#NC11: Fact-Checking Cawthorn Attack Video

Sep 23, 2020

In the Western North Carolina congressional campaign already notable for its bare-knuckled ferocity, GOP candidate Madison Cawthorn’s latest attack video against Democrat Morris (Moe) Davis stands out: TERRORIST DEFENDER, the video proclaims in bold text and shock-inducing graphics.

“Moe Davis’ record shows he’s no patriot,” reads the text. 

His actions against America make him unfit to serve,” it continues.

Then this: “Moe Davis has sided with foreign enemies over our own country numerous times."

Cawthorn’s accusations brand Davis a traitor, the worst accusation that could be leveled at any veteran military officer. Davis, 62, is a retired Air Force colonel and decorated military lawyer whose 25 years of service culminated as the chief prosecutor of alleged al-Qaeda combatants imprisoned at the U.S. Navy Base at Guantanamo, Cuba.

The 25-year-old Republican candidate making the accusation, is a self-described investor and college dropout who styles himself as the potential conservative counterpoint to Democratic Congresswoman Alexandria Ocasio-Cortez, a favorite of progressives and a target of the right.  He has been warmly embraced by President Trump and former Congressman Mark Meadows, and was given a prime speaking slot at the Republican National Convention.

Cawthorn’s attack is directed at Davis’ strength as a high-profile and outspoken military veteran and, with ample backing from conservative political action committee funding, is likely to be a featured piece in the brutal campaign’s final weeks. 

But the attack has a fundamental flaw: it runs contrary to the facts.

The AVL Watchdog’s review of the Cawthorn video’s broadside allegation that Davis defended terrorists is false legally and literally.  On other details the video distorts the reality of Davis’ actions with out-of-context claims, emotional appeals unrelated to Davis, and unproven or rebutted allegations against the captives whom Davis purportedly aided.

Indeed, Davis’ positions in the Guantanamo cases -- however controversial they were at the time –were. Subsequently upheld within the military justice system, the federal appellate courts, and in numerous international tribunals. 

This review included new interviews with key participants in the military trials at Guantanamo; a detailed reading of legal testimony and rulings; a review of evidence produced by government investigations into the Guantanamo captives covering several years before and after Davis’ service, and scores of media reports from national and international journalists.

“Moe Davis was a whistleblower,” said Navy Captain Brian Mizner, who in 2005 defended one of the captives whom Davis was prosecuting.  “He was standing up for a judicial system that was plagued with flaws and was making sure that the deck wasn’t stacked.  And he paid a price for it.”

Davis brought war crimes charges against Guantanamo captives but refused to use confessions coerced after alleged torture.

Davis quit his post as chief prosecutor in October 2007 because he wouldn’t accept direction from a higher-ranking officer who ordered that he and other military prosecutors use information obtained from captives who had been subjected to such “enhanced interrogation techniques” as water-boarding, which critics call torture.  As a result, he received a scathing reprimand:

“You quit your position when you were needed because you did not want to be supervised by a superior officer with whom you had a difference of opinion,” wrote Colonel Kelly Wheaton, a senior Pentagon official at the time.  “I believe that this conduct was putting self above service.”

But the critical report, which is featured in the video, was undercut when the superior officer whose directive Davis challenged was later sanctioned by a military judge for interfering in three of the prosecutions – the same charge of “unlawful command influence” that Davis had criticized. 

And despite that reprimand, upon his retirement Davis was awarded the prestigious Legion of Merit by the commanding officer of the Air Force Judge Advocate General’s Corps for “extraordinarily meritorious service.”

The Cawthorn attack takes particular aim at Davis’ role in the prosecution of three of the captives whom the video labels as terrorists:  Omar Khadr, Salim Ahmed Hamdan and Mohamedou Ould Slahi.  The attack implies that Davis played a decisive role in assisting the three in ultimately gaining release from Guantanamo and nullification of the charges against them. 

The facts show:

  • None of the three ever faced trial on the charge of having committed terrorism, nor did prosecutors show any evidence that any of them engaged in, or supported, an act of terrorism.  One, Omar Khadr, was a combatant in a firefight with U.S. troops, but a U.S. appellate court ruled that, under the laws of war, combat was not terrorism.  None of the three was shown to have had prior knowledge of, or connection to, the 9/11 attacks despite efforts by the CIA, the FBI and military investigators to find such evidence. 
  • All three were subjected to harsh interrogations.  These included subjecting captives to sleep deprivation over days and weeks; extremes of heat and cold; beatings and physical abuse; death threats and execution simulations; sexual humiliation; lengthy isolation and, in one case, water-boarding.  All three “confessed” to alleged war crimes during such interrogations, which led to their imprisonment at Guantanamo.
  • These coerced confessions were subsequently thrown out on review as being inadmissible in trials. Each of the three later said that they admitted committing the alleged war crimes to stop the mistreatment.
  • Davis had vigorously prosecuted two of the captives – Hamdan and Khadr –and publicly stated in graphic terms his belief that they were guilty of the crime of “providing material support” to al-Qaeda.  But the U.S. Circuit Court of Appeals, led by then-Judge Brett Kavanaugh, later rejected that argument in the Hamdan case.  Kavanaugh, now a Supreme Court justice appointed by President Trump, wrote: “The international law of war did not proscribe material support for terrorism as a war crime.”
  • Davis never defended any of the three captives.

    

As the attack video portrays it, Davis “sided with foreign enemies” by objecting to political interference in the military-tribunal process and by refusing to use torture-extracted confessions in his prosecutions.  Davis counters that he took the position that the conviction of an alleged al-Qaeda captive by a military tribunal would only be seen as legitimate if observers – and history -- determined that the convictions came without political interference or mistreatment of the accused.

“There are extremely bad people at [Guantanamo],” Davis told a radio interviewer after his retirement. “But they need to get justice in a proceeding that is consistent with our values.”

A defense department lawyer determined in 2003 that the practice of water-boarding a prisoner to coerce information wasn’t torture as long as it was done outside the United States – an opinion contrary to all international norms but accepted by the Bush administration.  Davis refused to allow coerced testimony, arguing that it had been proven to be unreliable because captives would make up stories to try to stop the mistreatment.

When his superior, Brigadier General Thomas Hartmann, told Davis he must abide by the Bush administration’s waterboarding-isn’t-torture policy, Davis resigned. (The policy was attacked by Republican U.S. Senators John McCain and Lindsey Graham and subsequently overturned by President Obama in 2009).

As the Cawthorn attack asserts, Davis’ objections to the process were later incorporated into the arguments used by the military lawyers defending the three captives and other Guantanamo prisoners.  And Davis personally testified to those objections at a hearing as a defense witness for one of the captives, Salim Ahmed Hamdan.  But he also testified that he believed Hamdan was guilty of “providing material support” to al-Qaeda, the charge later nullified by the Kavanaugh decision. 

Cawthorn’s attack also omits mention of Davis’ statements at the time that his objections were not based on the likely guilt or innocence of the captives, but rather on what he believed was “unlawful command influence” in the prosecution.

This is a critical omission.  “Unlawful command influence” is regarded as the Achilles heel of military justice.  It is the illegal practice where a superior officer orders a lower-ranking military prosecutor to reach a particular outcome by any means.  In these cases, the desired outcome was conviction of all the captives, an outcome explicitly expressed to Davis by senior Pentagon officials, according to testimony in the Hamdan trial.

Davis labels the attack as “swift-boating,” a term that has come to mean a pejorative, unfair and inaccurate attack on another’s character.  It was coined in 2004 to describe right-wing attacks on then-Democratic presidential-candidate John Kerry for his Vietnam War service on the small, heavily armed craft of that name.   Although Kerry had been recognized for valor, supporters of his opponent, President Bush, financed TV ads implying that his heroism was exaggerated.  A subsequent review by the Navy upheld Kerry’s awards -- but well after he lost the election.

(Editor’s note: The stories of the three former Guantanamo prisoners and their interactions with Davis during his stint as chief military prosecutor illustrate the complexities of finding a just resolution to their cases.  About 780 alleged al-Qaeda fighters, terrorists or supporters have been imprisoned at the Navy base on Cuba’s eastern coast, which was chosen by the Bush administration to skirt U.S. compliance with the Geneva Accords. Today, only 41 remain, the so-called “forever prisoners.”  Under President Trump there is no judicial or diplomatic process in place to enable them to be tried and punished for alleged crimes or released.  What follows is a detailed look at each of the three cases featured in Cawthorn’s attack).

Omar Khadr: A ‘child soldier’ captured, tortured and ultimately awarded millions in damages by the Canadian government

The Cawthorn attack prominently features the case of Omar Khadr, who was born in Toronto, Canada and raised between there and the Waziristan region of Pakistan.  His father became an associate of Osama bin Laden specializing in al-Qaeda’s financial affairs.  A few months after the 9/11 attacks, Khadr’s father sent him to join an al-Qaeda faction where, at age 14, he received training in making bombs to be planted along roadsides likely to be traveled by U.S. troops. 

But in July, 2002, American forces discovered Khadr and five other al-Qaeda fighters hiding in a walled farm compound.  A Special Forces team joined by about 100 infantry and attack helicopters assaulted with mortar, cannon and rocket fire. Two Air Force A-10s dropped several 500-pound bombs.  The Special Forces team, including medic Christopher Speer wearing Afghan clothing, entered the compound, then strewn with dead animals and the bodies of al-Qaeda fighters. 

After undergoing harsh treatment when 15, Omar Khadr pled guilty to tossing a grenade killing a US medic during battle, a war crime. But evidence remains in dispute.

Khadr and one other fighter had survived.  As the team worked its way through the debris, a grenade flew toward them and detonated near Speer, gravely wounding him and ultimately causing his death.  According to the after-battle report, the team leader immediately killed one of the surviving al-Qaeda fighters and then shot Khadr twice in the back and head. Despite his wounds and with treatment by another medic, Khadr lived.

Details of the fire fight were widely carried in news accounts and the on-scene battle reports became part of the Khadr trial record.  One detail remains unclear to this day: whether he or the other al-Qaeda fighter tossed the grenade that killed Speer. 

Although Khadr, then 15, was a “child soldier” under international law, his military captors treated him as an adult.  At Guantanamo, after months of harsh interrogations, he was charged by Davis with murdering Speer and set for trial before a military commission.  When Khadr’s defense lawyer objected to prosecuting Khadr as an adult, Davis ridiculed this claim and told reporters that “they weren’t making s’mores and learning how to tie knots” at the al-Qaeda camp where he learned bomb making. 

But complicating the prosecution, and ultimately thwarting a trial on war crimes charges, were questions about the constitutionality of the military commissions and Khadr’s harsh treatment during numerous interrogations by U.S. and Canadian authorities.  Toronto Post reporter Michelle Shepherd, whose subsequent book and documentary film detailed Khadr’s case over several years, said in an interview for this article that the interrogations started just hours after he gained consciousness after the fire fight as he lay handcuffed on a stretcher, his wounds still open and denied pain killers.

At Guantanamo, prior to one interrogation, he underwent such “enhanced interrogation techniques” as sleep deprivation for three weeks, where he was moved to a different cell every three hours; was hog tied in “stress positions,” and was humiliated with what Shepherd called the “human mop” procedure.  This occurred when, under intense questioning, Khadr urinated on himself and the floor.  He was dragged mop like, back-and-forth through his urine, by the questioners. 

Although Khadr said repeatedly that he could remember nothing about the fire fight and was likely concussed by the bombing, he eventually confessed to tossing the grenade that killed Speer. News stories of Khadr’s treatment became a divisive public issue in Canada and drew questions from a United Nations agency overseeing treatment of “child soldiers.” 

Most troublesome for Davis as prosecutor was whether he could win a terrorism-connected murder conviction on an action that took place in the heat of combat and that depended solely on Khadr’s confession obtained after harsh interrogation. But in 2006, the US Supreme Court blocked the prosecution, ruling that the military trial process was unconstitutional and needed corrective legislation.

Davis played a key role in advising two U.S. senators in writing that legislation – Republicans John McCain and Lindsey Graham.  But before Khadr’s prosecution could resume, Davis had quit because of his objections to orders that he use torture-induced confessions in the trial.

In fact, the charges Davis sought to bring against Khadr – murder in violation of the laws of war – never went to trial.  In 2012, Khadr agreed to plead guilty to throwing the fatal grenade killing Speer in exchange for being returned to Canada to serve his sentence.  Meanwhile the Canadian Supreme Court ruled that its government had violated Canadian law by abetting Khadr’s harsh treatment.

By then, Davis had gone public with his objections to the “unlawful command influence” he experienced as prosecutor, including in a New York Times’ opinion column. Khadr’s defense team cited these objections in negotiating the deal and Khadr also used them in a suit against the Canadian government for violating his rights as a citizen.  The government settled the suit by awarding Khadr $10 million.

“But the plea deal had nothing to do with [Davis],” said Shepherd, the Canadian journalist and author in an interview for this article.

The Canadian government paid Khadr $10 million for its failure to protect him against physical mistreatment at Guantanamo

Nevertheless, the Cawthorn attack links Davis to the settlement.  It further connects that settlement to a civil suit filed against Khadr’s late father’s estate by Speer’s widow and a soldier named Layne Morris, who was wounded by the grenade blast.

Their suit seeking $102 million, claims that Achmed Khadr was liable for their losses for sending his son to support al-Qaeda.  Although the suit has been upheld by a Utah civil court, it hasn’t succeeded in getting money.

Khadr was released from prison in 2015, 13 years after being captured.  But relevant to the Cawthorn video, this fact remains: He never faced trial on charges of terrorism.

Salim Ahmed Hamdan: The terrorist’s chauffer whose case was aided by now-Supreme Court Justice Brett Kavanaugh

Hamdan, who admitted to being Osama bin Laden’s driver, was among the first of three captives at Guantanamo to face prosecution by Davis and trial before a Military Commission.  As a result, he figured in key legal decisions impacting those who came behind.  His original charge of “conspiracy and providing material support for terrorism” was vacated in 2006 by the U.S. Supreme Court, which ruled that the military commission process was unconstitutional and violated both the Code of Military Justice and such international laws as the Geneva Conventions regarding the treatment of enemy combatants. 

When the military commissions were revised by Congress to meet the high court’s objections, Davis re-charged Hamdan with conspiracy and “providing material support” to al-Qaeda. 

But Hamdan wasn’t brought to trial until mid-2008, several months after Davis had resigned his position to protest political interference in the prosecution related to the use of torture on Hamdan and other captives.  A military jury acquitted Hamdan of the conspiracy charge and, while finding him guilty of the other, sentenced him to the time he’d already served in captivity. He was returned to his native Yemen and soon released.

An appeal of his case, however, went forward.  In October 2012, the U.S. Court of Appeals in Washington, DC, overturned that single conviction, acquitting Hamdan of all charges.  In the opinion written by then-Court of Appeals Judge Brett Kavanaugh, now an associate justice of the Supreme Court appointed by President Trump, the court pointed out that there was no such crime on the books at the time Hamdan was charged, thus “Hamdan’s conviction for material support for terrorism cannot stand.”

Davis’ involvement in the case didn’t end with his resignation as Guantanamo’s chief prosecutor, however.  He was called by Hamdan’s defense lawyer, then Lieutenant Commander Brian Mizer, to testify in a hearing about Hamdan’s treatment while a captive.  Under questioning from Mizer, Davis recounted receiving directives from two Pentagon superiors to build cases with information obtained from captives after being water-boarded, an interrogation technique authorized by the Pentagon but regarded by critics – and by Davis – as torture. 

When Davis was put under the command of a Pentagon official who “said water-boarding is ‘A-OK’,” according to the transcript, Davis testified: “I was not going to take orders from [the guy] and I quit.  That was the tipping point.”

The Cawthorn video describes that action as a “difference of opinion” with a superior officer and a demonstration of “putting self over service.”

But Mizner, now a Navy captain, said Davis’ complaints about being pressured by superiors – a violation of military justice called “unlawful command influence” -- in the Hamdan case were “entirely vindicated by a military judge. 

“Not only did the judge say that Davis had done nothing wrong, but that he had done everything right,” Mizner said in an interview for this article.    

Ironically, Davis also testified that he believed Hamdan was guilty of the charges he would have brought.  But, Davis said in an interview, “he deserved a fair trial.”

Mohamedou Ould Slahi: Caught in a web of suspicion, he was tortured, imprisoned at Guantanamo for 14 years -- then released with no charges

Among the captives at Guantanamo, Slahi – a well-educated, multi-lingual engineer – occupied an unusual position and was treated in an unusual way.  He was held for almost 14 years without formal charges. But in that period he faced – and was subsequently cleared of -- allegations that he had conspired to bomb the Los Angeles Airport on New Year’s Day 2000, had recruited 9/11 hijackers for al-Qaeda, and set up an al-Qaeda money-laundering operation.

Indeed, although Slahi was never prosecuted for or convicted of any criminal activity, the Cawthorn video attacks Davis for writing letters to support Slahi’s appeals and for posting a letter on his campaign website from Slahi wishing Davis “Good luck, brother” in the race.   In one video clip, Slahi’s defense lawyer, Nancy Hollander, calls Davis “an unexpected ally.”

In preparing Slahi’s prosecution, Davis concluded that intelligence agents could find “absolutely no evidence that Mr. Slahi ever engaged in any acts of hostility towards the United States.”  But that conclusion came years after the CIA, the FBI and military investigators chased suspicions that Slahi was a key al-Qaeda operative.  Slahi was tortured under CIA auspices at a “black site” in Jordan before being taken to Guantanamo, where he was subjected to additional “enhanced interrogation techniques” in an effort to extract a confession.

Slahi’s unusual background fed those suspicions.  A native of the west African nation of Mauritania, Slahi earned a scholarship to an engineering university in Germany.  But in 1990 he interrupted his studies to go to Afghanistan and join mujahidin in fighting the Soviet-backed government there.  The United States was also engaged in that effort, along with Osama bin Laden’s then fledgling al-Qaeda organization. 

Slahi returned to Germany in 1992 and was visited for one night by three al-Qaeda members who knew of Slahi from that period. Two of those overnight guests would later participate in the 9/11 terrorist attacks and Slahi was alleged to have “recruited” them.  A U.S. Circuit Court of Appeal later threw out that charge, writing that prosecutors failed to establish a connection between Slahi, the hijackers or the 9/11 attacks.

Slahi’s alleged connection to Los Angeles airport bombing plot was even more stretched.  After completing his studies in Germany, Slahi lived briefly in Montreal and attended a mosque also attended by the would-be bomber.  No evidence ever emerged that they met and Canadian authorities cleared him of any connection to the plot.  

But in the days after the 9/11 al-Qaeda attacks on the United States, Slahi – then back in his native Mauritania -- was again picked up for questioning by Mauritanian authorities and FBI agents, where his troubles took a serious turn.  He was transferred to the CIA, which sent him to secret facility in Jordan where, according to subsequent testimony, he was held for eight months and tortured by Jordanians.  

He was returned to CIA control, transferred to the U.S. military and sent to Guantanamo in August, 2002, where he endured further “enhanced interrogation” including sleep deprivation, beatings, humiliation and a mock execution where he was taken out to sea and told he would be drowned. 

Although Slahi “confessed” after such treatment, even the military prosecutor who preceded Davis at Guantanamo refused to bring charges.  Marine Lieutenant Colonel Stuart Couch told the Wall Street Journal that “the core of the government’s case had been taken through torture, rendering them inadmissible under U.S. and international law.”

Davis, who followed Couch as prosecutor in 2005, reviewed the evidence and agreed with Couch that Slahi couldn’t be prosecuted.  Still, the FBI continued to view Slahi as a potential intelligence source and he remained stuck in a legal limbo at Guantanamo, facing no charges but unable to win his freedom.

His treatment, however, changed dramatically. Slahi was given his own prison unit complete with a garden and barbecue grill.  In 2015 he told his story in a best-selling book, “Guantanamo Diary,” that brought renewed interest to his plight and that of other captives still in U.S. custody.

When in 2016 Slahi’s case was brought before the Military Commission’s Periodic Review Board, Davis wrote a lengthy letter detailing his contacts during his time as prosecutor with Slahi.  He wrote: “Unless there is new evidence that shows Mr. Slahi engaged in acts hostile to the United States that I did not see, I believe it is long past time to look in the mirror and ask if we would condone the continued detention of an American citizens under the same circumstance.”

In 2013 Davis was interviewed for an article in Slate magazine and asked how it could be that Slahi remained imprisoned for so long.  Davis said he had come to see Slahi as the movie character “Forrest Gump” whose life intersected with many historical events.

After years of chasing the suspicions that trailed Slahi, “The ultimate conclusion was, ‘This looks odd, and that looks odd, and that – and at the end of the day all we can show is that it … well, it looks odd.’  They could never directly link him to any attempt to cause any real harm,” Davis said.

After 14 years of captivity, Slahi was released from Guantanamo in October 2016 without facing any charges and he returned home to Mauritania.

AVL Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. Tom Fiedler is former executive editor of The Miami Herald, where he shared a Pulitzer Prize for his political reporting. Contact us at avlwatchdog@gmail.com.