New Evidence of Systemic Bias in Guantánamo Trials

In the last three weeks, two events have occurred that have dealt what should have been a knockout blow to the Military Commissions at Guantánamo, the system of trials for "terror suspects" – outside of the US court system and the US military's own judicial system – that was created by Vice President Dick Cheney and his close advisers (in particular, his legal counsel David Addington) in November 2001.

On September 24, Lt. Col. Darrel Vandeveld, the prosecutor in the case of Mohamed Jawad (an Afghan accused of throwing a grenade at a jeep containing two US soldiers and an Afghan interpreter), resigned, expressing his frustration and disappointment that "potentially exculpatory evidence" had "not been provided" to Jawad's defense team, and on September 19 Brig. Gen. Hartmann, the Commissions' legal adviser, was "reassigned" after three Commission judges – all US military officers, appointed by the government – had disqualified him from two trials (and one post-trial review) because of his transparent pro-prosecution bias. This was particularly worrying, because his job description – as laid down in the Military Commissions Act of 2006, which revived the Commissions after the Supreme Court ruled them illegal – stipulated that he was required to "remain neutral and unbiased."

Last week, following further analysis – including important work by law professor Scott Horton – I wrote a detailed article, "The Dark Heart of the Guantánamo Trials," in which I drew on examples of pro-prosecution bias on the part of Hartmann's boss, Susan Crawford, the Commissions' Convening Authority, and traced this systemic bias up the chain of command, via the Pentagon's General Counsel, to Dick Cheney and David Addington, the creators of the entire Commission process. Cheney and Addington's zeal for unfettered executive power indicated, in no uncertain terms, that the impartiality of both Hartmann and Crawford was nothing more than a cloak to disguise the Commissions' naked political aims: securing convictions in a rigged system designed to prevent acquittals.

As the Washington Post recently explained, the Convening Authority is "required to exercise a neutral role in the commissions, overseeing but not dictating the work of prosecutors and allocating resources to both the prosecution and defense," but a clear example of Crawford's pro-prosecution bias was revealed by Col. Morris Davis, the Commissions' former chief prosecutor, who resigned in October 2007, primarily because of political interference in the process.

Writing in the Los Angeles Times last December, Davis wrote that Crawford, unlike her predecessor Maj. Gen. John Altenburg, whose staff had "kept its distance from the prosecution to preserve its impartiality," had overstepped her administrative role, and "had her staff assessing evidence before the filing of charges, directing the prosecution's pretrial preparation of cases" and "drafting charges against those who were accused and assigning prosecutors to cases." Davis' stark conclusion – that "Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused" – was unerringly accurate, but with Hartmann shielding her from criticism (and taking all the flak himself), Crawford has so far avoided calls for her resignation, even though, as Scott Horton pointed out in February, she is "a Cheney protégé," and is, moreover, "particularly close to Cheney's chief of staff David Addington."

Shortly after my article about the corrupt command structure of the Commissions was published, I received an enlightening email from Maj. David Frakt, Mohamed Jawad's military defense lawyer, which provided additional details confirming the bias of both Brig. Gen. Hartmann and Susan Crawford.

More Criticism of Brig. Gen. Hartmann

Maj. Frakt was kind enough to point out that "Hartmann was fired," and that "his claim that he was promoted is nonsense." He cited testimony by Hartmann in Jawad's case on June 19, and in a subsequent affidavit, in which he stated that he had three different duties as legal adviser: he was responsible for logistics, planning and resources, he was the supervisor of the prosecution, and he was the legal adviser. As Maj. Frakt explained, "His promotion consisted of removing two of those three duties. He is now responsible only for logistics, planning and resources."

He added that most of this work is done by the Commissions Support Group (CSG) at Guantánamo, headed by Brig. Gen. Zanetti, who testified in a hearing on Jawad's case in August that "Hartmann had tried to have the CSG assigned to his ‘command' even though he was in Washington and lawyers do not generally command anything," and confirmed that Hartmann "was definitely trying to take charge of the whole process." I found Zanetti's comment that "lawyers do not generally command anything" (as paraphrased by Maj. Frakt) to be particularly telling, as it reflects the way in which lawyers (Addington, John Yoo, Alberto Gonzales) have actually played crucial roles in driving the cruelest manifestations of the administration's "War on Terror" policies.

Maj. Frakt also drew my attention to other examples of Hartmann's overreach: in particular, a timeline for the trials that he created in November 2007, and reports about the ways in which he had briefed commanders at Guantánamo on his plans, both of which exceeded his remit as an impartial adviser.

According to Capt. Patrick McCarthy, the Staff Judge Advocate of Joint Task Force Guantánamo, who made a deposition in Jawad’s case on June 30 at Maj. Frakt’s request, Hartmann (who, he said, was "remarkably aggressive" to him during meetings at Guantánamo) briefed him in November 2007 on "a plan for a way forward on the number of cases that would be charged in each month." He explained, "He has a large foldout chart that's probably three or three and a half, four feet long. It's a well-known chart and it has on that chart the kind of lay down of how many cases will be proceeding and sort of monthly times as they will proceed."

Hartmann admitted the existence of this timeline during another hearing on June 19, and as Maj. Frakt demonstrated in a motion to dismiss in August, when he compared the dates on Hartmann's chart with the dates the prisoners were actually charged he realized that they were remarkably similar. "It is easy to come up with a sinister explanation for the congruence of the chart and the scheduling order," he wrote, adding, "It is hard to come up with an innocent one."

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."

More Disturbing Revelations About the Convening Authority

Maj. Frakt also revealed more disturbing details about Susan Crawford's role.

After revisiting the August ruling of Col. Stephen Henley, the judge in Jawad's case, who disqualified Hartmann for a second time, and "ordered that the defense be given an opportunity to submit matters in extenuation and mitigation, and that Crawford reconsider her referral decision and either ratify the earlier decision or take other appropriate action without further input from Hartmann," Maj. Frakt explained that in early September "the prosecutors sought reconsideration of the judge's ruling, filing a brief which included an affidavit from Hartmann and an affidavit from Crawford herself."

This is enormously significant, as it provides another concrete example of Crawford's interference, to add to Col. Davis' account, and it is made all the more disturbing by Maj. Frakt's subsequent explanation of how Hartmann and Crawford seemed to connive to sway the judge's opinion. Their argument, he wrote, centered on claims that Crawford "had not been misled by Hartmann's recommendation that the case against Jawad be referred as non-capital," which, as he pointed out, "was misleading because it suggested that capital punishment was an option, when it was not an authorized punishment for the offenses with which Jawad is charged." The end result, he noted, was that "The brief filed by the government severely distorted the facts."

Despite this, Col. Henley amended his ruling the next day, authorizing Hartmann to review the matters submitted by the defense and to supplement his original pretrial advice. Maj. Frakt was appalled. He had been denied the opportunity to respond (as he stated, he was "supposed to get one week to respond to filings from the opposing party"), and he immediately filed a motion "pointing out the factual errors in the government brief and protesting this action, including the fact that the judge acted without input from the defense." Most importantly, he "requested that Crawford be disqualified since she had made herself a witness in a contested matter before the commission." He noted, however, that "The judge never responded."

In addition, Maj. Frakt explained that, although he knew that it was "completely futile" to submit a request for reconsideration, he nevertheless "put together a detailed memorandum explaining the evidentiary, factual and legal deficiencies in the case and detailing the extensive mitigating and extenuating circumstances," which he submitted on September 15. He also included letters from concerned citizens, a petition urging Crawford to drop the case, and various legal documents, but explained that, although he "repeatedly requested a personal audience" with Crawford, "she refused to meet with me, citing a policy of not having ex parte communications with either party." Cutting once more to the heart of the problem – Crawford's thinly-veiled bias – Maj. Frakt added, "This is utter nonsense. She is not a judge and is specifically authorized to discuss matters with either party."

Mohamed Jawad and the Fog of 'War Crimes'

Moreover, Hartmann's departure has clearly done nothing to stem Crawford's enthusiasm for referring charges without paying any heed to arguments made by the defense, and in this she seems to have the full support of Hartmann's replacement, Col. Mike Chapman. Maj. Frakt explained that on September 22 (Chapman's first day as legal adviser) he issued a new pretrial advice to Crawford – "chock full of misleading characterizations of the facts and misstatements of the law," as Maj. Frakt put it – in response to his submissions, in which he stated that there was "no merit to the defense arguments." The following day, as Maj. Frakt proceeded to explain, "Crawford ‘ratified' her referral decision and confirmed that she wanted the case to go forward." However, while this appears to be another example of Crawford's predetermined inflexibility, which leads me to if anything could persuade her not to go forward with the cases before her, Jawad, at least, appears to have some support from the judge in his case.

On September 24, Col. Henley issued three rulings on motions to dismiss that were filed in May and June, and Maj. Frakt explained that, although he "declined to dismiss the charges," he "came very close." Essentially, as Maj. Frakt described it, Col. Henley "ruled that the government had offered no persuasive authority for their legal position on the meaning of the elements of ‘murder in violation of the law of war'" (the offense Jawad is accused of committing, even though no one died in the grenade attack). According to the government, Jawad's status as an "unlawful combatant" or "unprivileged belligerent" (variants on the familiar label of "enemy combatant") is all that is required to prove that his acts were "in violation of the law of war."

This is actually nonsense, and Maj. Frakt proceeded to explain that a violation of the law of war should actually mean that there was "something in the nature of the act allegedly committed by Jawad that violated the law of war (e.g. an illegal weapon was used, or protected persons were targeted)." He added, "Because Jawad is accused of using a lawful weapon to attack lawful targets (uniformed enemy soldiers) there is no independent violation of the law of war."

Col. Henley seemed to agree, but he "declined to dismiss the case because he said he did not know what evidence the government had and would give them a chance to prove their case," although he added that if the prosecution "didn't have any facts that would tend to prove a violation of the law of war, then they had an independent ethical obligation to go to the Convening Authority and ask her to dismiss the charges."

He then ordered the government to provide a "bill of particulars" (a statement of facts detailing how the prosecution would prove the elements of the offense), but as Maj. Frakt described it, this document "simply rehashed the government's prior stance that the violation of the law of war consisted of not being a lawful combatant and wearing civilian clothes to blend in with the local population." Pointing out the absurdity of this position, he explained, "The government states he is an unlawful combatant because he was not a member of a regular army in military uniform, but then claims his violation of the law of war was wearing civilian clothes." He added, "I have noted several times that Jawad was part of the local population. He is an Afghan citizen."

Quite how this absurd trial will pan out remains to be seen, but if there is hope for Mohamed Jawad, the same cannot be said for the Commissions in general, which are suffering from inbuilt problems that cannot be remedied by the dismissal of either the legal adviser to the Convening Authority or the Convening Authority herself – although the accumulating evidence certainly suggests that, like Brig. Gen. Hartmann, Susan Crawford should be removed from her post.

Enshrining Political Manipulation

Several legal scholars have been noting these problems for some time. In August, for example, Professor Gregory S. McNeal, a former academic consultant to the Commissions' chief prosecutor, wrote that the structure and rules for the Commissions, as crafted by the Department of Defense, "allowed for political manipulation of nearly all aspects of the trials."

One of the major flaws identified by McNeal was the nature of the Convening Authority's role. In the courts-martial system, from which the Commissions are vaguely derived, the Convening Authority is a military commander, who is presumed to be capable of "unbiased and apolitical decision-making." In the Military Commissions Act, however, it is stated that Military Commissions "may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose"; in other words, that civilians, like Susan Crawford, can be brought in to deliberately exert the "undue command influence" with which both she, and her legal adviser, have repeatedly been identified.

In my opinion, this is a crucial distinction, deliberately tailored by the administration to allow a puppet of the executive to fulfill her master's commands, and it explains, I think, why there will be no justice at Guantánamo until the whole system is dismantled and the trials are moved to the US mainland, where judges are free to throw out risible and/or rigged charges like those against Mohamed Jawad, and to grapple, independently, with the problems they will undoubtedly face in prosecuting the handful of genuinely dangerous individuals at Guantánamo in a court that can claim legitimacy.

Until this time comes, I am thankful to Maj. Frakt for sharing his insights with me, and I will continue to expose the "undue command influence" that poisons Dick Cheney and David Addington's ill-conceived, quasi-legal system of show trials.