Controversy Still Plagues Military Commissions

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 entire process.

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 Jawad, Mohammed 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 home.

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 clashed. 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 time around.

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 flier program."

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 and fairness."

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 cases."

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.