People often ask me how a person appointed chief prosecutor of the Guantanamo military commissions by the George W. Bush administration ended up becoming an outspoken critic of the detention center and an advocate for closing it down.
Looking back, I recall that when I took the job in the fall of 2005, I believed – as many did – that all of those detained at Guantanamo were the “worst of the worst.” I also went into it with an idealistic notion that the Bush administration was actually committed to a fair and open process for prosecuting the really bad guys we could charge with war crimes.
By then, the most shameful abuses against detainees had ended. In the summer of 2004, the Supreme Court said that federal courts had jurisdiction to hear Guantanamo habeas corpus cases. That opened the door for lawyers to visit Guantanamo to meet with their detainee clients, and that bit of sunlight inside the prison helped end the worst practices.
The epiphany for me came in the summer of 2007, with the official appointment of General Counsel of the Department of Defense William J. Haynes and Air Force Reserve Brigadier General Thomas W. Hartmann over me. Haynes was the chief attorney for Defense Secretary Donald Rumsfeld, and was instrumental in the infamous memorandum Rumsfeld signed authorizing harsh interrogation techniques. Hartmann challenged my policy of not using evidence obtained by undue coercion, arguing that President Bush said we did not torture anyone. With two people now exercising command authority over me who seemed to lack any legal or moral objection to what most call torture, it was time to quit.
My decision was reinforced by the case of Australian detainee David Hicks. Hicks struck a plea bargain (orchestrated by members of Haynes’ staff) that saw his return to Australia, and his release just a few months later. The plea deal happened without consultation with the prosecution, which was unheard of in my 25 years of military legal experience, and, to my mind, was a clear case of political meddling.
The resolution of the Hicks case was not about justice – it was about a quick political accommodation by the Bush administration to help Australian Prime Minister John Howard win re-election (though he lost). The Hicks military commission – the first the United States had conducted since World War II – was nothing more than political theater dressed up to look like a military judicial proceeding. It was a charade.
I have come to regard Guantanamo and the still-floundering military commissions as profound and shameful stains on America’s reputation as a country that stands for freedom and justice for all.
At last count, there were still 166 detainees at Guantanamo, a large number of them so despairing that they are willing to contemplate death as a preferable option and have gone on hunger strike. The U.S. military is force-feeding 46 of those detainees to prevent them from starving themselves to death.
The solution to this decade-long problem is not easy, but if U.S. President Barack Obama can muster the courage, I believe he can make it happen before he leaves the White House.
Basically, we must deal with three categories of detainees. First, there are 86 detainees that the military, legal, intelligence, and law-enforcement members of President Obama’s Guantanamo Review Task Force have cleared for transfer by unanimous vote. A majority – 56 of the 86 detainees – are Yemenis who have been held for years in limbo despite the fact that their government wants them back. We must return them, even knowing that after years at Guantanamo, they are prime fodder for terrorist recruiters. This is a problem of our own creation, and the risk is one we must take in the name of justice.
The second group consists of 20 detainees that the government has prosecuted, or intends to prosecute. I believe we should abandon the discredited military commissions and prosecute these detainees in federal court, where hundreds of terrorism-related cases have been tried successfully and without incident.
The third category, consisting of about 60 detainees, is the most problematic. These are men the government believes should be detained indefinitely without trial. It uses as justification the law-of-war principle of keeping the enemy off the battlefield. But soon, the question is going to be “what battlefield, and what war?” Iraq is over and Afghanistan is winding down towards a 2014 conclusion. The dubious law-of-war legal justification is about to expire, which means the military will either create some new legal fiction as a basis for detention or review the cases again and assign them to one of the other two categories, as the evidence permits. The latter is the right choice.
The longer we let Guantanamo go on, the more money we waste and the more harm it does, not just to the detainees but to our image as a nation. As the president rightly stated in April, “Guantanamo is not necessary to keep America safe. … We’ve got to close Guantanamo.”
U.S. Air Force Colonel Morris D. Davis was chief prosecutor of the Guantanamo military commissions from September 2005 until October 2007. He retired from active duty in 2008. He is an assistant professor at the Howard University School of Law in Washington, D.C.