UNFORGIVABLE BEHAVIOR, INADMISSIBLE EVIDENCE
By Morris Davis
New York Times
February 17, 2008
WASHINGTON -- Twenty-seven years ago, in the final days of the Iran hostage crisis, the C.I.A.’s Tehran station chief, Tom Ahern, faced his principal interrogator for the last time. The interrogator said the abuse Mr. Ahern had suffered was inconsistent with his own personal values and with the values of Islam and, as if to wipe the slate clean, he offered Mr. Ahern a chance to abuse him just as he had abused the hostages. Mr. Ahern looked the interrogator in the eyes and said, “We don’t do stuff like that.”
Today, Tom Ahern might have to say: “We don’t do stuff like that very often.” Or, “We generally don’t do stuff like that.” That is a shame. Virtues requiring caveats are not virtues. Saying a man is honest is a compliment. Saying a man is “generally” honest or honest “quite often” means he lies. The mistreatment of detainees, like honesty, is all or nothing: We either do stuff like that or we do not. It is in our national interest to restore our reputation for the latter. (All opinions here are my own, and do not necessarily reflect those of the Air Force or Defense Department.)
Some accounts of detainee abuse in the war on terrorism are overblown, but others are not. After humiliating prisoners at Abu Ghraib by forcing them to strip naked and lie in a pile like a stack of firewood or simulating the drowning of detainees to persuade them to talk, we can no longer say we “don’t do stuff like that” -- and we do not have to look far to see the damage. The disclosure last month of a manual for Canadian diplomats listing the United States as a country where prisoners might face torture, referring specifically to Guantánamo Bay, Cuba, was an embarrassment on both sides of the border.
During the Persian Gulf war in 1991, the Iraqi armed forces surrendered by the tens of thousands because they believed Americans would treat them humanely. Our troops reached the outskirts of Baghdad in 100 hours and suffered fewer than 150 combat-related fatalities in large part because of these mass surrenders.
Would it have been different if the perception of us as purveyors of torture and humiliation existed back then? Would tens of thousands of Iraqis have put down their weapons if they believed they were going to be humiliated, abused or tortured, or would they have fought? Had they chosen to fight, the war would have lasted longer and cost more and casualties would have skyrocketed. Our reputation in 1991 as the good guys paid dividends and supported our national interests. We must regain that reputation.
We can start by renouncing cruel, inhuman, and degrading treatment of detainees and unreservedly committing to uphold the Detainee Treatment Act, which passed Congress in 2005 but was diluted by a presidential signing statement. We must also reaffirm our adherence to the United Nations Convention Against Torture, which the Senate ratified in 1990.
Just as important, we need to come to grips with the practice known as waterboarding, the simulated drowning of a person to persuade him to talk. There was some progress in recent weeks: the C.I.A.’s director, Gen. Michael Hayden, told Congress that the practice may be illegal under current law; the director of national intelligence, Michael McConnell, told a reporter, “Whether it’s torture by anybody else’s definition, for me it would be torture”; Attorney General Michael Mukasey, after being asked if waterboarding would be torture if done to him, said that “I would feel that it was”; and on Wednesday, Congress passed a law forbidding the C.I.A. to use waterboarding and other harsh techniques.
Why a few others in positions of power still find it so difficult to admit the obvious about waterboarding is astounding. We can never retake the moral high ground when we claim the right to do unto others that which we would vehemently condemn if done to us.
Once we condemn and stop all waterboarding, what do we do in cases where it was conducted? An obvious step is to prohibit the use of evidence derived by waterboarding in criminal proceedings against detainees. Regardless of whether the technique has produced actionable intelligence, it did not produce reliable evidence with a place in our justice system. Imagine the outrage if the Iranian government tied down an American, convinced him the choices were to cooperate or die, and then used his “confession” as evidence in a death-penalty trial.
My policy as the chief prosecutor for the military commissions at Guantánamo was that evidence derived through waterboarding was off limits. That should still be our policy. To do otherwise is not only an affront to American justice, it will potentially put prosecutors at risk for using illegally obtained evidence.
Unfortunately, I was overruled on the question, and I resigned my position to call attention to the issue -- efforts that were hampered by my being placed under a gag rule and ordered not to testify at a Senate hearing. While some high-level military and civilian officials have rightly expressed indignation on the issue, the current state can be described generally as indifference and inaction.
At a Senate hearing in December, the legal adviser for the military commissions, Brig. Gen. Thomas Hartmann, refused to rule out using evidence obtained by waterboarding. Afterward, Senator Lindsey Graham, who is also a lawyer in the Air Force Reserves, said that no military judge would allow the introduction of such evidence. I hope Senator Graham is right about military judges, and it is unfortunate that any might be put in a position where he has to make such a decision.
Regrettably, at a Pentagon press briefing last week announcing that Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and five others had been charged and faced the death penalty, General Hartmann again declined to rule out the use of evidence acquired through waterboarding. Military justice has a proud history; this was not one of its finer moments.
That is not to say those subjected to waterboarding get a free pass. If the prosecution can build a persuasive case without using the coerced “confession,” then whether a defendant endured waterboarding is immaterial in determining guilt or innocence.
There are some bad men at Guantánamo Bay and a few deserve death, but only after trials we can truthfully call full, fair, and open. In that service, we must declare that evidence obtained by waterboarding be banned in every American system of justice. We must restore our reputation as the good guys who refuse to stoop to the level of our adversaries. We are Americans, and we should be able to state with conviction, “We don’t do stuff like that.”
--Morris Davis, an Air Force colonel, was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, from 2005 to 2007.
CBC: AUDIO INTERVIEW WITH COL. MORRIS DAVIS -- PART I
December 11, 2007
PART 1 of Anna-Maria Tramonti's interview with US COLONEL MORRIS DAVIS from the CBC-RADIO "THE CURRENT" website:
When Colonel Morris Davis laid charges against Omar Khadr last February, he was a true believer. As the chief prosecutor at the U.S. military commissions, he was a vocal supporter of what his government was doing at Guantanamo Bay. In fact, when he wasn't prosecuting cases there, Colonel Morris traveled across the United States, preaching about the humane living conditions detainees enjoyed and the strong legal foundation of the commissions that would prosecute them.
But today, Colonel Morris is telling a different story. He is now the former chief prosecutor at Guantanamo Bay. He resigned to protest the undue political pressure he says he was feeling from the Pentagon. And he isn't alone . Colonel Morris is the latest in a growing line of military officials who have stepped down over concerns about how the United States is interrogating and prosecuting its so-called enemy combatants.
Davis has received the following awards and recognition:
Outstanding Judge Advocate for Headquarters Air Force in 1990.
Air Force Meritorious Service Medal with four oak leaf clusters
Air Force Commendation Medal with two oak leaf clusters
Air Force Achievement Medal with one oak leaf cluster
Southwest Asia Service Medal
CBC: AUDIO INTERVIEW WITH U.S. COLONEL MORRIS DAVIS -- PART 2
PART 2 of Anna-Maria Tramonti's interview with US COLONEL MORRIS DAVIS from the CBC-RADIO "THE CURRENT" website:http://www.cbc.ca/thecurrent/2007/200712/20071211.html