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"We talk about the war on terrorism, and it seems more like a war on information" - Col. Morris Davis interviewed about Manning trial

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From The Scott Horton Show program notes for August 21:

Col. Morris Davis, former Guantanamo chief prosecutor, discusses his resignation after “torture memo” author Jim Haynes took over command; how much time Bradley Manning is likely to serve of his 35 year sentence; the chilling effect on potential government whistleblowers; and why the war on terror is really a war on information.

Podcast here, and transcript below the fold:

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Scott Horton interviews Col. Morris Davis
The Scott Horton Show
August 21, 2013

Transcript

SCOTT HORTON: All right, y’all. Welcome back to the show. It’s The Scott Horton Show. I’m him. Full interview archives are at scotthorton.org, almost 3,000 interviews now going back to 2003. Also you can follow me on Facebook, Twitter and YouTube at /scotthortonshow.

All right. Our guest today is Col. Morris Davis. He was a prosecutor, I think the chief prosecutor, down at Guantanamo Bay and yet resigned rather than continue to participate, back in 2007, I believe, over the appointment of torture team lawyer Michael Haynes to be in charge of, overall boss of the prosecutors back at that time. Is that correct, Col. Davis? Welcome to the show.

MORRIS DAVIS: Hey, thank you. Yep, you’re correct.

SCOTT HORTON: All right. So can you tell us real quick, and obviously I want to ask you all about Bradley Manning here, but real quick can you tell us about who Michael Haynes was and how it was that his appointment led you to resign?

MORRIS DAVIS: Yeah. It was actually Jim Haynes, who was the DOD –

SCOTT HORTON: Oh, that’s right.

MORRIS DAVIS: – yep, DOD General Counsel who was the author –

SCOTT HORTON: Who’s Michael Haynes? I’m sorry.

MORRIS DAVIS: Yes. William J. Haynes. He went by Jim. But he was the author of the – you probably remember the memo that Donald Rumsfeld signed that authorized the enhanced interrogation techniques where he’d written in his own handwriting, “I stand 12 hours a day.” Mr. Haynes was the DOD General Counsel. He was the author of the memo that was referred to as the torture memo. And when it became clear that he was, you know, over me in the chain of command, that I was obligated to follow his orders, is when I decided to resign, because my policy had been for two years we weren’t going to use any evidence obtained by the enhanced interrogation techniques, or what most people call torture, and he had a different opinion. So I figured that was time to, time to quit.

SCOTT HORTON: All right. So now you’ve been keeping up very closely with the Manning case, I can tell, and I’ve been quoting you lately because it seems like every time somebody talks about how many years he’s facing, you tell us what that really means once you factor in good behavior and whatever, and it always is a little bit better, and this morning is no exception. He’s been sentenced by the court to 35 years in a military prison for the leak of the Afghan and Iraq war logs, the State Department cables, etcetera, and you’re saying, I believe, that he could be facing as little as 10 actual years in prison, is that correct?

MORRIS DAVIS: It’s not an exact number, but he’s likely looking at something in the like eight or nine more years of confinement is when I would expect him to be released. So he would be probably 33 or 34 years old when he gets out of confinement, which I think is, you know, good news, that he’s still got a life ahead of him, that when this process started I think there were a lot of folks that didn’t expect that.

SCOTT HORTON: Mmmhmm. Well, it seems like they could have spared the trial and just convicted him on what he had already pleaded guilty to and sentenced him to that, right?

MORRIS DAVIS: Oh, yeah. No, I agree with you entirely. I don’t see where the government really gained anything by pressing ahead other than probably another five years of appeals now, because, you know, as you mentioned, he stepped up to the plate and admitted, you know, that he was wrong to release classified information and pled guilty, and that subjected him to a 20-year sentence, and the government could have accepted that and the case would have been put to bed, over and done, and this would have been history. But instead the government chose to press on with the aiding the enemy charge, which carries, you know, life without parole. And ultimately the judge acquitted him of that charge, gave him a 35-year sentence, and all the government really got out of it was an extra year or two of real time in confinement and probably another four or five years of appeals.

SCOTT HORTON: Yeah, they seem to generate quite a few reasons for appeal during the case that they tried to put on to get that conviction, which as I say they failed to get.

MORRIS DAVIS: Yeah, and it was unnecessary. I think it was a case of overcharging, as often happens where the government, you know, I think they viewed this case at the outset as – if you recall, you know, before the documents were released on WikiLeaks, the government portrayed this as a calamitous event. “People are going to die. This is going to be, you know, just a cataclysmic event.” And it was kind of like Y2K. We had all this hype about how bad it was going to be, and it kind of came and went and not much happened. But I think once the government kind of got on that horse, they weren’t going to back off, and they pressed it all the way to the end and ultimately lost on that charge. And I think the final result, at least in my estimation, is a pretty reasonable outcome.

SCOTT HORTON: Mmmhmm. All right, now, they certainly failed, as you say, to win a conviction. They failed to prove the aiding the enemy charge, but I wonder if you think, as close attention as you paid to it, did they prove any actual fact that was in dispute after the initial plea of guilty to the 20 things that he did plead guilty to? Because it seemed from here, and, you know, there were not many reporters covering the day-to-day in the newspaper, that kind of thing, so, you know, we do our best here interviewing Nathan Fuller and Alexa O’Brien and them –

MORRIS DAVIS: Yeah.

SCOTT HORTON: – but it seemed from here as though every point that they were trying to win, that they failed, on the spreadsheet and on the Garani video, etcetera, etcetera, etcetera, etcetera.

MORRIS DAVIS: Well, obviously the judge found him guilty of some additional charges under the Espionage Act, and I think that’s, you know, fertile ground for appeal. I mean, and I was an expert witness for Pvt. Manning on the documents from Guantanamo, and I think there’s – you know, my testimony was there was nothing in those documents or very little that I couldn’t find open source. So I think there’s a lot of fertile ground on appeal to challenge those charges. But you’re right. I mean, as far as there being harm – you know, even the government witnesses said they couldn’t identify anyone that had been hurt or killed or suffered harm as a result of any of these documents being leaked, so I think, again I think it’s a case of the government just overcharging and, you know, being reluctant to back down when it became apparent that this case wasn’t as severe as they initially had forecast.

SCOTT HORTON: Mmmhmm. Well and I think they were trying to undermine his entire narrative of how and why he decided to do this, by saying that the spreadsheet and the Garani massacre video proved that he started leaking and preparing to leak long before his narrative and that therefore he was a secret agent of Julian Assange or whatever kind of thing along those lines, and attempting to really cast him as being dishonest about what it was that he did and when and why that he did it, and was there any more to that case, and did any of it stand up at all?

MORRIS DAVIS: It doesn’t appear to. Now the judge didn’t have to articulate entirely, you know, what the basis for her findings were –

SCOTT HORTON: Right.

MORRIS DAVIS: – so it’s difficult to say what she, you know, found the government proved beyond a reasonable doubt and what they didn’t, although she did release some written findings but it’s not a, you know, a full accounting. Again, I just don’t see where the government gained much that they wouldn’t have gotten by just accepting his guilty pleas and putting this case to bed other than dragging it out for several more weeks and buying themselves several more years’ worth of appeals. I think as far as deterrent effect, I mean I don’t know anybody that knows anything about Pvt. Manning and what he’s been through up to this point that says, “Gee, I wish I could get some of that.” So I think the deterrent effect, regardless of what the sentence was today, there had already been that deterrent effect that nobody wanted to be the next Pvt. Manning.

SCOTT HORTON: Mmmhmm. Okay, now, it’s the other Scott Horton that’s the lawyer on international law –

MORRIS DAVIS: Right.

SCOTT HORTON: – and human rights and all of these things. I’m just some guy, and I’m looking from a position of what just seems like fairness to me. I don’t understand the details of the military law, but I wonder if you could help me out –

MORRIS DAVIS: Okay.

SCOTT HORTON: – because it seemed to me that on the question of being held for three years without a trial, on the question of his pretrial abuse, some would call it torture, you just referred to it, I’ll let you expand on that however you like, characterize that however you like, but then also on the issue of the command influence, of the Commander in Chief, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff all in effect, I would say, commanding the judge to convict him, to find him guilty on something more than he was pleading to, by their public pronouncements that he had broken the law, something that Richard Nixon had accidentally done in the Manson case where he wasn’t even in the chain of command anywhere, where it’s a state case, had nothing to do with him being the president, and Nixon – Nixon! the devil himself! – had said, “Oh, my God! I’m so sorry I said that! I take that back. Don’t listen to me. I don’t know whether he did it or not, let the court decide, ah da da da da.” But in this case it’s perfectly fine for the top three people in the military chain of command to pronounce him guilty to a military judge, or publicly where she can hear it anyway.

MORRIS DAVIS: Right. Well, it appears to me that – and, again, my exposure to the judge was the, you know, four or five hours that I was on the witness stand. It appeared to me that she was pretty independent in making her deci– I mean, it appeared to me she was equally hard on both sides. She found him not guilty to aiding the enemy charge, which was the real plum that the government wanted. She gave him a 35-year sentence that allows him to likely be a free man by the time he’s in his early to mid 30s, so I just don’t see where she knuckled under to any government pressures. You know, I think certainly if I was on the defense side, I would challenge on appeal everything possible, because there’s nothing to lose by raising it, but I just don’t see where they’re likely to prevail on the command influence claim.

SCOTT HORTON: Okay, well now, so what about the abuse and the speedy trial? Because again –

MORRIS DAVIS: Yeah.

SCOTT HORTON: – I don’t know the particulars of the military law, but if you’re the judge in this case, don’t you have to set him free if he’s been held for three years without trial? Isn’t that like at some point there has to be a deterrent effect against the executive branch for holding someone that long, such as if you do hold him that long, we’ll go ahead and just let him go.

MORRIS DAVIS: Right. Yeah, well, certainly, again, that’s, you know, I think, fertile ground for appeal to challenge it, as they did at the trial level and lost. You know, the judge in her findings excluded significant periods of time from the speedy trial calculation. But again, I noted today on Twitter there were a number of people saying that, you know, he was held longer than anyone in the history of the military before he faced trial. Which is wrong. I mean, Maj. Nidal Hasan at Fort Hood, whose trial just started this month, was put in confinement in November of 2009, so that was actually a longer period of time than Pvt. Manning. But again, you know, there are periods of time that are legitimately excluded from the calculation for the speedy trial clock, and the judge’s findings were that these periods were properly excluded. But I think again on appeal I would certainly fight tooth and nail if I was the defense to convince the appellate court that the judge erred in potentially – I mean, the result would be to dismiss the charges, so. And I think for Pvt. Manning the good news is as things stand right now is the worst-case scenario. I mean, so the worst case is by the time he’s in his early to mid 30s he’s a free man, and from here on – I mean, today was Round One. The trial level was Round One, and there are four levels of appeal, and things can only stay the same or get better. So I would fight it out at, you know, each of the next four rounds and hopefully come out better than he is now.

SCOTT HORTON: And now I guess the judge did take the abuse at Quantico into account and knocked a few days off for that, right? So does that mean that that’s also ground for appeal, or do I even have that fact right in the first place there?

MORRIS DAVIS: Yeah, you’re right. I think she gave him a three-for-one credit for the period that she found to be improper pretrial punishment. But, you know, the defense had asked for substantially more, and again that’s another area. I mean, if I was the defense, I wouldn’t give up on any, any argument, so I would challenge, you know, the pretrial abuse as well.

SCOTT HORTON: Yeah. All right, and now can you tell us more about your part of the case, about the Guantanamo leak –

MORRIS DAVIS: Right.

SCOTT HORTON: – and what you had to say for the defense there?

MORRIS DAVIS: Yeah, what Mr. Coombs had asked me to do was to review – you know, some of the 700,000 documents that Pvt. Manning provided to WikiLeaks were documents from Guantanamo that I was familiar with from the two years I was the chief prosecutor, and they were called the Detainee Assessment Briefs, or what we called baseball cards. It’s kind of like a narrative summary of who each of the detainees were. You know, height, weight, where they’re from, you know, kind of the biographical information. Rather than charge every one of those documents, the government chose five particular Detainee Assessment Briefs as kind of being a representative sampling of the larger group. And so what Mr. Coombs had me do is to take the classified document and for every fact in the document to go out open source and see if that same information was available. And I took a highlighter and highlighted in the classified document and then in open source materials where I could find the same information. And, you know, I would say 90 to 95% of the facts in the classified documents, you can go on Google and find the same thing. So my expert opinion was that there was no benefit to Al Qaeda or harm to the US by releasing these classified documents when that same information, or perhaps even more accurate information, is publicly available on the internet.

SCOTT HORTON: Right. Or just down to your local Barnes & Noble, The Guantanamo Files by the great Andy Worthington is for sale.

MORRIS DAVIS: Oh, exactly. I can’t – I, I couldn’t give the names of three of the individuals that were part of that group of five, but as I said at trial, three of them, there’s a movie about them and how they got from England to – so, you know, any kid with an iPhone and 30 seconds of time can figure out who those three people are. So, you know, there was nothing – you know, I think what happened here is it was an embarrassment to the United States but there was no significant harm, and I think, you know, the government, again, I think just overreached on this and tried to overcharge and make more of it than there really was.

SCOTT HORTON: Mmmhmm. Well, you know, it’s been interesting to me about that, that on the specifics, and of course, you know, as you said, the very worst case scenario is already over with, it can only get better from here, so I would hate to give the state ammunition in this case or whatever, but it seems to me like they have a good complaint that he got us kicked out of Iraq, and they wanted to stay forever, and you talk about cost to America, it’s huge. But they can’t admit that it was their corrupt interest that was trying to stay against the insistence and the will of the Iraqi people and was trying to force Maliki to give the immunity deal so that they could stay forever. But one of the WikiLeaks came out at the last minute about the execution of an entire family and the calling in of an air strike to cover up the evidence that gave Maliki all the cover he needed to say, “You know what? Thanks, but don’t let the door hit you in the ass on the way out.” And so they lost Iraq because of Bradley Manning, but they can’t claim that they wanted to keep it. So they can’t admit that that was harm that came. The only thing that they can do is admit that no particular Iraqi informant ever got hit because his name was in a WikiLeak. They can address that level of damage, and then they’re quite right, I wouldn’t dispute that, and it does undermine their whole theory as they try to smear Manning and Assange both that they have blood on their hands, blood on their hands, blood on their hands. They really don’t have any evidence of that –

MORRIS DAVIS: Right.

SCOTT HORTON: – but, but they do have the loss of Iraq. They have the loss of the Mubarak dictatorship, well at least for 2½ years, in Egypt. That cost America bloody too, in a way, but they can’t claim that. “We lost a dictatorship for 2½ years! That darn Manning.” And so here he’s undermined America’s illegitimate interests around the world all over the place where they can’t complain about it with a straight face. Isn’t that fun?

MORRIS DAVIS: Yeah. I know. I mean, I think there’s certainly, you know, both with Manning and Edward Snowden, there are going to be years and years and years of debate over how history will view them, and I think they’re – I can tell you like with Manning, to me there appeared to be two camps. There was one camp that says, you know, he ought to get a medal and a ticker tape parade, and another that says he ought to get a firing squad. I think I’m between the two. I mean, again, I signed the same security paperwork that he signed, that Edward Snowden signed, and there are no ifs, ands or buts about releasing classified information and he pled guilty to that and took responsibility for it. But I think as far as, you know, the way the government tried to portray this and the harm – you know, as you said, even the government witnesses at trial said they couldn’t identify one single person that was harmed or died as a result of this information. So, again, I think, you know, you got to keep it in context, and I think the government tried to blow it out of context and the judge did a reasonably decent job of giving it some reasonable perspective.

SCOTT HORTON: Mmmhmm. Well, you know, it’s interesting too that they talk about Manning’s kind of, his leak as being indiscriminate, and after all “it was so many documents and pages that he couldn’t possibly have read it all before he leaked it” kind of thing, but that to me sort of seemed like it was beside the point and we found out from his guilty plea statement that he actually did have access to Top Secret information, including sources and methods and named names and information that very well could have gotten Americans killed, and he didn’t leak, he very specifically chose not to leak that stuff but instead only leaked the Secret and Confidential level stuff that would tell the truth about what’s happening here but not at such a classified level where he’s getting anybody hurt. And that was a very deliberate decision that he made to, you know, go through some of the documents anyway and see what it was that he was doing and definitely not leak the kind of stuff that could get people hurt.

MORRIS DAVIS: Right. Yeah, and again at trial, even the government witnesses, you know, kind of the star witness was, you know, Lamo the guy that he was having the online chats with that turned him in. I mean, even he said that there was never any discussion about, you know, Manning being mad at America or wanting to help Al Qaeda. You know, all the discussion was that he was concerned about the conduct that he was seeing taking place in the war, and so, you know, again, I don’t there was any evidence presented that he had any, you know, evil motive, that if anything he was naïve in what he did but he was motivated by I think what most people would call, you know, altruistic reasons.

SCOTT HORTON: Well, you know, he says in the chat logs, and I think Lamo confirmed this on the stand – I don’t know if the government ever did confirm this part of the story or if this ever came up as evidence, but he says in the chat logs, Colonel, that he was being made to participate in illegal activity in helping the Iraqi police arrest people for just free speech.

MORRIS DAVIS: Yes.

SCOTT HORTON: And people who were presumably to be taken off to be tortured for crossing the Bader Brigade, you know?

MORRIS DAVIS: Right. No, I agree. I mean, I’m not aware of any evidence that suggests anything other than him being motivated by his concern about the conduct he was seeing taking place, you know, in Iraq. You know, certainly not the way the government tried to portray him as being, you know, again, aiding the enemy is as serious a military charge. I mean it’s not the same as treason as defined in the Constitution, but it’s pretty close to it, so, you know, I would have preferred the judge had granted – well, I would have preferred the government never charged him with that to begin with, I would have wished she would have granted the defense motion to dismiss the charge, but at the end of the day I was pleased that she found him not guilty of the charge. But it certainly I think still leaves that unresolved question hanging over the heads of journalists and other potential leakers on whether they, you know, what the extent of their exposure is if they choose to be the next Bradley Manning.

SCOTT HORTON: Mmmhmm. Well, and now that’s the thing is, it’s an adversarial kind of a process, so if they overcharge you and go after you and try to say, try to deny that you’re a whistleblower at all and that you only meant harm, then I guess it’s the defense’s job to win on that point, and in this case they were able to, but it is kind of a problem, right? That the government has staked out this position, as they explained to the judge, that “Even if he leaked to the New York Times, we’re still considering that that he was giving to Osama by leaking it to the Times.”

MORRIS DAVIS: Right.

SCOTT HORTON: And that’s a real problem if the government denies there’s such a thing as a whistleblower and that anybody tells the truth about anything that’s not a leak directly, you know, by them to David Sanger, is somehow – or maybe even a leak by themselves to (laughs) David Sanger, I guess, is handing information now over to Zawahiri.

MORRIS DAVIS: Yeah, I mean, if you look at the extraordinary steps that our government has taken in the Snowden case, you know, where we get our, you know, our lapdog allies in Europe to force a head of state to land his airplane, when they made Evo Morales land because they thought Snowden was on the plane, or if you look at what England did over the weekend where they detained Glenn Greenwald’s partner for nine hours at the auspices of their terrorism statute, or making The Guardian destroy the hard drives of their computers, so, you know, we talk about the war on terrorism, and it seems more like a war on information, that this fear of the public being informed and knowing what their government is doing seems to be a bigger fear for the government than terrorism itself.

SCOTT HORTON: Mmmhmm. Okay, and now one last question here real quick, I meant to ask you before but I spaced out. What is this about military law where the judge can help the prosecutors rewrite the charges at the end of their case so that they’ll fit?

MORRIS DAVIS: Yeah. And it’s not – I mean, military law is its own unique creature, but there is, you know – I can’t say it’s common, it doesn’t happen in every case, but it’s not uncommon for a judge to – it’s findings by exceptions and substitution, which is basically rewriting the charge to conform to the evidence. I mean I know it looks odd, but, you know, I can tell you in my 25 years of experience, it’s not, you know, uncommon for that to happen.

SCOTT HORTON: Well, that’s just mean!

MORRIS DAVIS: (laughs)

SCOTT HORTON: I would think that that’s excluded! You couldn’t do that in a regular court, or maybe you could nowadays, but –

MORRIS DAVIS: Yeah.

SCOTT HORTON: – that sounds like the kind of thing that would be banned by Article I, Section 9.

MORRIS DAVIS: No. Under military law, it’s permissible to have findings by exceptions and substitution. I mean, it can’t be like a totally separate – it’s got to be part of the same charge, but –

SCOTT HORTON: Kind of a refinement.

MORRIS DAVIS: Yeah, but you can conform the charge to the evidence to make it, you know, if it’s necessary, which happened here. So I know it looks odd, but it’s not uncommon.

SCOTT HORTON: Amazing. Well, listen, thank you very much for your time today, Colonel. I appreciate it.

MORRIS DAVIS: Yeah, happy to do it. Take care.

SCOTT HORTON: All right, everybody. That’s Col. Morris Davis. You can follow him on Twitter @ColMorrisDavis. We’ll be right back after this.

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