Col. Morris Davis stands in front of the White House.

Air Force Col. Morris Davis served as chief prosecutor of the military commissions at Guantanamo Bay from 2005 to 2007. Since stepping down, he has said the commissions represent a paradox of justice. (Medill News Service photo)

The joke at Gitmo used to be in order to win you have to lose.

Take it from Air Force Col. Morris Davis, former chief prosecutor of the military commissions at Guantanamo Bay. Davis presided over the prosecution of detainees from 2005 to 2007. He brought charges against three prisoners and saw the conviction of one.

Since he stepped down in 2007 amid controversy, five more have been convicted as war criminals. Davis has said he felt under pressure from the Bush administration to move fast so it could show the process at Gitmo was working. But of the now six total convictions, two are already free men—a fact which illustrates what Davis calls the paradox of justice at Guantanamo.

For the first time since 2008, military commissions have begun again, after Congress put up a fight in this year’s Defense Authorization Act and blocked funding to bring detainees to trial in federal court.

President Barack Obama signed the bill reluctantly, saying that despite his strong objection to the provisions, the importance of authorizing military funding overwhelmed it. He said the administration would work to seek the repeal of the restrictions.

Attorney General Eric Holder was more direct. The administration has long advocated the use of federal trials in U.S. civilian courts to try detainees, he said.

Noor Uthman Muhammed, the accused instructor at the al Qaeda-linked Khalden training camp in Afghanistan, appeared before the first of the new commissions Feb. 15, a day anticipated to comprise a pre-trial jurisdictional hearing—day one of the tribunal.

The same day Noor pleaded guilty. After eight years of waiting, representatives from Human Rights Watch and the National Institute for Military Justice said he had no other options.

Two years after Obama pledged to shut down Guantanamo Bay, a reported 172 detainees still haven’t left. The number used to be 173, but one detainee, Awal Gul, died at the beginning of February–the first to leave the island since the new restrictions went into effect in January.

Defense Secretary Robert Gates testified recently in a Senate hearing that prospects for closing the detention facility are “very, very low.”

As the task of bringing alleged terrorists to justice begins, a guilty plea could be the quickest way out of Cuba.

Plea deals are a way out

Noor Courtroom Sketch

The Pentagon released this courtroom sketch of confessed small-arms instructor Noor Uthman Mohammed Feb. 18, the day a jury deliberated his sentence of up to 14 years. (Sketch by Specialist Kelly Gary/U.S. Army)

Noor is the latest in a series of detainees who ended up cutting a deal with the prosecution to plea guilty.

Four of the six convictions have been decided that way: David Hicks, Ibrahim al-Qosi, Omar Khadr and Noor.

In exchange for giving up his right to a military commission and pleading guilty to providing material support for and conspiracy to commit terrorism, Noor got a 14-year sentence. Days later, the Pentagon announced it would suspend all but 34 months under the pre-trial agreement.

Hicks. Al-Qosi. Khadr. Noor. Each of these men pleaded guilty to the charges brought against them, in the face of potential life sentences and the severity politicians have ascribed to military commissions.

Can you blame them, asked Gary Thompson, a lawyer who represents detainees at Guantanamo. Look at the alternative.

“If you’re a detainee and you’re in this indefinite detention group—heck, you’d kind of want a military tribunal,” he said. “I mean, bring it on because now you get to see charges, now even if you’re found guilty, you get a sentence.”

“The news that you’re being charged in a military tribunal could mean the end is near,” Thompson said. “You’re going home.”

Precedent proves that’s the case more often than not. Hicks, the Australian citizen who allegedly trained with al Qaeda, was transferred back to Australia in 2007 after his conviction and finished his sentence there by the end of the year. Last fall Random House Australia published his memoir, Guantanamo: My Journey.

One high-profile defendant who pleaded not guilty was Salim Hamdan, Osama bin Laden’s former driver. Hamdan fought charges for months, eventually leading to a federal court in Washington D.C. to rule the commissions unlawful in 2004.

Following an appeals court reversal, the Supreme Court ruled 5-3 in 2006 that the president had exceeded his authority in establishing the military commissions. Congress proceeded to pass new procedures in the Military Commissions Act of 2006, and in August 2008 Hamdan was found guilty of providing material support for terrorism.

Fast-forward five months and Hamdan, a convicted war criminal, was back in Yemen and a free man. He received credit for time served on the rest of his five and a half-year sentence, which at the time some said involved discussion about a plea deal.

In fact, thus far just one of the six prisoners convicted in the military commissions has gotten a life sentence. Ali Hamza al-Bahlul was sentenced to life imprisonment without parole in 2008.

Bahlul notably boycotted his trial, and therefore no defense was ever mounted before Osama bin Laden’s alleged media adviser was convicted of 35 counts of conspiracy, solicitation to commit murder and providing material support for terrorism.

‘It could be years. It could be the rest of your life’


In this 2006 file photo, the sky turns a brilliant magenta beyond the razor wire as the sun sets over Camp Delta in Guantanamo Bay, Cuba. (U.S. Navy photo by Photographer's Mate 1st Class Brien Aho, Fleet Combat Camera, Atlantic.)

Gary Thompson, the Gitmo attorney, can’t look his client in the face anymore.

Thompson is one of the hundreds of lawyers working pro bono as habeas counsel for detainees at Guantanamo Bay, so it’s his job to petition the government to explain why it continues to hold prisoners indefinitely.

More than three out of five times, the government has had no answer. In roughly 35 of the 50 cases that have gone to trial on habeas petitions, the judge ordered the detainee released, Thompson said.

That’s rarely the end of it though. Thompson’s client was ordered released and now the government has decided to appeal the decision. After it was unable to prove a lawful basis for detention the first time, his release was stayed until the appeal is decided.

It’s a system of endless limbo.

“When we go down there and talk to him, I can’t look him in the face and say, ‘You’re getting out anytime soon,” he said. “It could be years. It could be the rest of your life.’”

Military commissions a political minefield

The military commission system has been shrouded in politics since it was set up by the Bush administration. Obama campaigned on the promise to end the use of tribunals, a promise that became popular in part because of how unpopular Bush’s handling of the situation was.

Bush frequently faced criticism about the grounds on which the majority of detainees were held, and allegations by several prominent humanitarian groups that the infamous enhanced interrogation techniques basically amounted to torture.

However, as it continues to operate, the government has repeatedly issued statements confirming the successfulness of the Guantanamo commission system.

Immediately after the Noor plea bargain was announced, the Miami Herald quoted Navy Capt. John F. Murphy, the Pentagon’s chief war crimes prosecutor, as saying Noor “was part of the apparatus of al Qaeda” and his plea demonstrated “another step in the justice that we are achieving in the commissions.”

Officials answer press questions following the conviction of Noor Uthman Muhammed.

Navy Capt. John Murphy, chief prosecutor for the Office of Military Commissions, briefs reporters after the Feb. 15, 2011, trial of Noor Uthman Muhammed at the detention center at Guantanamo Bay Naval Base, Cuba. (DOD photo by Cheryl Pellerin)

Thompson agreed that detainees were not the only ones standing to benefit from the plea bargains.

“It’s a win-win for everybody, because the government can say, ‘You see, we were right all along,” Thompson said. “This guy is a bad guy. Here he is pleading guilty, admitting that he’s a bad guy.’”

The incentives exist for the administration to try putting what Davis called “a veneer of justice” on Guantanamo.

The White House is already a year late on its self-imposed deadline to close the detention center at Guantanamo. When failure first became clear in late 2009, White House counsel Greg Craig, who had advised the president to set the January due date, resigned under pressure.

As high as winning at Guantanamo is on the administration’s political agenda, it has steered clear of acknowledging its losses in any sense. Obama made no mention of developments in his State of the Union address this year.

‘A solution for a select few’

Much of U.S. policy at Guantanamo Bay right now is about using convictions to convince the rest of the world it’s doing the right thing, said Benjamin Wittes, senior fellow at the conservative Brookings Institution.

To some officials, the “win at all costs” mindset is disturbing. Davis stepped down as chief prosecutor partly because he was concerned about the use of evidence obtained by torture, a policy endorsed by then Defense Department General Counsel William J. Haynes who Davis was supposed to report to.

Davis recalled that when he interviewed to be chief prosecutor, the interviewer told him the commissions were going to be “the Nuremberg of our time.” In response, he pointed out that there had been acquittals at Nuremberg—a sign that proved the process was fair, he said.

He said the interviewer looked at him and said, “Acquittals? We can’t have acquittals. We’ve been holding these guys for years, how are we going to explain that?”

The government needs to come up with an explanation soon, Thompson said, because at the end of the day not everyone is slated for trial.

“They’re going to pluck out two or three or four cases to bring to a military trial,” he said. “They’re probably not ready to try Khalid Sheikh Mohammed, but they’ll pick a couple high-value guys where they’re pretty sure they’ve got strong evidence and a well organized case. They want a victory.”

The rest of the detainees, who the U.S. either cannot get rid of for diplomatic reasons or refuses to give up, will stay at Guantanamo, including Thompson’s client—at least until the appeal is decided on his habeas petition.

“This is not a solution for the problem at Guantanamo,” Wittes said. “It’s a solution for a select few.”

Wittes has written extensively on the situation at Guantanamo, and is a proponent of simply proceeding with military detention without trial. Whether it was intended or not, he said that might as well be where the administration stands today.

“We’re not closing Guantanamo here,” Wittes said. “We’re institutionalizing a long-term detention scheme.”