One month ago, when the jury in the first U.S.
war crimes trial since the Second World War found Salim
Hamdan guilty of providing material support for terrorism, but not guilty
of conspiracy, the U.S. administration regarded it as a victory, even though
numerous commentators – myself included – remained profoundly critical of the
Moreover, the "victory" touted by the administration was undermined
by the brevity of the sentence
handed down: just five and half years, as opposed to the 30-year sentence sought
by the prosecution. Allowing for time served since he was first charged, this
left Hamdan just five months to serve, but the administration was revealed
in its true colors when Pentagon spokesman Bryan Whitman explained
that "it has always been the Defense Department's position that detainees
could be held as enemy combatants even after acquittal at military commissions
or after serving a prison sentence."
Another Insignificant Afghan Charged
Lost in the coverage of Hamdan's trial, which
dominated media reports about Guantánamo at the end of July and the
start of August, was the fact that a 23rd prisoner, an Afghan named Abdul Ghani,
had been put forward for trial by military commission on July 28.
It was alleged that the 36-year old, who was charged [.pdf]
with conspiracy, providing material support for terrorism, and attempted murder
in violation of the rules of war, had "fired rockets at U.S. forces and
bases," had transported and helped plant "land mines and other explosive
devices on more than one occasion for use against U.S. and coalition forces,"
had "participated in an attack on Afghan soldiers with small arms fire,
in which one Afghan soldier was wounded," and had "accepted monetary
payments, including payment from al-Qaeda and others known and unknown, to
commit attacks on U.S. forces and bases."
Apart from the inclusion of the magic words "al-Qaeda," there was
nothing in Abdul Ghani's charge sheet to indicate that he should find himself
in the same trial system as those accused of involvement in the 9/11
attacks, the African
embassy bombings of 1998, or the bombing
of the USS Cole in 2000, or even, in fact, that he should have been
sent to Guantánamo at all.
Perhaps, if his case goes to trial, more will be revealed about this alleged
al-Qaeda connection (which Ghani denied in his tribunal at Guantánamo),
but in the meantime he joins an ever growing list of, at best, minor Afghan
insurgents – Mohamed
Kamin, and Mohammed
Hashim – who would never, at any other time in American history, have found
themselves on trial as terrorists, having already endured four to five years
of almost total isolation in an experimental prison half a world away from
After Hamdan's sentence, with the charges against Abdul Ghani completely
overlooked (primarily, it seems, because they were filed on the Pentagon's
Web site without any fanfare), there was a brief flurry of activity in the
cases of the Canadian Omar
Khadr, who was just 15 years old when he was seized in July 2002, Mohammed
Jawad (also a teenager when he was seized), and Ali
Hamza al-Bahlul, a Yemeni who is accused of producing videos for al-Qaeda
and serving as a bodyguard for Osama bin Laden, before silence descended on
Guantánamo once more.
More Challenges in Omar Khadr's Case
On Aug. 13, pre-trial hearings resumed for Omar
Khadr, whose trial is scheduled to begin on Oct. 8, as his indefatigable U.S.
military lawyer, Lt. Cmdr. William Kuebler, and his Canadian civilian lawyer,
Dennis Edney, attempted once more to dismantle the case against their client,
as they have been trying to do since his first pretrial hearings last June.
As the Globe
and Mail described it, Lt. Cmdr. Kuebler "asked the court to allow
the defense to produce testimony from an expert on false confessions made by
juveniles." The prosecution did not object, but argued that the clinical
psychologist and developmental psychiatrist requested by the defense team –
who would cost $60,000 – were too expensive, and suggested that experts employed
by the government would be an adequate substitute.
Lt. Cmdr. Kuebler also sought a favorable ruling regarding allegations of
"unlawful influence" exercised over the commission proceedings through
the sudden removal from Omar's case of Col. Peter Brownback, who had been the
trial judge since last June. Col. Brownback was unexpectedly removed from the
case in May, following a series of heated exchanges with prosecutors in which
he refused to set a trial date before the prosecution handed over evidence
to the defense and threatened to suspend proceedings," as Lt. Cmdr. Kuebler
explained in a press release.
Omar's hearing only really came to life during an exchange over another of
the defense's "unlawful influence" claims, when two bitter rivals
The first was Col. Morris Davis, the commissions' former chief prosecutor,
who resigned last fall, and has since become an outspoken critic of the politicization
of the process and its efforts to use evidence obtained through torture. The
second was Brig. Gen. Thomas Hartmann, who took over last summer as the legal
adviser to the commissions' convening authority (Susan Crawford, the retired
judge and friend of Dick Cheney who oversees the commissions), whose appointment
set in motion the chain of events that led to Davis' resignation.
Brig. Gen. Hartmann had already been excluded from one case, when, in May,
Capt. Keith Allred, the judge in Salim Hamdan's case, ruled that he had exerted
"unlawful command influence" over the proceedings (in other words,
that he had been biased in favor of the prosecution in what was supposed to
be an impartial process), and Col. Davis clearly relished the opportunity to
lash out at him once more. Speaking by teleconference from Washington, he explained
that there was a sense of urgency within the administration to produce results
before November's election, which he characterized as follows: "If we
didn't get [the military commission] up and running and get the public behind
it, it would implode. Cases like Khadr's were going to bring political support
and make it harder for the next commander in chief to stop the process."
Col. Davis pointed out, as he has before, that for Hartmann the Khadr case
was "sexy." Hartmann "liked the Khadr case," he continued,
describing it as "the kind of case the public's going to get energized
about." Asked to describe Hartmann's management style, he said it was
"overbearing and tactless."
As in May, when his testimony was credited with helping remove Hartmann from
Hamdan's case, Col. Davis also directed much of his vitriol at Defense Department
general counsel William J. Haynes II, who explicitly supported the use of evidence
through torture, and explained, "The influence that expedited the charging
of Khadr came from Jim Haynes."
For his part, Brig. Gen. Hartmann, who also spoke by teleconference, had little
to say. Refuting Col. Davis' allegations, he conceded only that he had told
Col. Davis that the cases chosen ought to catch the public's imagination, "or
something to that effect."
Unfortunately for Omar, the new judge in his case, Col. Patrick Parrish, had
little time for the defense's requests. In a brief ruling on Aug. 14, as Lt.
Cmdr. Kuebler stated in his press release, he "agreed that the defense
should have the services of either a clinical psychologist or developmental
psychiatrist" (but not both), although he then favored the prosecutors'
objections by directing them "to locate a 'comparably qualified' government
substitute to the experts requested by the defense."
In addition, as Lt. Cmdr. Kuebler noted ruefully, Col. Parrish "granted
the prosecution's request for a mental health evaluation by military
doctors (with no special training in child psychology), ignoring defense claims
that such an evaluation could set back months of rapport building by Omar's
defense team as part of efforts to get [Omar] to talk about his mistreatment
and abuse at the hands of U.S. authorities." He added, as a further
explanation of why this was a cynically counterproductive move, "Military
mental health professionals have assisted in manipulating and exploiting Omar
as a source of intelligence in the course of his detention by U.S. authorities."
Col. Parrish also refused to dismiss Brig. Gen. Hartmann from the case, and
he rejected the defense's claim of "unlawful influence" stemming
from Col. Brownback's removal, dismissing it as an "implausible conspiracy
theory", even though, as Lt. Cmdr. Kuebler explained, the Pentagon has
"never adequately explained" the decision to "return Brownback
to retired status in the middle of the Khadr case" and has "issued
contradictory and misleading explanations." He added that just-released
documents suggested that the decision was indeed political, as it "came
within days of Brownback's February decision to order a hearing on disclosure
of evidence, thereby throwing off a previously scheduled May trial date."
Omar's pretrial hearing was, therefore, a setback for the defense in almost
all respects, with Col. Parrish's decisions, for the most part, reinforcing
suspicions that the unruly Col. Brownback (who, with Capt. Keith Allred, Salim
Hamdan's judge, had temporarily derailed
the entire commission process last June), was removed to make way for a judge
who would be less critical of the prosecutors. His only moment of independence
came when he criticized the prosecution for a long delay in handing over a
report to the defense team, which, it must be said, is so frequent a complaint
that it seems to be deliberate policy on the part of the government. Setting
them a deadline, he stated that the process should "move faster than glaciers."
Hartmann Slammed in Mohammed Jawad's Hearing
Although Brig. Gen. Hartmann escaped exclusion
from Omar's case, he was not so lucky in another courtroom in Guantánamo.
On the same day that Omar's pretrial hearing began, Mohammed Jawad, the Afghan
teenager accused of throwing a grenade that wounded two U.S. soldiers and an
Afghan interpreter, was also in court, for another pretrial hearing in which
a new witness, Brig. Gen. Gregory Zanetti, the deputy commander of Guantánamo's
Joint Task Force, accomplished what Col. Davis had failed to achieve a second
Also speaking from Washington, by telephone and teleconference, Brig. Gen.
Zanetti launched into the first attack on Hartmann by an officer of equal rank,
declaring that Hartmann's demeanor, "as an attorney from a thousand miles
away," was "abusive, bullying, and unprofessional … pretty much across
the board." In a memorable line, he described Hartmann's approach as,
"Spray and pray. Charge everybody. Let's go. Speed, speed, speed."
As Carol Rosenberg put it in the Miami
Herald, Brig. Gen. Zanetti "described struggling with Hartmann
over who would run U.S. forces working on trial logistics," and said that
he sought to discuss the concept of "command unity" with him. "As
a principle, it's really been around since Alexander the Great. Most military
people understand this one," he said, adding, however, that "Gen.
Hartmann really wanted to run things."
Like Omar Khadr's lawyers, Mohamed Jawad's lawyer, Maj. David Frakt, was seeking
to have his charges dismissed on the grounds that Brig. Gen. Hartmann exerted
"unlawful influence" on the trial. In his motion, he alleged that
Hartmann "usurped the role of a prosecutor – rather than acting dispassionately
– and pushed to get Jawad charged because the case involved battlefield bloodshed."
Maj. Frakt had obtained a court order from the judge, Col. Stephen Henley,
to compel Brig. Gen. Zanetti's testimony, but even he must have been surprised
at how vigorously the commissions' legal adviser was attacked.
The result of Zanetti's vigorous testimony was Brig. Gen. Hartmann's exclusion
from a second trial. Far from just pushing to get Jawad charged, it transpired,
as Jane Sutton of Reuters
described it, that Jawad's defense team had pointed out to the judge that Hartmann
had "failed to turn over defense documents" to his immediate boss,
Susan Crawford, the commissions' convening authority, even though these documents
"outlined mitigating circumstances that might have altered her decision
to endorse the charges."
In response, Col. Henley not only dismissed Brig. Gen. Hartmann from further
involvement in Jawad's case, but also "ordered the documents to be sent
to Crawford along with other potentially exculpatory information." Although
he refused to order the charges to be dropped entirely, he made a request for
Crawford to review the charges, indicating that it was up to her to decide
whether to "drop or reduce them."
This was, not for the first time, a significant blow to the commission process,
not only for the second exposure of Brig. Gen. Hartmann's inappropriately controlling
role, but also because it exposed the cavalier manner in which Hartmann withheld
potentially exculpatory evidence from Susan Crawford, which revealed, explicitly,
the rigged nature of the commission process.
Maj. Frakt was, of course, delighted. "For the first time, she will be
presented with a balanced portrait of the facts and the circumstances of this
case," he explained, pointing out that the mitigating factors which would
now be presented to Susan Crawford were not only Mohamed Jawad's age at the
time of his capture (he was either 16 or 17), but also the fact that he had
been drugged when he was recruited for what was described to him as a mine-clearing
operation, that three people in total had confessed to throwing the grenade,
that he was beaten and chained to a wall while in U.S. custody in Afghanistan,
and that he had been subjected, in Guantánamo, to the "frequent
This was a process of extreme sleep deprivation, condemned as abusive in a
report about conditions in Guantánamo by Lt. Gen. Randall Schmidt, in
which prisoners were moved from cell to cell every few hours to prevent them
from sleeping. Documents obtained by Maj. Frakt demonstrated that Jawad had
been subjected to the program from May 7 to May 20, 2004, even though the authorities
claimed that it had stopped in March 2004, and at Jawad's pretrial hearing
an intelligence officer for the Joint Detention Operation Group (JDOG) admitted
that it had actually "continued until at least April 2005 with the knowledge
and concurrence of the JTF-GTMO and JODF commanders."
An Alleged al-Qaeda Operative Exits Center Stage
After these developments, the last pretrial hearing,
on Aug. 15, was something of an anticlimax, as Ali Hamza al-Bahlul walked away
from his hearing. "You are the judge and I am the accused," he told
the judge, Col. Ronald Gregory, who had replaced Col. Brownback in his case
as well as that of Omar Khadr. "At the same time, you are my enemy. We
don't really accept this kind of logic." Speaking through an interpreter,
he added, "I do not have any trust in this legal farce. Continue this
illegal play in any way you wish." As Jane Sutton of Reuters
described it, Bahlul "had intended to act as his own attorney, but the
judge ruled that he lost that right when he left the courtroom under escort."
Bahlul added that "he would boycott further proceedings and return to
hear his sentence after the trial ended, presumably with his conviction."
Maj. Frakt, who was appointed to represent Bahlul as well as Mohamed Jawad,
explained to reporters, "I think he thinks this circus has gone on long
enough," although he said that he would honor his request to put on no
defense at all, and asked Col. Gregory for a "speedy trial."
A speedy trial will no doubt please the administration in some respects, as
it believes it has a strong case against Bahlul. According to the commissions'
rules, it could begin within 90 days, meaning that a victory would occur after
the election, but before the administration leaves office. However, the prospect
of such a significant trial taking place "with no defendant and no defense,"
as Reuters described it, would surely lack legitimacy in the eyes of all but
the administration's most fervent supporters. As Jennifer Turner of the American
Civil Liberties Union explained, "To proceed without al-Bahlul, without
mounting a defense, destroys any possibility of any appearance of legitimacy
Hartmann Condemned Again: Three Strikes and You're Out
With Bahlul's exit, all activity in the commissions
ground to a halt until Sept. 4, when, in his latest ruling in Omar Khadr's
case, Col. Parrish unexpectedly struck another blow against Brig. Gen. Hartmann.
Although he ruled that Omar's trial would go ahead as planned on Oct. 8, he
barred Hartmann from reviewing it, in the case of a conviction, because of
what Carol Rosenberg described
as "an appearance of pro-prosecution bias."
Although there was no immediate response from the Pentagon, Charles "Cully"
Stimson, a former deputy assistant secretary for detainee affairs, who famously
resigned after directing grossly insensitive comments at law firms working
pro bono on behalf of prisoners in Guantánamo (and who now works for
the Heritage Foundation), suddenly stepped forward to suggest that, under a
"three strikes and you're out" philosophy, Hartmann should resign.
"If Hartmann continues in this role and soils each case that he touches,"
Stimson said, "by definition it will result in reversal or it will result
in the next judge removing Hartmann and the next judge removing Hartmann. How
many times do you have to get kicked in the shins and say ouch?" He added
that Hartmann should be "thanked and excused from his service," and
explained that he was particularly concerned about challenges and appeals frustrating
the forthcoming trial of Khalid Sheikh Mohammed and his co-conspirators in
the 9/11 attacks, which Hartmann "helped shepherd." As Carol Rosenberg
described it, Stimson also suggested that the Defense Department "should
reorganize the role of legal adviser to separate the supervision of the Pentagon's
War Crimes Prosecutor from the legal authority that independently reviews the
This time, the Pentagon finally responded, wheeling out "war court spokesman"
Joseph DellaVedova to support Hartmann, insisting that he "remains focused
on doing his job as the legal adviser to the convening authority, and he will
continue to do it." This was unsurprising, as the Pentagon has consistently
supported both Brig. Gen. Hartmann and Susan Crawford, who remains, somehow,
beyond criticism, but the maneuvering of the last month does little to reassure
observers that the administration's last-ditch attempts to secure its anti-terror
legacy before the elections will run as smoothly as they had hoped.