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The Last Days of Guantanamo

An American Nightmare Could Soon End

By Matthias Gebauer, John Goetz and Britta Sandberg

The military tribunals in Guantanamo were established to try America's enemies in the war on terror. But the treatment of prisoners and blatant disregard for the rule of law at Camp Delta undermined the system and damaged the country's reputation. The end is in sight for the military prison.

This wasn't exactly the way Morris Davis had imagined things would turn out when he accepted the post of chief prosecutor at Guantanamo. But he agreed to do it weeks ago, and now he's ready. The 50-year-old retired United States Air Force colonel -- a proud, broad-shouldered man who once wore a briefcase-sized array of decorations on his chest -- has been called to testify by video link as a witness for the defense in the courtroom in Guantanamo. He could even be asked to speak out in favor of the defendant, if necessary.

Davis was called to testify by the defense team of Khalid Sheikh Mohammed, the self-proclaimed mastermind of the attacks of Sept. 11, 2001. Davis, the man who, for two years in Guantanamo, decided who should be prosecuted and when, is now being asked to testify about the questionable means with which trials were conducted, and are still being managed today, in this military enclave on the island of Cuba.

He is expected to testify that the trials were politically influenced and the proceedings manipulated. The defense team wants him to report on an alleged order from the Pentagon that there could be no acquittals in Guantanamo. In short, David is expected to provide evidence that this politically tailored version of military justice was a failure -- long before the actual trials began and long before President-elect Barack Obama announced his intention to close the prison camp.

For the defense, which intends to prove that this was precisely the case, there is hardly a better witness than Davis, the former chief prosecutor, who was once under the illusion that he "could conduct fair and open trials" but would later resign in protest in October 2007. Davis officially retired from the military two months ago, after 25 years of service.

Guantanamo didn't just change Davis' life, it transformed the lives of many -- including those held here and their keepers. Guantanamo ended careers and reversed the course of entire lives. But it also changed the way the world sees the United States. After the abuse at Abu Ghraib Prison in Iraq, nothing has hurt America's reputation as much as the Guantanamo system. It became synonymous with torture of detainees and justice beyond the rule of law. The Guantanamo system has now been defunct for some time -- it essentially imploded and collapsed. But those who were part of this system were able to observe this process of self-destruction -- and now they are talking.

When Morris Davis took office as chief prosecutor for the new military commissions in a nondescript office building in Maryland in September 2005, he wanted "our children to be proud of us one day, to be able to say, the way they did after Nuremberg: The trials back then in Guantanamo were good and fair."

In those days, he liked to show visitors photos on his laptop of the sparkling new cells at the camp, with their stainless steel toilets, and say that he would like to invite CNN to attend the trials if he could. He wanted everyone to see that America offers everyone a fair trial, even suspected terrorists. In October 2005, he met with all of the relevant military prosecutors in Guantanamo and ordered them not to permit any testimony obtained by torture in the upcoming trials. This policy went well for two years, until Davis got a new boss, General Thomas Hartmann, who ordered him to give top priority to so-called "sexy cases," no matter how strong or weak the evidence was. Sexy meant cases in which the victims were Americans, such as those killed or wounded by hand grenades in Afghanistan. Hartmann wanted the sentencing of their aggressors to create a stir at home in the United States.

It was made clear to Davis that facts had to be established before the elections in the fall of 2008. According to Davis, Hartmann ordered him to "admit evidence obtained under torture."

The general denies both charges to this day.

Another high-ranking Pentagon official, Davis says, told him that there could be no acquittals in Guantanamo. "We've been holding these guys for years," he claims the official said. "How are we going to explain that? We have got to have convictions." The man who Davis accuses of having said these things is William Haynes, the former general counsel of the US Department of Defense. Haynes is also partly responsible for then-Defense Secretary Donald Rumsfeld, in the now world-famous memorandum, having condoned "enhanced interrogation techniques." By then Davis knew that "the likelihood of fully fair trials was miserable." He announced his resignation on Oct. 5, 2007.

He has since received letters of congratulation from colleagues, friends and even some in the intelligence community, Davis says today. In the meantime he has also testified three times in Guantanamo as a witness for the defense, but he hopes this role will soon end. Like a child looking forward to Christmas, he is counting the days before Obama's inauguration on Jan. 20, 2009. Davis is not the only one who expects the new president to put an end to this legal farce immediately after taking office. Last week, Defense Secretary Robert Gates ordered his staff to draw up a plan to close the detention facility at Guantanamo Bay in anticipation of such a request from a President Obama.

Davis's story is symbolic of a changed America, and of the country's new relationship with this strange legal construct in the middle of the Caribbean. Seven years after the Sept. 11 attacks, the military tribunals, with their absurd special rights, have lost all credibility.

It is a joke that in these seven years, the cases of only three of the 770 Guantanamo detainees have actually gone to trial. And those three trials yielded, as expected, three convictions. Of the detainees, who Rumsfeld referred to as the "worst of the worst," about 500 were released over the years, and most were sent back to their native countries without ever having been charged. Only three of the six cell wings in sections Five and Six of the camp, reserved for the supposedly most unruly prisoners, are still in operation today. In all the other cell wings, the heavy red steel doors are open and only 35 percent of the cells are still occupied. There are 255 prisoners living in Guantanamo today. The Joint Task Force Guantanamo employs 2,200 soldiers -- a bigger staff than any five-star hotel.

If he does close the camp, Obama will have ended the darkest chapter of the Bush years. But it's not as if he can simply sign away the camp and its legal history. He will inherit a difficult legacy.

Members of his transition team consult almost daily with constitutional law experts, attorneys and former members of the controversial military commissions, to which the Guantanamo tribunals were assigned by law in 2006. Obama's staff has also consulted with Morris Davis, who was confident after an hour-and-a-half meeting because "they asked the right questions."

Nevertheless, the military judges at Guantanamo seem determined to take full advantage of the Bush administration's remaining weeks. In the political no man's land following the elections, they suddenly scheduled hearings for the five presumed masterminds of the Sept. 11 attacks. Just over two weeks ago, they even went so far as to have family members of some of the victims flown in. And on Monday, the Pentagon said it has set Jan. 14 as the date for the arraignment of Abd al Rahim al Nashiri, the Saudi man accused of planning the suicide bombing of the USS Cole in 2000. The detainee will be brought to court just days before President George W. Bush leaves office. Are the judges attempting to create facts shortly before the end, thereby tying Obama's hands, as Time magazine has speculated?

These maneuvers are not the first incidents to expose the Guantanamo system as a farce. In fact, this has been clear for some time now, partly as a result of the number of those who -- like former Chief Prosecutor Davis -- were no longer willing to play along. Military police officers, court officials, defense attorneys and prosecutors have resigned and aired their doubts and criticisms in public. No other court has ever seen this many people resign from it.