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Commentary: War crimes trials and outside pressure


The Nation’s first war crimes trial in the post-9/11 era is still set to begin in 17 days — unless the D.C. Circuit Court delays it — but that prosecution and perhaps others will occur under potentially embarrassing conditions. In fact, the entire regme of military commissions set up to try terrorism suspects is under the most significant legal cloud to form in what was already a troubled history.

In a ruling made public over the weekend, a military judge at Guantanamo Bay has barred the Pentagon’s second-in-command over military commission trials from taking any further part in the first case, and has in fact suggested that he perhaps should resign. 

The decision Friday night by a Navy officer serving as the head of a military commission, Captain Keith J. Allred, amounts to a sharply worded rebuke of top Pentagon officers for putting outside pressure on the trial process –to bring cases for their political impact, to get the trials moving faster, and to influence the evidence to be used (including evidence obtained by torture or coercion).   The 13-page ruling can be downloaded here.

The main target of Judge Allred’s findings is Air Force General Thomas W. Hartmann, who is the legal adviser to the top Pentagon official overseeing military commissions.  It is Gen. Hartmann who has been barred by the judge from any further participation in the war crimes case against Salim Ahmed Hamdan — likely to be the first such trial at Guantanamo.  (Note that Hamdan’s attorneys have pending at the D.C. Circuit a motion to delay his Guantanamo trial until after the Supreme Court rules this Term on the legal rights of detainees. That matter has been fully briefed, but the Circuit Court has taken no action on it in Hamdan v. Gates, Circuit docket 07-5042. )

In one of the military judge’s key findings, he wrote that Hartmann’s “intimate involvement in the details of prosecutorial decision-making have led one prosecutor to resign, another to seek ethical guidance from the Navy JAG ethics office, and has led both prosecutors in this case, and their foirmer supervisor, to believe they were being ‘nano-managed’ in both the performance of his duties and the exercise of their discretion.”

Allred also found that “the national attention focused on this dispute has seriously called into question the Legal Advisor’s ability to continue to perform his duties in a neutral and objective manner.  While the public’s view of the matter is not controlling, the fact that a national magazine should have called the public’s attention to General Hartmann’s actions and suggested that he can no longer perform his duties is deeply disturbing.”

The judge disqualified Hartman from any further role in the Hamdan case, required the Pentagon to name a substitute for Hartmann for any future role in that case (and barred from such an assignment anyone on Hartmann’s current staff), ordered top Pentago officials to ensure that no person suffers retaliation or harmful consequences for testimony given in an internal Pentagon review of Hartmann’s actions or in Judge Allred’s review of those actions, and kept control of the challenge. The judge stressed that he would be “alert for evidence of unlawful influence” until the Hamdan case is over, and added that “additional corrective and preventative measures remain within the Commission’s discretion until that time, if necessary.”

The judge’s ruling came in response to a plea by Hamdan’s defense lawyers to throw out all charges against him because of Hartmann’s actions, and those of other top Pentagon officials.  The judge refused to go that far, finding no unlawful influence in bringing the specific charges against Hamdan.  The judge also declined to take any action against Hartmann’s superior, Susan Crawford, who is in overall charge of the  military commission system. (Crawford, a former judge of the Court of Appeals of the Armed Forces, has the title “Convening Authority” for military commissions.)

The defense lawyers’ challenge was based in large part on information from the former chief prosecutor at Guantanamo, Air Force Col. Morris Davis, who resigned his post after a continuing dispute with Hartmann over commission affairs. Davis has gone public with his complaint of improper political and command influence in the war crimes system.  He also testified in Judge Allred’s review of the issue in Hamdan’s case.

Judge Allred’s decision against any continuing role for Hartmann in the Hamdan case presumably could be appealed by the Pentagon to the Court of Military Commission Review.  It is unclear whether there is any review role on this aspect of the commission system for the D.C. Circuit or for the Supreme Court.)

The judge found his authority to rule on Hartmann’s actions in provisions of the Military Commissions Act of 2006 barring any person from coercing or using unauthorized means to influence the exercise of professional actions of war crimes prosecutors and defense lawyers. The judge said that “Congress had the intent to protect military commission participants from unlawful influence, and specifically from political influence” and that its purpose was “to protect the integrity of the proceedings and enhance their reputation in the public view.”