Historical perspective on Guantanamo Bay: the arrival of the high value detainees.

• Author: Davis, Morris D.

Detainees were sent to Guantanamo Bay to be exploited for intelligence purposes, not to perfect criminal cases against them. The effort to construct credible criminal cases based upon intelligence was going to be problematic, and it became even more so when President George W. Bush decided in the summer of 2006 to transfer high value detainees from secret Central Intelligence Agency sites, where some were subjected to torture, to military detention at Guantanamo Bay. The former chief prosecutor for the military commissions describes the decision to create "clean teams" of Federal Bureau of Investigation agents and military law enforcement personnel to interview the high value detainees anew at Guantanamo Bay in hopes of separating the criminal prosecution effort from the earlier intelligence gathering phase. The merits of that decision will be tested as President Barack Obama's administration moves forward with the prosecution of Khalid Sheikh Mohammed and the other high value detainees.

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"A nation that forgets its past is doomed to repeat it"

--Winston Churchill

1. INTRODUCTION

   Two things happened on Monday, August 29, 2005, that were unrelated, except perhaps in a symbolic sense: Hurricane Katrina devastated New Orleans and the moving company packed my household goods to take me and my family to Washington so I could become the Chief Prosecutor for the Military Commissions at Guantanamo Bay, Cuba.

   I had agreed to accept the job as Chief Prosecutor a few weeks earlier following an interview with former Defense Department General Counsel Jim Haynes at his Pentagon office. At the time, I was excited about this historic opportunity and optimistic that I could play an important role in holding terrorists accountable in a system of justice that reflected American values and our commitment to the rule of law. For an attorney, the chance to lead a talented multi-agency prosecution team assembled to conduct the first military commissions since World War II was more than a once-in-a-lifetime opportunity; most lawyers never got a chance like this.

   Thanks to Hurricane Katrina, the cross-country drive from Cheyenne, Wyoming, to the Virginia suburbs of Washington took on a sense of foreboding that presaged the twenty-five months I served as Chief Prosecutor. The long drive was my first experience buying gasoline that cost more than three dollars a gallon, well over the military's travel reimbursement rate, which meant the new job came at a personal cost right from the start. The radio news coverage as my family and I passed from town to town was ominous as the impact of Katrina became more apparent, and the mood at every stop was subdued, similar to the mood that enveloped the country after 9/11. Just as the nation had done four years earlier when terrorists struck, it looked to the Bush Administration for leadership in the wake of a disaster.

   My involvement in the military commissions began in early September 2005, nearly four years after President Bush authorized them in a military order issued on November 13, 2001. (1) I became the third Chief Prosecutor following Colonel Fred Borch, who left amid controversy within the prosecution team in early 2004 and retired from the Army shortly thereafter, and Colonel Bob Swann, who retired from the Army in September 2005 and remained on the prosecution team as a civilian attorney to work full-time on the high value detainee cases.

   A little more than two years later, my initial excitement and optimism was gone. I agreed to serve as Chief Prosecutor for as long as I believed we were committed to providing full, fair, and open trials. At a presentation at Case Western Reserve University School of Law in March 2006, someone asked what I would do if I ever concluded we would not have full, fair, and open trials, and I responded that I would call it a day and walk away. Well, that day came on October 4, 2007, when I learned that Deputy Secretary of Defense Gordon England had signed orders placing me under the command of Brigadier General Tom Hartmann and Department of Defense General Counsel Jim Haynes, men who believed waterboarding was an acceptable way to extract confessions for use in criminal proceedings conducted by the U.S., including cases that could potentially result in the death penalty. I had instructed the prosecutors as early as October 2005 that we would not use any evidence obtained by waterboarding or other unduly coercive interrogation techniques, so a few hours after being placed under the command of Hartmann and Haynes I submitted a request to resign as Chief Prosecutor. My request was granted. (2)

   Some of what occurred in the period between 2005 and 2007 remains classified, but many of the details are now in the public domain and available for examination and discussion. I had a role in shaping some of the decisions that remain the subject of debate today, so, lest we forget, I offer a personal perspective on a significant chapter in the Guantanamo Bay legacy.

2. THE TRANSFER OF THE HIGH VALUE DETAINEES TO DEPARTMENT OF DEFENSE CUSTODY AT THE U.S. NAVAL STATION GUANTANAMO BAY, CUBA

   More than three years had elapsed between the time the U.S. captured and detained some of its high value detainees and the time I became the Chief Prosecutor in September 2005. (3) The circumstances surrounding how the detainees were captured, detained, and interrogated at secret CIA facilities have been and continue to be vigorously debated and are not discussed in detail here. (4) Suffice it to say, the methods employed to elicit in formation from the high value detainees prior to their transfer to Department of Defense (DOD) custody caused the prosecution team to doubt that any of their post-capture statements would be admissible at trial, even though the evidentiary rules in military commissions are more lenient than the rules in federal courts and courts-martial. (5) Given those doubts, when President Bush made the decision in 2006 to transfer the high value...