Not Just An Abstract Concept

The Guantánamo chief prosecutor from 2005 to 2007, Colonel Morris Davis, writes:

“I will be back soon,” I said, as we stood up and shook hands. Then I turned and walked a few steps to the gate, and waited for the guard to unlock it so I could leave.

Those were the last words I said to Mohamedou Ould Slahi after I met him in the tiny compound he shared with Tariq al-Sawah in the detention camp at Guantánamo Bay.

That was seven and a half years ago. I have never been inside the camp again. Slahi has never been out.

I didn’t know, that afternoon in the summer of 2007, that in a few weeks I would send an email to the US deputy secretary of defence, Gordon England, saying I could no longer in good conscience serve as chief prosecutor for the Guantánamo military commissions.

I reached that decision after receiving a written order placing Brigadier-General Tom Hartmann over me and the Pentagon general counsel, Jim Haynes, over Hartmann.

Hartmann had chastised me for refusing to use evidence obtained by “enhanced” interrogation techniques, saying: “President Bush said we don’t torture, so who are you to say we do?”

Haynes authored the “torture memo” that the secretary of defence, Donald Rumsfeld, signed in April 2003 approving interrogation techniques that were not authorised by military regulations – the memo where Rumsfeld scribbled in the margin: “I stand for 8-10 hours a day. Why is standing [for detainees during interrogations] limited to 4 hours?”

Rather than face a Hobson’s choice when they directed me to go into court with torture-derived evidence, I chose to quit before they had the chance.

Slahi and al-Sawah had been recommended to me as potential cooperating witnesses.

Before I met them, I asked one of my prosecutors to review their files and check with other agencies to be sure nothing had been overlooked.

We attended a meeting where those who had spent years investigating Slahi briefed their findings.

The end result was a consensus that, like Forrest Gump, Slahi popped up around significant events by coincidence, not design.

Several times I met Slahi and al-Sawah to try to secure their cooperation. They had a garden inside their compound where they grew herbs and vegetables.

I don’t like hot tea even in the dead of winter, but whenever I visited, Slahi insisted on brewing tea using mint fresh from the garden.

I recall sitting outside his hut in the Guantánamo heat, soaked in sweat, drinking hot tea and spitting mint leaf remnants on the ground as we talked.

I thought Slahi would be transferred out when President Obama took office.

It seemed likely in 2010 when US district court judge James Robertson ordered him released after finding that incriminating statements he made were obtained by coercion, and that other evidence only proved there was smoke but no fire.

But instead of transferring Slahi, the Obama administration appealed and the US court of appeals proved to be an impenetrable barrier, just as it has in every case where a detainee won a habeas challenge at the district court level.

It has been four and a half years since Slahi’s release was ordered and he is still within sight of where he and I shook hands for the last time in 2007.

We were told that all the men at Guantánamo were the “worst of the worst”.

In my job as chief prosecutor, where my focus was on reviewing cases for potential criminal prosecution, it was obvious the label was mostly hype.

While the label fits a few – like Khalid Sheikh Mohammed – fewer than 4% of the 779 men ever sent there have or will face charges.

Six military commissions have been completed since they were first authorised by George Bush in November 2001.

Five of the six men convicted and sentenced as war criminals – Hicks, Hamdan, Khadr, al-Qosi and Noor Uthman Mohammed – are now back in their home countries. (Hamdan and Mohammed have since been cleared.)

What does it say about American justice when a person fares better being a convicted war criminal than someone we could not even charge?

Men were sent to Guantánamo because some in the Bush administration thought it was outside the reach of the law and we could exploit people there with impunity.

Time proved them wrong.

We have spent more than $5bn on detention operations at Guantánamo since it opened 13 years ago. There are 122 men there now at a cost of about $3m a year each.

Almost half are approved for transfer, a status in which many have languished for years as the US tries to beg and bribe other countries to take them.

And now some members of Congress want to make it more difficult for Obama to close it before he leaves office in January 2017.

I hope many will read Slahi’s book, extracts of which are published in Saturday’s Guardian, and come to appreciate that Guantánamo is not just an abstract concept.

It is a real place where real people have spent years wondering if anyone will ever come back for them.

America has paid a heavy price for a bad decision made 13 years ago, but it pales in comparison to the toll on those who remain trapped in the black hole of Guantánamo.