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Blowback Strikes Guantánamo Prosecutors

The Curse of the Military Commissions

by ANDY WORTHINGTON

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 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.

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."

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."

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.

ANDY WORTHINGTON is a British historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (to be published by Pluto Press in October 2007).
He can be reached at: andy@andyworthington.co.uk