08/21/13 – Col. Morris Davis – The Scott Horton Show

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All right, our guest today is Colonel 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, Colonel Davis?
Welcome to the show.
Hey, thank you.
Yep, you're correct.
All right, so can you tell us real quick, and obviously I want to ask 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?
Yeah, it was actually Jim Haynes, who's the DOD general counsel, who's the author of- Who's Michael Haynes?
I'm sorry.
Yes, William J. Haynes, who 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 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 quit.
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 or 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, et cetera, and you're saying I believe that he could be facing as little as 10 actual years in prison, is that correct?
It's not an exact number, but he's likely looking at something in the eight or nine more years of confinement is when I would expect him to be released, he would be probably 33 or 34 years old when he gets out of confinement, which I think is 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 who didn't expect that.
Well it seems like they could have spared the trial and just convicted him on what he'd already pleaded guilty to and sentenced him to that, right?
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 as you mentioned, he stepped up to the plate and admitted 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 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.
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.
Yeah, and it was unnecessary, I think it was a case of overcharging, it often happens where the government, I think they viewed this case at the outset, if you recall, 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 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, I think, at least in my estimation, is a pretty reasonable outcome.
Alright, now, they certainly failed, as you say, to win the 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 there were not many reporters covering the day-to-day in the newspaper, that kind of thing, so we do our best here interviewing Nathan Fuller and Alex O'Brien and them, but it seemed from here as though every point that they were trying to win, that they failed, on the spreadsheet and on the Gharani video, etc., etc., etc., etc.
Well, obviously the judge found them guilty of some additional charges under the Espionage Act, and I think that's fertile ground for appeal.
I mean, I was an expert witness for Private 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, you know, 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, you know, 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.
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 Gharani 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 anything more to that case?
And did any of it stand up at all?
Well, it doesn't appear to.
Now, the judge, you know, didn't have to articulate entirely, you know, what the basis for her findings were.
So it's difficult to say what she, you know, found the government proved beyond a reasonable doubt and what they didn't.
Although, you know, 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 private 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 it to be the next private manning.
Okay, now it's the other Scott Horton that's the lawyer on international law 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 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 it 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, whereas the 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.
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.
Right.
Well, it appears to me that, and again, my exposure to the judge was the four or five hours that I was on the witness stand.
It appeared to me that she was pretty independent in making her decision.
It appeared to me she was equally hard on both sides.
She found him not guilty of the 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 thirties.
So I just don't see where she knuckled under to any, any government pressure.
So I, 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, uh, on the command influence claim.
Okay.
Well now, so what about the abuse and the speedy trial?
Because again, I don't know the particulars of, 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 is, 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 them that long, we'll go ahead and just let them go.
Right.
Yeah.
Well, certainly again, that's, you know, I think, you know, fertile ground for appeal to challenge it as they did at the trial level and lost, um, you know, the judge and her findings excluded, you know, significant periods of time from the speedy trial calculation.
Um, but again, I know today on Twitter, there are a number of people saying that, you know, he was held longer than anyone in the history of the military before he, uh, faced trial, which is wrong.
I mean, Major Nadal Hassan down 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 private Manning.
But again, you know, there are periods of time that are legitimately excluded from the, from the, from the calculation for the speedy trial clock.
And, you know, the judge's findings were that these periods were properly excluded, that, you know, I think again on appeal, I would certainly fight tooth and nail if I was the defense to, uh, convince the appellate court that the judge erred and potentially, I mean, the result would be to dismiss the charges.
So I think for private Manning, the good news is as things stand right now is the worst case scenario.
I mean, so worst case is by the time he's in his early to mid thirties, he's a free man.
He's a free man.
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 each of the next four rounds and, and hopefully come out better than he is now.
And now I guess the judge did take the abuse at Quantico into account and knock 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?
Yeah.
You're right.
I think she gave him a three for one credit for the period that was, she found to be a 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, uh, you know, the pretrial abuse as well.
Yeah.
All right.
And now can you tell us more about, uh, your part of the case about the, uh, Guantanamo leak and what you had to say for the defense there?
Yeah.
Well, what Mr. Coombs had asked me to do was to review, you know, some of the, some of the 700,000 documents that private 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 their detainee assessment brace or what we call 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, uh, 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 is 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 then I took a highlighter and highlighted in the classified document and then an open source materials where I could find the same information.
And 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, my expert opinion was that there was no benefit to Al Qaeda or harm to the U S by releasing these classified documents when that same information or perhaps even more accurate information is publicly available on the internet.
Right.
Or just down to your local Barnes and Noble, the Guantanamo files by the great Andy Worthington is for sale.
Well, exactly.
You know, I can't, 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, it was an embarrassment to the United States, but it was no significant harm.
And I think, you know, the government, again, I think just overreached on this and tried to overcharge and make, make more of it than there, there really was.
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 interests that was trying to stay against the insistence and the will of the Iraqi people 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 airstrike 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 hitch 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, you know, they can address that level of damage and then they're, 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, but, but they do have the loss of Iraq.
They have the loss of the Mubarak dictatorship, well, at least for two and a half years in Egypt that cost America bloody too, in a way, but they can't claim that we lost a dictatorship for two and a half 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?
Yeah, I know.
I mean, you know, I think there's certainly, you know, both with Manning and with Edward Snowden, there are going to be years and years and years of debate over how history will view them.
And I think there, I can tell you, like with Manning, to me, there appeared to be two camps.
There's one camp that says, you know, you got to get a medal in a ticker tape parade and another that says you got to get a firing squad.
I think I'm between the two.
I mean, I, 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, as 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.
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 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.
Right, yeah, again, at trial, even the government witnesses, you know, kind of the star of witnesses was 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 Manning being mad at America or wanting to help Al Qaeda, that all the discussion was that he was concerned about the conduct that he was seeing taking place in the war.
And so, again, I don't think there was any evidence presented that he had any evil motive, that if anything, he was naive in what he did, but he was motivated by, I think what most people would call altruistic reasons.
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.
People who were presumably to be taken off to be tortured for crossing the Bata Brigade, you know?
All 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 betray him as being, you know, again, aiding the enemy is, you know, 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.
Well, no, that's the thing is it's 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 it to Osama by leaking it to the Times.
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 David Sanger, I guess, is handing information now over to Zawahiri.
Yeah.
I mean, if you look at the extraordinary steps that our government has taken in the Snowden case, you know, when we get 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 we talk about the war on terrorism, but it seems more like a war on information, that this fear of the public being informed and knowing what their government doing seems to be a bigger fear for the government than terrorism itself.
Okay.
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?
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 I can tell you my 25 years of experience, it's not uncommon for that to happen.
Well that's just mean.
I would think that that's excluded.
You couldn't do that in a regular court, or maybe you could nowadays, but that sounds like the kind of thing that would be banned by article one, section nine.
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.
Kind of a refinement.
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.
All right.
Well, listen, thank you very much for your time today, Colonel.
I appreciate it.
Yeah.
Happy to do it.
Take care.
All right, everybody.
That's Colonel Morris Davis.
You can follow him on Twitter at ColonelMorrisDavis.
We'll be right back after this.
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