed and the US court of appeals proved to be an impenetrable barrier, just as it has in every case where a detainee won a habeas challenge at the district court level.
It has been four and a half years since Slahi’s release was ordered and he is still within sight of where he and I shook hands for the last time in 2007.
We were told that all the men at Guantánamo were the “worst of the worst”. In my job as chief prosecutor, where my focus was on reviewing cases for potential criminal prosecution, it was obvious the label was mostly hype. While the label fits a few – like Khalid Sheikh Mohammed – fewer than 4% of the 779 men ever sent there have or will face charges.
Six military commissions have been completed since they were first authorised by George Bush in November 2001. Five of the six men convicted and sentenced as war criminals – Hicks, Hamdan, Khadr, al-Qosi and Noor Uthman Mohammed – are now back in their home countries. (Hamdan and Mohammed have since been cleared.) What does it say about American justice when a person fares better being a convicted war criminal than someone we could not even charge?
Men were sent to Guantánamo because some in the Bush administration thought it was outside the reach of the law and we could exploit people there with impunity. Time proved them wrong. We have spent more than $5bn on detention operations at Guantánamo since it opened 13 years ago. There are 122 men there now at a cost of about $3m a year each. Almost half are approved for transfer, a status in which many have languished for years as the US tries to beg and bribe other countries to take them. And now some members of Congress want to make it more difficult for Obama to close it before he leaves office in January 2017.
I hope many will read Slahi’s book, extracts of which are published in Saturday’s Guardian, and come to appreciate that Guantánamo is not just an abstract concept. It is a real place where real people have spent years wondering if anyone will ever come back for them.
America has paid a heavy price for a bad decision made 13 years ago, but it pales in comparison to the toll on those who remain trapped in the black hole of Guantánamo.
This article will appear in The Guardian, Saturday issue.
The biggest blow hards over the ‘rule of law’ have no problem keeping these prisoners behind bars with little to no evidence of wrongdoing. ISIS, AlQueda and other groups point to Guantanamo as one of their reasons for disliking the US.
Colonel Davis – thank you for having the strength to stand up for what is right.
There was no Gitmo detention center when al-Qaeda hit the Twin Towers and the Pentagon on 9/11. Or the USS Cole in 2000. Or the US embassies at Nairobi and Dar in 1998. As for ISIS, they don’t need any other reasons to hate our guts. We are us. That’s enough.
Yes they hate us anyway but Gitmo helps recruit new people. That’s a problem. I have been reading about a surge of young people, especially from this country wanting to join up. Now that is disturbing.
Al-Qaeda and ISIS. They kidnap, rape, and enslave non-Muslim women. They behead prisoners for video shots or just shoot them in the back of the head or maybe demand millions in ransom to not do either. Or they apparently train little kids to summarily execute adult prisoners. The Taliban is not much better.
Now, just how would those guys raise a hue and cry about the terrible conditions at Gitmo? Claim that the nasty Americans make the prisoners grow tea and vegetables in their cells, give them access to lawyers, and even allow them to publish diaries about their imprisonment? And the prisoners aren’t given their day in court?
Yeah. Off with their heads!!
It is my understanding that the kidnaps, rapes, and enslavements are also for Muslim women if they are non-compliant or family members of someone they perceive as an enemy.
They use Gitmo as recruitment. Not everyone, as Moe points out, in Gitmo is guilty. Many have never had their day in court. Holding worst of the worst is very defensible. Holding someone for 10 years who hasn’t been tried…that’s another matter.
BTW, I am not disagreeing with you about the horrible, nasty horribleness of ISIS, Al Quada, etc. I am suggesting that there might be innocent people in Gitmo, at least according to Moe. He was there. I wasn’t.
It’s probably a good thing those two groups aren’t relying on my for their lives. Their lives would be very short if it were left up to me. However, I have never been long on civil rights in that dept.
Wolve – you seem to be afraid of them standing trial. Standing trial is the crux of our legal system – so you are ok with holding potentially innocent people for 10,15,20…. years with no charges, no trial, no outcome? Sad.
I am not ok with it, I am also not afraid of having a trial
Wolve: the point isn’t how bad these ISIS types in Syria and Iraq are. They’re bad, really evil. But the post is about Gitmo and the people we are holding there. It’s about who we are. If we have evidence that some of these prisoners have committed crimes, great. Bring them to trial. If the evidence supports their guilt, lock them up forever. If not, why are we holding them? Gitmo, Abu Ghraib all create dangerous, murderous enemies of the United States. Why would we want to do that?
Sorry, Scout old boy, you missed the boat. My posts were in reference to Pat’s comment about Gitmo being a cause for al-Qaeda and ISIS “disliking the US.” No doubt they will use it for their own dirty purposes. But it is really just one straw in a big haystack. As I said, Gitmo did not exist on 9/11. Let us not exaggerate the thing to make it look like a top element at play in a very broad crisis.
If Americans knew the facts about Guantanamo the vast majority would be outraged that their money and credibility have been wasted for 13 years for no good reason.
Pat, your opening sentence is way off. I agree with Moe that we have botched royally the judicial part of the whole Gitmo episode. I am for honest trials, especially military. What I disagree with, however, is the so-called importance of Gitmo to contemporary radical recruiting or pumping up efforts. Sure they probably use it to an extent, but it must be hard to keep a straight face when you accuse Americans of dastardly injustices as you use a knife to slice off the head of a living prisoner who is a journalist or a humanitarian relief worker. Let us keep it real here. The ISIS recruits out of Europe and elsewhere are not exactly citing Gitmo as a primary raison d’etre for raping, murdering, and pillaging in the effort to establish “The Caliphate.”
However, they most likely do enjoy it as we tie ourselves in knots of conscience over Gitmo and get distracted from the real evil they represent to humanity. Put the remaining Gitmo “guests” on honest trial or pack them off somewhere with a firm promise that, if we seem them on the battlefield in the future, there will be no prisoners taken next time. Then get back to the war fighting in full earnest before thousands more die at the hands of the radicals.
We aren’t defining THEM with Gitmo. We are defining ourselves. Holding innocent people in prison is simply not American.
Yes, it is important. Perception is reality. This time the reality is pretty piss poor. Really bad feelings about Americans is not good for anything we do around the world and it is used to fuel fires.
Heck, Moe, I’m already outraged at the way the gummint wastes our money. And that was long before Gitmo.
Stop worrying about those out there who say they think ill of America. They usually have got far worse skeletons in their own closets than we have. And they will come knocking when trouble visits their neighborhood. They are usually working closely with us behind closed doors anyway, despite all the public fuss and feathers you may see.
Love that old story about the time when Charles De Gaulle sternly ordered that all American troops must leave French soil. An American official (can’t remember which one off hand) asked if that meant the American troops who were buried in France as well. Silence.
The United States at least likes to give the perception of being a just democracy. Holding people prisoner with no end in sight doesn’t do much to advance American principles.
Good will towards America really does count.
Not really that much. National interests drive foreign and economic policy.
But, if you want to dwell on the embarrassment of Gitmo in the middle of a war to the death (at least in the eyes of ISIS and al-Qaeda), blame it on POTUS. He promised to close Gitmo as a first priority in 2009 at a time when he had both houses of Congress. In fact, I think that is what Moe took him to task for and then got unfairly fired (in my opinion) from the CRS — if I recall correctly. Well, POTUS does seem to be trying at the moment. Hope it doesn’t backfire out in the field.
I’m not saying that what we did vis-a-vis “American justice” at Gitmo was a good or smart thing. I am saying that we ought to correct it like adults and then get on with business. What is not good is letting yourself be overly distracted behind the lines at a time when you are eye to eye with serious killers in the war trenches.
It is worthy of discussion. Why would I blame the person who has to clean up the mess for the mess in the first place? If I am not mistaken, Obama was blocked by the courts. He needs to get on with it now.
I don’t think Obama personally fired Moe but I agree, his firing definitely was a violation of his free speech. I don’t think free speech works as it should when you work for the government or are in the military.
There are two aspects to this discussion. The focus of this thread seems to be on the judicial aspect, but the other important focus should be on the POW aspect. Recent events show that the war against Islamists is not over, despite proclamations to the contrary. POWs are not held as punishment, but rather to remove them from the battleground. Of course the lawyer focuses on the judicial aspect. From the warfighter viewpoint, regardless of guilt, should these people be held to prevent them from joining the fight?
@Wolve
Wow – you really read too far into things. I did not allude to anything that said that Gitmo was responsible for 9/11. But I can tell you this – if a foreign country was tinkering in your affairs for many years (1, 2, 3 hundred years) – people rise up against it. Take the US for example. The Muslim religion is prevelent in the Middle East – and the West has been tinkering in the Middle East for a very long time – enough time to dislike the West.
Gitmo is a rallying cry to get more people riled up and join groups like ISIS – you think not? It is another bullet point on the recruiters power point.
@Kelly_3406
Kelly — Your comments raises a couple of things. First, there is the question of whether the Global War on Terrorism is a literal “war.” As you know, terrorism is a tactic and you can’t literally declare war on a tactic. Second, those at Guantanamo have been there somewhere between 8 and 13 years. ISIS, AQAP, Al Shabaab and the other groups that are current threats didn’t exist back then. If the argument is that they are related to a common element then you could say the same thing about the war on communism that took us from Korea to Vietnam to the collapse of the Soviet Union. Under the ongoing war on ______ theory we could have detained someone captured in 1950 at the start of the Korean War for 40+ years on the theory that the war on communism continued until the demise of the Soviet Union (and you could argue it’s still ongoing). Finally, you mention removing them from the “battleground.” You could count on your fingers the number that were captured by the U.S. military on anything that resembles a battlefield. The vast majority were sold for a bounty, picked up by the police or intelligence services in other countries, or turned themselves in. Take the subject of the article, Slahi. He turned himself in to the government in Mauritania who handed him over to the U.S. There are very few that we had any evidence on to show they had taken any hostile actions towards the U.S., so the notion that they might rejoin the battle is based on the faulty assumption that they’d been participants in a battle to begin with.
@Kelly_3406
This is my feeling.
But our CINC keeps releasing actual terrorists. See Bergdahl and other cases.
Close Gitmo?
I’m just hoping he doesn’t hand over the entire freaking base to Cuba.
Gee whiz, Pat…And here I thought your first sentence in #8 accused me falsely of being afraid of those prisoners standing trial. Am I not allowed to differ and provide a contrasting viewpoint on Gitmo in the overall scheme of things? No personal disparagement, I assure you. Just an effort to clarify something as I see it. Well, I mean, really, it didn’t take Gitmo for 3000+ innocents to die on 9/11. I think the jihadists hated us pretty well before 9/11. And I don’t think that closing Gitmo will stop the recruiting and the killing. Only beating the crap out of them might do that.
Please let us not get into a debate over who was tinkering where when. It might take us back to the Muslim army at the gates of Vienna or the Greek war for independence or the rape of Belgrade or, even much earlier, poor Rolande desperately blowing his horn in a Pyrenees mountain pass. I posit that there has been enough “tinkering” to go around. Heck, as Cargo implied not long ago, if it wasn’t for Charles Martel, France might have already been a part The Caliphate for a millenium.
If I were France at the moment, I would be deporting a whole bunch of people,,,,just to be a bitch…if countries can be bitches.
Recommendation from a prof in the Department of Social Anthropology at the University of Oslo:
“Norwegian women must take responsibility for the fact that Muslim men find their manner of dress provocative. And since these men believe women are responsible for rape, the women must adapt to the multi-cultural society around them.”
He is obviously an A-Hole. Why would he even be quoted. How about him being fired for being stupid.
@Cargosquid
You need to contact the FBI and provide the evidence you have on the “actual terrorists” being released from Guantanamo. There are some “actual terrorists” at Guantanamo and they are being prosecuted (although I believe federal court is the better forum choice), but many have been in custody for more than a dozen years and we never could muster evidence on them.
@Morris Davis
Really?
So…those 5 swapped for Bergdahl weren’t bad guys? Weren’t the enemy?
Khair Ulla Said Wali Khairkhwa
“associated with al Qaeda’s now-deceased leader in Iraq, Abu Musab al Zarqawi. He is described as one of the “major opium drug lords in western Afghanistan”
Mullah Mohammad Fazl
wanted by the United Nations in connection with the massacre of thousands of Afghan Shiites during the Taliban’s rule.
chief of army staff under the Taliban regime
Mullah Norullah Noori
Noori served as governor of Balkh province in the Taliban regime and played some role in coordinating the fight against the Northern Alliance.
Abdul Haq Wasiq
deputy chief of the Taliban regime’s intelligence service.
al Qaeda intelligence member and had links with members of another militant Islamist group, Hezb-e-Islami Gulbuddin.
Mohammad Nabi Omari
member of the Taliban and associated with both al Qaeda and another militant group Hezb-e-Islami Gulbuddin. He was the Taliban’s chief of communications and helped al Qaeda members escape from Afghanistan to Pakistan. Omari acknowledged during hearings that he had worked for the Taliban
“Looking at the profiles of these individuals, I think there’s a valid reason for concern about what lies in the near future,” said terrorism analyst Evan Kohlmann. “If these guys go back to the region that they’re from, I don’t have much to doubt they’re going to resume the positions that they occupied previously,” he said.
The Afghan Taliban are still led by Taliban Chief Mullah Omar, a man with whom several of the detainees had a direct connection. The leadership that was in place before the men were captured, is mostly still in charge, Kohlmann said.
“These guys, they weren’t just picked out of a hat,” he added. “The Taliban had been calling for their release.”
@Morris Davis
“we never could muster evidence on them.”
The problem is that too many people treat this as a criminal case.
@Morris Davis
One thing I’ve always wondered about is why people held at Gitmo who were cleared for release had to spend years waiting until they were finally released? Why the years long wait for release after years of erroneous incarceration? Why is that?
Cargo — I never said they were great guys, but look at what you cited and show me one hostile act directed at the United States. Maybe some of them should be prosecuted for what they did to their fellow Afghanis, but we have no legal right to detainee every jerk on the planet forever.
DB — Despite both Obama and McCain pledging to close Guantanamo when they ran in 2008, after Obama won the GOP strategy was to make him a one-term president, so anything he was for they were against. As a result, there are several dozen men who were cleared for transfer more than 5 years ago that we spend $3M a year each to keep despite DOD, DOJ, FBI, CIA, DNI and DOS unanimously agreeing we don’t need to keep them.
Cargo – if these guys committed acts of violence against US Citizens or on US soil, why isn’t that a “criminal case”? If they didn’t, then what’s the legal justification under a system of laws for keeping them?
The answer to Gitmo is the same answer to other issues that the US faces – do nothing.
Immigration
Tax Reform
Wealth disparity
Budgets and Spending
Border Control
Doing nothing is what Congress does best – and then tinkering with things to create and forward agendas instead of moving the Country forward.
@Morris Davis
One question for you Mr. Davis and I do respect your opinion based on your expertise.
What do you think from a legal stand point (as well as setting a standard for) executing Americans without due process? Should such deliberate commands to execute an American result in legal action against said person? What if that strike resulted in the death of non-target Americans?
As I’m sure you know President Obama directly ordered the strike against American citizen Anwar al-Awlaki in Yemen. While doing so he also killed Americans Samir Khan, Awlaki’s teenage son Abdulrahman al-Awlaki and Jude Mohammed.
I’m just curious from a legal point of view what you think of those direct orders which resulted in the killings of American citizens without due process?
If Americans are committing acts of war against America, why does their citizenship matter?
I didn’t say it did… I didn’t mention if I agreed with it or not. I’m just asking Mr. Davis his legal opinion. He is the resident expert on detainee legal matters so I just wanted to know his professional, legal opinion about killing (aka droning) enemy combatants without due process v.s. Gitmo.
I would also like to know his professional legal opinion about the President directly ordering the killing of American citizens without said due process (btw, not a single American killed was ever convicted of “acts of war against America”).
And as a follow up question… As a direct result of the President ordering the killing of an American citizen without a judge, jury or trial he also killed an American teenager. As far as I know that teen wasn’t “guilty” of anything. Does that constitute involuntary homicide? Or, does that constitute second degree murder considering the main target didn’t pose a direct threat?
What are the legal consequences for that if any?
Maybe Moe will come back and answer.
I don’t think we necessarily try everyone who we think is coming war acts against America. I think it is pretty much a defend yourself, ask questions later.
Correct, we don’t try them, we just kill them. That’s better than detaining them without trying them?
I’m just trying to understand the logic behind someone who is against holding detainees at Gitmo while at the same time has no problem with dropping bombs on potential detainees killing them and anyone around them.
The two kinda go hand-in-hand, right? Your either against holding detainees at Gitmo without a trial AND against the drone program. OR, you support holding detainees at Gitmo AND support the drone program.
I don’t see how anyone could be for one and not the other… it doesn’t make sense to me unless the reason is purely political. Then it makes perfect sense :-).
I don’t think I have expressed much of an opinion. Your logic makes my head hurt and I haven’t really participated in the Gitmo discussion.
I don’t see the difference in killing by drone or by manned aircraft. In the end, dead is dead. Dispute that one.
There is no difference and that isn’t my point.
You haven’t participated in the Gitmo discussion so Ill ask, how do you feel about it? Do you agree with Mr. Davis?
How so you feel about our Presidents drone program? Do you agree with it?
How do you feel about ordering the killing Americans without due process? Legal or not? what about killing a 16 year old American kid as part of collateral damage? Legal or not?
@Moon-howler
You can’t be FOR closing Gitmo AND FOR the Presidents drone program. It makes no sense at all.
What your saying is on one hand you believe in due process for these terrorist suspects while at the same time saying kill’em all!!!
I never said what I was for and what I wasn’t for.
Capturing and holding POWs and shooting someone in a battlefield setting just aren’t the same thing.
I basically don’t much care whether we use drones or manned planes. In wartime, if someone is determined the enemy, then go by the Geneva Conventions and that’s how I feel.
why keep Gitmo open? Those who need to be tried should be tried. those who shouldn’t, turn them lose. I think part of the problem is finding a receiving country.
@Jackson Bills
I will answer.
I am for closing Gitmo – keeping a prisoner with no charges for over a decade does not represent our values. Charge them or let them go.
Drone Program (started before Obama was President) – going after terrorists and taking them out – yes, I am for that. Unfortunately there can be collateral damage, the same as there is collateral damage potential with any and all military operations. Al-Awlaki – I am glad that they took him out, he moved to Yemen when he was 7 years old and had renounced his citizenship. I do not feel bad that he was taken out. He also (pre-death) was the inspiration for the Charlie Hebdo killers.
So why not just drone Gitmo and be done with it? We are killing guys who we would otherwise detain and attempt to get intel from anyway. So why not just drop a few bombs on Gitmo and all done… easy peasy.
@Moon-howler
I got that… you never said what you were for and what you weren’t. Which is why I asked what you were for and what you weren’t. Care to elaborate?
You still didn’t answer how you feel about killing a 16 year old American citizen (not did Pat). How do you both feel about that?
Depends on what he was doing and why he was killed.
@Jackson Bills
How did you feel about Pat Tillman being killed?
Thought it was a damn shame and was digusted by the excuses and cover up.
Now you gonna answer any of my questions or do you have more?
Sooooo…. Not gonna answer any questions? You said you didn’t voice your opinion and I asked very specific questions to get you views. Why in the heck do you and Pat refuse to answer anything?
Again… Please, pretty please with sugar on top. Can either of you answer any o the above questions?
If not (and I’m betting on not…) then what are you afraid of?
Because I dont have any clue who you are talking about. I don’t have any feelings about it at all.
@Jackson Bills
The killing of Al-Awlaki’s son was not intended and it was a shame that he was killed. Had ground forces went in to try and take out the target, it is likely he would have been also killed. He is collateral damage. Unfortunately, this is what you get when the country allows terrorists to assemble and does not engage with them. The same as the fighters with ISIS – are we to hold back a bombing run if we find out that there are US, UK, Aus citizens in the group – no, they are terrorists.
It is unfortunate – but that is what war is. When we went to war after 2001 – WE did not go to war, we got tax cuts and life in the US went on. Our soldiers went over to try and fight – and we did not even give them the resources to fight. We cut taxes and their Humvees were under-armored. We sent more soldiers over and we got a tax rebate checks.
At the same time – we are holding people in Gitmo that we cannot prove are terrorists. Some have been misidentified.
“We cut taxes and their Humvees were under-armored.”
Oh please…..
Humvees were not designed to be armored.
Nor were IED’s expected. Who expects the “enemy” to kill their own by the hundreds to kill a couple of Americans?
Warfare always brings new challenges.
@Cargosquid
You are missing my point a bit – we cut taxes when we went on a self imposed spending spree.
http://www.foxnews.com/story/2006/01/14/us-soldiers-bolster-humvees-to-improve-safety/
of course IED’s were not expected – yet another instance of the US underestimating the enemy. We totally underestimated the resolve of those fighting for their own beliefs. The Bush admin figured 50-60 Billion – yet it has cost us more than $2 Trillion and we are not done yet.
From what I’ve read, the major impediment to closing Gitmo is that there are bad guys that can’t be tried because the prisoners were subjected to treatment that would prevent the evidence from being used in court. Is this the case, Mr. Davis, and what could be the solution?
As stated by others, one can’t consider these folks prisoners of war for the simple reason that this war will likely never end, or if it does, these folks (and all of us) will probably be dead of natural causes.
You can try to muddy the water with talk of whether or not Gitmo leads to terrorist recruiting or whether drone warfare is an equal evil, but it doesn’t change the fact that the Gitmo scenario, along with torture and rendition, will be a permanent black mark on our country’s history.
Btw, thanks to Mr. Davis for his important perspective and information on this subject.