Corruption at Guantánamo: Military Commissions Under Investigation

In a third article looking at the corrupt chain of command in the Military Commissions at Guantanamo, Andy Worthington, author of The Guantánamo Files, looks at the implications of the recently announced military investigations into the conduct of the Commissions’ former legal adviser, Brig. Gen. Thomas Hartmann, but doubts that either investigation will be encouraged to look up the chain of command to see who was pulling Hartmann’s strings.

Last month saw the “reassignment” of Air Force Brig. Gen. Thomas Hartmann, the legal adviser to Susan Crawford, the Convening Authority who oversees the Military Commissions at Guantánamo (the system of “terror trials” conceived by Vice President Dick Cheney and his close advisers in November 2001). Hartmann, who was appointed in July 2007, was removed from his post after three government-appointed military judges had disqualified him from playing any further part in two trials — those of Salim Hamdan and Mohamed Jawad — and had also excluded him from a post-trial review in the case of Omar Khadr, because of his transparent pro-prosecution bias.

Hartmann had certainly ignored the requirement in his job description (as laid down in the Military Commissions Act of 2006) to deal impartially with both the prosecution and the defense, as two unexpected critics had confirmed over the previous months. In August, Brig. Gen. Gregory Zanetti, the deputy commander of Guantánamo’s Joint Task Force, testified that Hartmann’s demeanor was “abusive, bullying and unprofessional … pretty much across the board,” and in a memorable line described his approach as, “Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.”

A few weeks ago Maj. David Frakt, the military defense lawyer for Mohamed Jawad, directed me to a deposition in Jawad’s case that was made in June by Capt. Patrick McCarthy, the Staff Judge Advocate of Joint Task Force Guantánamo, who noted that Hartmann was “remarkably aggressive” to him during meetings at Guantánamo, and that his “preferred approach” to personnel in Guantánamo was to “aggressively question” them, “and then when I attempted to interject and correct misunderstandings that were clear in the conversation, he would say things like, ‘who asked you? No one has asked you. You just be quiet.’ Things along those lines.”

As I also wrote in an article following Maj. Frakt’s correspondence with me:

Capt. McCarthy also testified that, as well as being bullying and dismissive to himself and, it seemed, every other officer below the rank of General or Admiral at Guantánamo, Hartmann had held several secure video teleconferences with the commanders at Guantánamo, and two face-to-face meetings, which, it appeared, were also part of his mission to “brief” commanders on how and when the trials would proceed, rather than allowing these issues to be developed by the prosecutors. As McCarthy described it, Hartmann “would closely identify himself with prosecutorial efforts,” was “involved at a level of detail that no other general or flag officer that I’ve ever worked for or with has ever been involved at,” and gave the impression that he was “responsible for moving forward with military commissions in all respects.”

As reported by the Los Angeles Times, which first announced the story of the investigations, Hartmann is facing investigations by both the Air Force and the Defense Department’s Office of the Inspector General. The latter, reflecting the testimony above, centers on complaints by at least two military officials about Hartmann’s “abusive and retaliatory behavior” towards them in the Office of Military Commissions, but the first is regarded as the more serious of the two, because military officials explained that “it was launched only after a preliminary inquiry found sufficient grounds to move forward.”

Investigators will look not only at allegations of Hartmann’s much-reported bullying, but more particularly at its baleful effects on the Commissions: cases proceeding to trial before they were ready (and in one instance on the basis of “charges that were unwarranted”), Hartmann’s insistence on using evidence obtained through coercion despite the objections of prosecutors, and “intentionally misleading statements,” which Hartmann made both in public and during the Commission proceedings, “in an effort to downplay the direct role that he played” on behalf of the prosecution.

These are all familiar complaints to those who have studied Hartmann’s tenure closely. As Capt. McCarthy explained in June, Hartmann had shown him a timeline of charges in November 2007, which indicated how many cases would proceed and when they would take place, and which also, of course, indicated that the decisions to proceed were not in the hands of the prosecutors, as they should have been. In a hearing at Guantánamo in the same month, Hartmann admitted that this timeline existed, but as Maj. Frakt explained, it was not until he compared the dates on Hartmann’s chart with the dates the prisoners were actually charged that he realized that they were remarkably similar. In a motion to dismiss in August, he wrote, “It is easy to come up with a sinister explanation for the congruence of the chart and the scheduling order. It is hard to come up with an innocent one.”

Maj. Frakt also pointed out how Hartmann had persistently misrepresented his role in public announcements when charges were put forward in various cases (for example, here and here), when he “gave the impression that no decisions had been made by him, that he had no prior familiarity with the evidence and that he was taking an open-minded review of the evidence.” The issue of using coerced evidence was addressed by Col. Morris Davis (photo, left), the Commissions’ former chief prosecutor, who resigned in October 2007, the day after he had been put in a chain of command below Hartmann, who was himself answerable to the Pentagon’s chief counsel, William J. Haynes II. Complaining of political interference, and the desire by his superiors to use evidence obtained through coercion — or even through torture — to which he was implacably opposed, Davis explained last December that he resigned after concluding that “full, fair and open trials were not possible under the current system.”

Unsurprisingly, both Col. Davis and Maj. Frakt have been “interviewed at length” by the Air Force inquiry’s chief investigator, Brig. Gen. Steven J. Lepper, who was assigned to the investigation after an unidentified military defense lawyer complained about Hartmann to Lt. Gen. Jack L. Rives, the Air Force’s Judge Advocate General, who in turn “referred the matter to his advisory committee on professional responsibility, which launched a preliminary inquiry and reported that a full investigation was warranted.”

Reiterating well-trodden complaints, Davis told the Los Angeles Times that Hartmann had “grossly exceeded his role as a neutral and independent and impartial legal advisor,” and Frakt said he “came forward with allegations about Hartmann because military regulations require one lawyer to report another if there is ‘a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.’” He added, “I do believe that Brig. Gen. Hartmann has acted in a manner that raises substantial questions as to his honesty, professionalism and fitness as a lawyer, and I believe his conduct has been prejudicial to the fair administration of justice in the military commissions.”

Another former prosecutor, who declined to be identified, told the Times that he too had been approached by Lepper. Reinforcing complaints aired above, he explained that he believed that Hartmann “was hammering on other prosecutors to move faster on cases, in one instance demanding that three or more cases a month be initiated,” even if they were not ready.

For opponents of Hartmann, the investigations will hopefully validate their many complaints about his excessive and inappropriate zeal. Although the investigations have no fixed timeline, the Times reported that, “if Hartmann was found to have acted improperly, he would face administrative sanctions that could include removal of his Judge Advocate General certification,” and other military lawyers suggested that Lt. Gen. Rives could “transfer Hartmann away from the Guantánamo cases or even ask for his retirement.”

Even more significantly, Scott Silliman of Duke University, who served in the Air Force’s Judge Advocate General Corps for 25 years, noted, “If there is a finding that Hartmann exceeded his role, I think every defense lawyer is going to walk in and move for some kind of relief in their case, and say it was not handled properly and move for the charges to be dismissed or refiled based on Hartmann’s activities.”

For me, this would be the best outcome of the investigations, for one simple reason. Much as I share numerous commentators’ delight that Hartmann’s exercise of undue command influence is being investigated, it is apparent, as I reported in a detailed article a month ago, that in many ways Hartmann was used by his superiors to act on their behalf and, simultaneously, to shield them from criticism. To understand the underlying reasons for the exercise of undue command influence in the Military Commissions, it is necessary to gaze up the chain of command to those who were directing Hartmann’s bias.

This chain of command, which caused Col. Davis to resign, leads from Hartmann to Susan Crawford, on to the Pentagon’s Chief Counsel (formerly Haynes, and now Daniel Dell’Orto), and from there to Dick Cheney and his chief of staff David Addington, the engineers of the whole malign project. For justice to have a chance to prevail, two investigations into Hartmann’s role are unlikely to be sufficient. Instead, the whole Commission process must be shut down, which will hopefully happen when a new administration takes office and the services of Cheney, Addington, Dell’Orto and Crawford are no longer required.

Andy Worthington is the author of 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, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published exclusively on the website of the Future of Freedom Foundation.

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), The curse of the Military Commissions strikes the prosecutors (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), 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).