Why Former Gitmo Chief Left In Protest

President Obama is once again calling for the prison at Guantanamo Bay to be shut down, even though new polls suggest most Americans want it to stay open. But the chorus of critics has gained one surprising member: former Guantanamo Chief Prosecutor Morris Davis. Host Michel Martin talks with Davis about why he now feels the facility should be closed.

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MICHEL MARTIN, HOST:

I'm Michel Martin, and this is TELL ME MORE, from NPR News. We want to begin the program today by talking about President Obama's call - again - to close the military detention facility at Guantanamo Bay. Here he is speaking at the National Defense University in Washington, D.C.

(SOUNDBITE OF SPEECH)

PRESIDENT BARACK OBAMA: I know the politics are hard. But history will cast a harsh judgment on this aspect of our fight against terrorism and those of us who failed to end it. Imagine a future 10 years from now or 20 years from now when the United States of America is still holding people who have been charged with no crime on a piece of land that is not part of our country.

MARTIN: New polls suggest the American people are still divided on whether to close the facility, but it has faced vocal criticism for years now. And one surprising voice has joined that chorus. Morris Davis is the former chief prosecutor for terrorism trials at Guantanamo Bay. He tried some of its most high-profile terror cases. But now he's calling for the facility to be closed. He's also a retired Air Force officer who retired at the rank of colonel. He's an associate professor at Howard University School of Law, and he's with us now, just minutes after the speech ended.

Colonel Davis, thank you so much for joining us.

MORRIS DAVIS: It's my pleasure. Thank you.

MARTIN: You attended this speech by invitation from the White House. Was that surprising to you, given that you've been such a critic?

DAVIS: Yeah. I thought they'd made a mistake. But I responded back, and they responded back saying they were glad I could attend. And I was really please that they made that step.

MARTIN: You've said that the president has talked the talk, but hasn't walked the walk on Guantanamo. How about - apart from contending with a heckler in the audience - first of all, how do you think that he did, and how was the speech received?

DAVIS: Well, the speech was well-received. You know, the military never wanted Guantanamo to begin with. It was something that was kind of - not kind of. It was crammed down our throat by political appointees in the Bush administration. So I think in a military audience - and it was largely a military audience - that it was a receptive group. As the president said, it's a blight on our reputation. So I think the military would be happy to get rid of this mission.

You know, the president has always been great with rhetoric. I mean, he's been great with the rhetoric back to 2008, when he said, you know, Guantanamo was an abomination and it had to be closed, and a lot of the same things he said today. So it was really a question now whether the rhetoric can be matched by reality. So that remains to be seen.

MARTIN: And needless to say, at this point, it's not just up to him. And we can talk about that in a minute, and I hope we will. But I do want to talk more about your own story. You became chief prosecutor in 2005. Did you welcome that assignment?

DAVIS: I did. You know, for an attorney, it's a once-in-a-lifetime opportunity to do something like this, to be involved in an important part of our nation's history. So when the opportunity came along, I jumped at it, and did it for a little over two years before I resigned from the position. But if I had the choice to go back and do it again, I'd do it again, because it was fascinating work with some really good people.

MARTIN: And I wanted to talk about that, because in June of 2007, you wrote an op-ed for the New York Times titled "The Guantanamo I Know." And in it, you wrote that the facility is, quote, "a clean, safe place for enemy combatants." Four months later, you resigned. What happened?

DAVIS: Well, I think Guantanamo is, as far as a physical facility goes - I think that there are a lot of Americans that are incarcerated that, if they saw Guantanamo, would trade places in a minute. It's not overcrowded. In fact, it's under-populated, really. I've eaten the food. I've seen the medical care. It's - as far as physical facilities go, it's as good as you're going to get.

But it's the underlying basis for why we went there to begin with, which was to avoid the law. You know, for 200 years, the law was our strength. And then after 9/11, we wanted to avoid it. And so Guantanamo was thought to be outside the reach of the U.S. courts, the international courts, the Cuban courts. It was a law-free zone that was going to be the perfect place to exploit people for intelligence.

When I took the job - and I think for the better part of nearly two years - I believed we were committed to having full, fair and open trials. And I hoped that we would be able to do this in a way that our grandkids would look back at Guantanamo the way we look at Nuremberg. And it was towards the end of my tenure in the summer of 2007 when some new political appointees came in above me that said, hey, wait a minute.

You know, you're not using this information obtained by waterboarding and these other techniques. If President Bush says we don't torture, who are you to say that we do? So this evidence you're not using, you need to use. And then we had the political meddling from the Bush White House. Those combination of factors led me to believe that we weren't going to do this right, and it wasn't going to be full, fair and open. And I didn't want to be a part of that.

MARTIN: If you're just joining us, we're talking with Colonel Morris Davis. He's the former chief prosecutor at Guantanamo Bay. He is now fighting to close the military prison.

You recently delivered a petition to the White House with, what, almost 400,000 signatures urging the president to close the facility. But there are two recent polls - one was by Huffington Post and I think YouGov, another was by Fox News - suggested that a slight majority of Americans favor keeping Guantanamo open. Why do you think that is?

DAVIS: I think, you know, we used to be known as the land of the free and the home of the brave, and after 9/11, we've become the constrained and the cowardly, where we've lived in this perpetual state of fear. And I think the public bought into that narrative, that these guys are all the worst of the worst. I think the Obama administration has done a poor job of educating the public.

Because I think if the public knew the truth, they would have a different opinion. I don't think the public's aware that 86 of the 166 men at Guantanamo, that we're paying almost a million dollars each per year to keep there. The CIA, the FBI, the Department of Justice, Department of Defense have unanimously agreed that those 86 men are not going to be charged with a crime. They're not an eminent threat to the U.S., and we don't want to keep them.

MARTIN: Are you surprised that a person with your profile, career military, retired at a high rank, a distinguished public servant, that you haven't had more headway?

DAVIS: I'm disappointed. I mean, I've been really surprised in the last few weeks. I think I feel more vindication out of the public stepping up and saying we agree this has got to stop. This isn't America.

MARTIN: But as we note, just to close the loop on the conversation as we began it, Congress has now determined that no funds can be used to close the facility and to relocate prisoners within the borders of the United States, as I understand it. So what happens now?

DAVIS: Well, I think - again, I think it's going to be a process of educating the public and getting Congress to quit being cowards. If Guantanamo remains as is to the end of President Obama's administration, we'll have spent another three-quarters of a billion dollars to keep 166 men in prison, half of which we don't want to keep in prison. That's not America.

The president did a nice job of laying out the argument about it being a waste of money, a waste of our prestige. It's generated bad law, and it's just unnecessary when we've got our federal prisons and our federal courts that can easily accommodate the ones that need to be confined and prosecuted. There is no good argument for Guantanamo other than just political points.

MARTIN: Are there countries that are willing to take these detainees?

DAVIS: Well, again, there are 166 that are still at Guantanamo, many that have been there for more than 11 years. They fall into three categories. You've got a group of 86 that I mentioned that have been cleared. Those should be pretty easy. Fifty-six of the 86 are from Yemen. They were in the process of being repatriated when we had the Christmas Day 2009 underwear bomber, you know, who was trained in Yemen. And that's when we quit sending people back to Yemen.

The Yemeni government wants their people back. So that would be 56 right off the top that they would take. You have others like Shaker Aamer from the U.K. that they want back. So there are a number that the countries are willing to take back if we will permit them to do so. There are some others in that group, though, that are more problematic, like the Uighurs, the Chinese Muslims that we, early on, determined weren't a threat to the U.S. They didn't hate us. They were training to fight China and China would love them back for about a day.

We have begged and bribed other countries to help us out in solving the problem we created. So Bermuda, for instance, took four of the Uighur detainees. We have never taken a single one. You would think we could be as brave as Bermuda.

In other countries, when we go to them, begging them to help us solve the problem we created, they're not particularly sympathetic when we're unwilling to help ourselves and take some of these clear detainees here. There's about 30 the administration intends to prosecute and then you've got that group of about 50, that the president mentioned, that are the ones that we don't intend to prosecute and we don't want to send home.

We detain those people saying that we're at war and, for the duration of the war, we have the right to detain the enemy, but as the president also talked about, by the end of 2014, we're going to end combat operations in Afghanistan. So this argument that these are wartime detainees - even that argument is going to evaporate come 2014. So we've either got to find a way to prosecute these people or send them home or we're going to have to create some new legal fiction to justify their detention.

MARTIN: Before we let you go, I wanted to ask, if you don't mind - you spent most of your adult life in the military. You are an officer of the court. By definition, you are a believer in the rule of law. And I just wondered if it surprises you to find, at this stage of your life, that you've spent the last couple of years basically fighting the government that you served. You know, you swore to defend the Constitution of the United States and, obviously, you very much believe in your country. You've served it for such a long time.

I'm just wondering if it's surprising to you, to find that this is what you're doing at this stage of your life.

DAVIS: Well, it certainly isn't what I had planned or envisioned, but you're exactly right. My father was a 100 percent disabled veteran of World War II who believed very strongly in his country and was never better about being 100 percent disabled, you know, going off to the war as a healthy young man and coming back, you know, totally disabled.

So I think he instilled that sense of duty and honor and commitment to the country. So I'm disappointed in my government, but I believe in my country and I believe in the fundamental goodness of the American people. They get scared and, for the last 11 years, people have done their best to keep them in a state of fear. But I think, at the end of the day, the Constitution triumphs. It's been encouraging, you know, lately that people seem to be coming around to, you know, some of the things I've argued for a number of years, so I'm not ready to give up. I mean, I joined the military to defend the Constitution and I think I'm still fighting that fight.

MARTIN: Colonel Morris Davis was the chief prosecutor at Guantanamo Bay from 2005 to 2007. He was kind enough to join us in our Washington, D.C. studios. Colonel Davis, thank you so much for joining us.

DAVIS: Thank you. I enjoyed it.

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