The Last Days of Guantanamo An American Nightmare Could Soon End
Guantanamo prisoners photographed in the early days of the prison camp: "We've been holding these guys for years. How are we going to explain that? We need convictions."Foto: DDP
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.
The Military Police Officer
Sean Baker's story began on Jan. 24, 2003. A military drill was scheduled to take place that day in the Oscar block at Camp Delta. Baker, 36, a member of the 438th Company of the US Military Police, was dressed in prison-issued orange overalls and was ordered to refuse to leave his cell. His fellow soldiers believed he was a real prisoner -- that was the point of the exercise.
Baker was instructed to cause a commotion in cell 27 and hide underneath a bed. The goal was to train soldiers in how to extract uncooperative prisoners, of which there were many at the camp. Baker was told to use the codeword "red" if he wanted to terminate the exercise, and a supervisor would intervene.
Baker ignored the guards' orders to come to the cell door and remained under the bed, as arranged. Then the door opened and soldiers rushed into the cell, pulled him out and turned him onto his back. Someone put two hands around his neck and pressed down, as if to strangle him. Baker said the safe word, but it came out so quietly that no one heard him.
He tried to say the word again, but not before the men began slamming his head against the steel floor of the cell, again and again, until one of the attackers yelled: "He's a US soldier, he is one of us." Perhaps someone heard the safeword after all or noticed the uniform underneath the orange overalls. Baker was taken away and given medical attention.
Almost six years later, he is sitting in the living room of his house in the Kentucky hills. He puts a box of medications on the table. He takes 42 pills a day on four days of the week, and 39 pills a day on the other three days. Doctors at a Veterans Administration hospital have certified him as being fully disabled. He has severe brain damage. Without the pills he would have regular epileptic seizures.
Baker, a patriotic man who voted for John McCain in the last presidential election, has now hired an attorney. He was once promised a full investigation into the incident, but that never materialized. Baker has since gone public with his case. He wants his fellow citizens to see what happens to an American who is mistaken for a prisoner at Guantanamo.
In October 2004, more than a year and a half after military police officer Baker was severely beaten in Cell 27, Lieutenant Colonel Stephen Abraham, 48, was sitting in a windowless room in Langley, Virginia, in a building that houses the counterterrorism unit of the US foreign intelligence agency, the CIA.
Abraham, a member of a Guantanamo military tribunal, was in charge of collecting evidence for the trials. His job was to search intelligence data for evidence. Under a summer 2004 US Supreme Court ruling, this also included evidence that could potentially exonerate the defendants. The CIA had promised Abraham that he would have access to all necessary documents at the Langley facility.
He was not permitted to bring along his own computer, nor was he allowed to copy any data records. He was permitted to take notes, but nothing more than that. Nevertheless, with 26 years in military intelligence under his belt, Abraham had experience in taking notes.
Abraham switched on the laptop on the table in front of him and accessed a classified database, ready to begin examining the data. But all he saw were tens of thousands of pages of unorganized data, minutes and reports, a tangled mess of information. Within minutes, he realized that not a single dossier of the material had been prepared for the tribunals. There wasn't even a search function.
"It was pure garbage," Abraham says today. "There was no way, I realized terribly fast, that anything could be done with this material." At the time, he says, he thought that if this was supposed to be the CIA's response to the Supreme Court's demand for fair trials, it was nothing but an affront to the rule of law.
"What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence," he later wrote in a sworn affidavit. It was the first time that a Guantanamo insider had publicly criticized the tribunals. In court, Abraham consistently argued for the release of the detainees. Today he says: "Coming from a family in which very few members survived the Holocaust, I am very cautious about making comparisons to Nazi Germany. But I have to say that I am convinced that the best legal comparison to the Guantanamo tribunal system was the Nazi Volksgericht (People's Court)." Both claimed to "serve state interests but go no regard to the rights of individuals."
Abraham now works as an attorney specializing in real estate.
The Military Prosecutor
In September 2008, Lieutenant Colonel Darrel Vandeveld resigned from his appointment as military prosecutor in Guantanamo because, he says, he recognized the "stain of Guantanamo not simply on America's standing in the world, but as part of history we cannot undo." Today, he says, his only regret is that it took him so long to realize this. Vandeveld likes to call himself -- without a trace of irony -- a "veteran of the so-called global war on terrorism."
Vandeveld, 48, is a thoughtful man, a devout Catholic and a good soldier. He volunteered for military service immediately after the Sept. 11 attacks. He spent the next few years in Bosnia, Afghanistan and Iraq, where his superiors praised him for his courage.
In the summer of 2007, Vandeveld was transferred to Guantanamo, where he served as a prosecutor in the case of Mohammed Jawad, an Afghan.
Jawad was arrested in the Afghan capital Kabul in 2002, when he was 16 or 17, and accused of participating in a grenade attack on a US military vehicle. All Vandeveld knew about the case was that Jawad had supposedly confessed to throwing a grenade.
The military prosecutor began examining the existing evidence, which was kept in a lockbox with a rusted combination lock. "It had obviously not been opened for a long time," says Vandeveld. After reviewing the files, he realized that Jawad had been abused at Guantanamo. The teenager was among the prisoners who had been subjected to forced sleep deprivation, a method the guards referred to as the "Frequent Flyer Program." Every two hours, the prisoners were woken up and moved to a different cell. Vandeveld also learned that Jawad had attempted to commit suicide several times and could in fact be innocent. There was evidence to suggest that two other Afghans may have committed the attack instead. But the relevant records were kept from the defense "for reasons of national security," and even Vandeveld never gained access to the documents.
After this experience Vandeveld, for the first time in his life, no longer wanted to be a soldier. Because he was bound to professional confidentiality, he wrote to a Jesuit priest: "I am beginning to have great misgivings about what I am doing and about what we are doing as a country. I no longer want to participate in the system, but I lack the courage to quit. Please pray that I find the moral courage to pick up the cross and follow Jesus."
Finally, on Sept. 22 of this year, Vandeveld could no longer bear the moral conflict and, in a four-page statement, requested a transfer. Since then, his former superiors have been trying to have him declared unfit to plead. "They are treating me like a leper, like a criminal," says Vandeveld. His wife, reacting to the strain, has implored him not to give any more interviews. But Vandeveld's conscience is clear, and his greatest wish is that the "shame of Guantanamo" be brought to an end. Like all of the others who have resigned their positions, Vandeveld doesn't understand how it came to pass that "America's army and its constitution were so sullied."
The End of Guantamo
But now the end of the Guantanamo system is in sight. "The big question is how can we put an end to these seven years of failure?" says military law expert Eugene Fidell, a visiting lecturer at Yale Law School. He no longer believes that Obama will point to a way out of the dilemma on his first day in office. "I think Obama will first suspend the military commissions system to freeze the procedures," says Fidell.
Like many other legal scholars, Fidell divides the remaining 255 prisoners into three groups. The first group, estimated at 50 to 80 prisoners, consists of those whose release was already approved by the administration of President George W. Bush but who cannot be sent home because they are likely to face torture or repression in their native countries. They include 17 Chinese Uyghurs, as well as Algerians and Libyans. Constitutional law experts say this is purely a diplomatic issue. Human rights organizations and the US government are currently trying to convince other countries, including some in Europe, to accept the detainees.
On Dec. 11, the Portuguese Foreign Minister Luís Amado wrote: "The time has come for the European Union to step forward. As a matter of principle and coherence, we should send a clear signal of our willingness to help the US government in that regard, namely through the resettlement of detainees. As far as the Portuguese government is concerned, we will be available to participate." His statement indicated it is now possible a solution will emerge. The acceptance of some of the detainees by European countries could become an inauguration gift of sorts for Obama.
Soon after, Germany became the second EU country to signal that it didn't want to be responsible for a failure to close Guantanamo. A spokesman for the Foreign Ministry confirmed Monday that Foreign Minister Frank-Walter Steinmeier had ordered his staff to research the legal and political issues surrounding the possibility of Germany taking in former Guantanamo prisoners. A government spokesperson said the country is considering taking in Guantanamo inmates who have not been charged in the US and who have become stateless or are threatened with torture or persecution if they return to the countries from where they came. At their most recent meeting, however, the federal interior minister and his counterparts at the state level agreed that no concrete offers would be made on the issue until a European agreement can be reached on taking in former Guantanamo inmates.
Meanwhile, the second group encompasses all those who could be indicted based on existing evidence: 80 prisoners, according to the Bush administration, but no more than 50, in Fidell's assessment. Morris Davis, the former chief prosecutor, estimates this number could even be as low as 25 to 30. The presumed masterminds of the Sept. 11 attacks, among them Khalid Sheikh Mohammed, are part of this group.
"These cases will be prosecutable in US Federal Courts," says Fidell. "We are used to dealing with terrorism cases in these courts." He notes that federal courts already have provisions that allow them to hold closed hearings in the even there is truly classified information that could be vital to national security. In Fidell's opinion, not even a reformed military court system would be an option for Obama. The term "military commissions," he notes, already triggers "allergic reactions" throughout the country now.
The third group in Guantanamo is the most problematic, because it includes prisoners against whom there is insufficient evidence for a trial. Nevertheless, most of them are people no one wants to release, because they are believed to pose a risk of committing future attacks. The legal basis for the Guantanamo military tribunals made it possible to hold these prisoners indefinitely, or at least for as long as the war on terror continues. It is still impossible to predict how Obama will propose to solve the problem of preventive detention.
And how will American federal courts deal with statements made under torture?
"There will be a big debate around the torture issue," Fidell predicts. In the end, he believes that the courts could be forced to take the approach once taken with Al Capone. When the courts were unable to convict Capone on charges of murder and extortion, he was sentenced for tax evasion. "Maybe some people will wind up getting prosecuted for things other than 9/11," Fidell says.
This also applies to Khalid Sheikh Mohammed, one of the three men who the CIA would later admit it had submitted to the practice known as "water-boarding." The method, probably approved by Bush himself, in which the prisoner is made to believe that he is about to drown, is considered torture.
Ironically, it is possible that the confessions of the man who confessed the most of all the Guantanamo detainees -- the one charged with masterminding the Sept. 11 attacks -- could end up being irrelevant in a US federal court.
There is, however, another path available to the courts. An indictment was also filed against Mohammed back in 1996 when he and his nephew, Ramzi Ahmed Yussuf, were accused of plotting to blow up 12 American commercial airliners over the Pacific Ocean. Mohammed could be convicted on those charges, after all. Obtaining that conviction, however, would not have required abducting him, torturing him and bringing him to Guantanamo.