Guantánamo: the curse of the Military Commissions strikes the prosecutors

The Military Commissions –- the Stalinesque show trials dreamt up in November 2001 by Dick Cheney and his cabal of close advisors, including David Addington –- have been dogged by controversy ever since. Killed off by the Supreme Court in June 2006, brought back to life through the ghoulish Military Commissions Act a few months later, and then killed off again three months ago, this long-running horror show –- which is beginning to rival A Nightmare on Elm Street’s Freddie Krueger for deathless longevity –- returned from the grave again on Monday, when a trio of judges in a hastily convened appeals court ruled that announcements of the Commissions’ death in June had been premature. (For the full story, see my recent article here).

So far so good for the “Dark Side,” then. But wait! Before the ink had even dried on the script for the Commissions’ latest rebirth, the Wall Street Journal reported that all was not well behind the scenes, and that the monster’s puppeteers were engaged in a bitter dispute over the future of their masters’ creation. According to “people familiar with the matter,” as Jess Bravin described it, the Commissions’ chief prosecutor, Col. Morris Davis, who took the job in 2005, has “filed a formal complaint,” alleging that Brig. Gen. Thomas Hartmann, the legal adviser to retired judge Susan Crawford, the “convening authority” overseeing the trials, has “overstepped his mandate by interfering directly in cases.” In a letter seen by the WSJ, Davis suggested that both he and Hartmann should resign “for the good of the process.” Davis added, “If he believes in military commissions as strongly as I do, then let’s do the right thing and both of us walk away before we do more harm.”

Col. Morris Davis

Officials cited by Bravin said that the dispute “has left the prosecution office in disarray,” with prosecutors “uncertain who is in command and which cases they should pursue,” out of the 80 or so that have been regularly touted by the administration as those who will face what Bravin describes, a little gingerly, as the “offshore court.” The dispute is apparently so severe that Davis has “refused to file additional charges against Guantánamo inmates until [it] is resolved,” and the Pentagon’s general counsel, William J. Haynes II –- a protégé of David Addington, who was involved in the development of the administration’s torture policies (aka “enhanced interrogation techniques”) in 2002 –- authorized an investigation, which, according to a senior defense official, found in favor of Hartmann. “Davis is obliged to heed the orders of Hartmann whether or not he likes them, so long as they’re lawful,” the official explained. “And there’s no indication that he’s issued any unlawful orders.”

The conflict is already affecting the case of the Yemeni Salim Hamdan, one of Osama bin Laden’s drivers. Hartmann has apparently suggested offering Hamdan a plea bargain –- perhaps similar to the one that saw David Hicks released in May –- overruling “the objections of trial prosecutors.” And this is where it gets really interesting, as the conflict seems to be focused on Hartmann’s opposition to what he perceives as the weakness of the cases that Davis has chosen to pursue: those which, like Hicks, Hamdan and the Canadian child soldier Omar Khadr, “rely largely on unclassified evidence, allowing trials to be open to the press to address criticism that the process is too secretive,” even though these cases “tend to involve relatively undramatic charges, such as providing services to a terrorist organization.” Hartmann, in contrast, wants higher profile cases, which “could attract more public attention and perhaps also support for the tribunal system, even though they may involve closed proceedings.”

The problems with the positions adopted by both Davis and Hartmann are apparent, and neither shows the system in a good light. On the one hand, there are the admitted weakness of Davis’ cases, and, on the other, Hartmann’s presumption that a system involving “closed proceedings” might attract public support. Less clear is how the conflict will be resolved. Hartmann –- a reservist who took office in July, and whose civilian job is chief counsel to the Connecticut-based Mxenergy Holdings Inc. –- is actually Davis’ superior officer, and is “supposed to provide impartial advice” to Susan Crawford. According to the rules set up for the Commissions, his role is to “make an independent and informed appraisal of the charges and evidence,” to help Crawford “decide whether charges proposed by the prosecutors are sufficient to go to trial.”

Brig. Gen. Thomas Hartmann

However, he is not universally admired. Having taken charge of the prosecution office while Davis was away, recovering from surgery, he apparently took advantage of the prosecutor’s absence to shake things up as he saw fit. One critic is Cully Stimson, the former deputy assistant defense secretary for detainee affairs, who is now a fellow at the Heritage Foundation. (Memorably, though Jess Bravin didn’t mention it, Stimson, who helped draft the Commissions’ rules, lost his government job earlier this year, after starting a witch-hunt against corporate law firms who do pro bono work for the detainees). Stimson, who appears more contrite these days, said that he didn’t anticipate Hartmann “meddling in the day-to-day operations of the prosecutor.” He explained that, if so advised by Hartmann, Crawford could “negotiate plea bargains even over the prosecutor’s objection,” but added that, just as the defense “should not be influenced or have the appearance of being influenced, so they can do the best for their client, the same should be true for the prosecution.”

Other critics have spoken out from within the prosecutor’s office. Although a lawyer close to the process told Bravin that Hartmann had complained that, after four years, the prosecution was “still unready to try cases,” and was frustrated with their “can’t do” approach, some prosecutors have complained that Hartmann “is ‘micromanaging’ cases he doesn’t fully understand.” The case of Salim Hamdan, as Bravin describes it, “has struck a particular nerve.” Prosecutors have explained that negotiating a plea deal with Hamdan “would be a blow to the government’s credibility.” In a particularly revealing admission, which illuminates the failures of the Commission system more than anyone involved in it would care to admit, one prosecutor said, “Think of our only other ‘success’ in this –- David Hicks. How is that a success for the United States government? How does that justify Guantánamo?”

As Col. Davis fumes, contending that the Military Commissions Act “bars outside interference in the ‘professional judgment’ of prosecution and defense lawyers,” and stating, in no uncertain terms, that “If someone above me tries to intimidate me in determining who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution, then I will resign,” those whose reputations are really on the line –- President Bush and Vice President Cheney –- must be hoping for a swift resolution to the in-fighting. Having just revealed the scale of their ambition, lining up the “high-value” detainees for Military Commissions by allowing them access to lawyers for the first time –- which, in the case of the longest-held detainee, Abu Zubaydah, is the first time in five and a half years that he has been allowed this right –- the last thing they need is for the squabbling among their monster’s puppeteers to bring the whole sorry charade crashing down once more.

Bring on the monster, then. Those of us who still believe in the rule of law know that this inept, misguided and unjust creation will collapse again sooner or later, anyway.

For more on the legal struggles over Guantánamo, see my book The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed.

As published on CounterPunch.

See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Four more charged, including Binyam Mohamed (June 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), High Court rules against UK and US in case of Binyam Mohamed (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), Meltdown at the Guantánamo Trials (five trials dropped, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), Guilt by Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).

And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), A Broken Circus: Guantánamo Trials Convene For One Day Of Chaos (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).