Andy Worthington, author of The
Guantánamo Files, looks at recent disturbing developments
in the Military Commission trial system at Guantánamo, and traces a chain
of command that runs from the Commissions' supposedly impartial "Convening
Authority" all the way to the Office of the Vice President.
A Prosecutor Resigns
On September 24, Col. Lawrence Morris, the chief
prosecutor of Guantánamo's Military Commission trial system, announced
that Lt. Col. Darrel Vandeveld, the prosecutor in the case of Mohamed
Jawad (an Afghan – and a teenager at the time of his capture – who is
accused of throwing a grenade at a jeep containing two US soldiers and an
Afghan translator), had asked to quit his assignment before his one-year contract
Although Col. Morris attempted to explain that Lt. Col. Vandeveld was leaving
"for personal reasons," the real reasons were spelled out in a statement
issued by Vandeveld (PDF),
in which he expressed his frustration and disappointment that "potentially
exculpatory evidence" had "not been provided" to Jawad's defense
"My ethical qualms about continuing to serve as a prosecutor relate
primarily to the procedures for affording defense counsel discovery. I am
highly concerned, to the point that I believe I can no longer serve as a
prosecutor at the Commissions, about the slipshod, uncertain "procedure"
for affording defense counsel discovery. One would have thought … six years
since the Commissions had their fitful start, that a functioning law office
would have been set up and procedures and policies not only put into effect,
"Instead, what I found, and what I still find, is that discovery
in even the simplest of cases is incomplete or unreliable. To take the Jawad
case as only one example – a case where no intelligence agency had any
significant involvement – I discovered just yesterday that something as
basic as agents' interrogation notes had been entered into a database, to
which I do not have personal access … These and other examples too legion
to list are not only appalling, they deprive the accused of basic due process
and subject the well-intentioned prosecutor to claims of ethical misconduct."
Vandeveld also stated, "My view of the case has evolved over time,"
and proceeded to explain how he had come to suspect that Jawad, who has always
denied throwing the grenade, was duped into joining a militant group, and was
drugged before the attack. Michael Berrigan, the Commissions' deputy chief defense
counsel, added that prosecutors also knew that the Afghan Interior Ministry
said that two other men had confessed to the same crime, although Vandeveld
did not mention this in his statement.
Vandeveld added, "Based on my view of the case, I have advocated a pre-trial
agreement under which Mr. Jawad would serve some relatively brief additional
period in custody while he receives rehabilitation services and skills that
will allow him to reintegrate into either Afghan or Pakistani society."
This, however, was turned down by his commanding officers. He continued: "One
of my motivations in seeking a reasonable resolution of the case is that, as
a juvenile at the time of capture, Jawad should have been segregated from the
adult detainees, and some serious attempt made to rehabilitate him. I am bothered
by the fact that this was not done."
On October 26, as Jawad's defense lawyer, Maj. David Frakt, sought to have
the case dismissed due to "gross government misconduct," Lt. Col.
Vandeveld testified for the defense by video link from Washington D.C., explaining,
as the Associated
Press described it, that "the embattled military tribunal system may
not be capable of delivering justice for Jawad or the victims." "They
are not served by having someone who may be innocent be convicted of the crime,"
Vandeveld said, reiterating that, even after six years, "it is impossible
for anyone in good conscience to stand up and say he or she is provided all
the discovery in a case."
Explaining more of his reasons for quitting his job, Vandeveld told the court
that he "reached a turning point" when he chanced upon "key evidence
among material scattered throughout the prosecutors' office." In another
case file, he said he "saw for the first time a statement Jawad made to
a military investigator probing prisoner abuse in Afghanistan," and described
it as "an episode that helped convert him from a ‘true believer to someone
who felt truly deceived.'" He added that he had "even developed sympathy"
for Jawad. "My views changed," he said. "I am a father, and it's
not an exercise in self-pity to ask oneself how you would feel if your own son
was treated in this fashion."
Lt. Col. Vandeveld's departure – and his reasons for leaving – are another
serious blow to the credibility of the Military Commissions, which were established
Cheney and his close advisers in November 2001. In June 2006, they were
ruled illegal by the US Supreme Court, and although they were revived by Congress
later that year in the much-criticized Military Commissions Act, they have never
escaped accusations that they are a parody of justice, designed to secure convictions
at all costs. Even so, Lt. Col. Vandevelt's profound criticisms of a system
that imprisons juveniles instead of rehabilitating them, and that suppresses
evidence relevant to the defense, is just part of a much darker narrative that
has been unfolding for the last 18 months.
The Role of Brig. Gen. Hartmann
From this perspective, an even more significant
event was the Pentagon's announcement,
on September 19, that Brig. Gen. Thomas Hartmann had been removed from his post
as legal adviser to the Convening Authority overseeing the Commission process,
which, as the Washington
Post recently explained, is "a Pentagon office that 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
Hartmann, a reservist whose civilian job is chief counsel to the Connecticut-based
Mxenergy Holdings Inc., became the legal adviser to the Convening Authority
in July 2007, and was also required
to "exercise a neutral role." According to the rules set up for the
Commissions, he was "supposed to provide impartial advice" to the
Convening Authority (retired judge Susan Crawford), and was also supposed 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, complaints arose almost as soon as Hartmann was appointed. Just two
months after he took the job, the Wall Street Journal revealed that Col.
Morris Davis, the Commissions' chief prosecutor, had filed a formal complaint
alleging that he had "overstepped his mandate by interfering directly in
cases." In a letter, Davis suggested that both he and Hartmann should resign
"for the good of the process," adding, "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 who spoke to the Journal's Jess Bravin made it clear that
Col. Davis was not alone in his complaints. A lawyer close to the process explained
that, although 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 of the prosecutors regarded him as "‘micromanaging'
cases he doesn't fully understand."
Brig. Gen. Hartmann escaped unscathed from Col. Davis' accusations – and in
fact it was Davis, alone, who resigned on October 4 – and he also escaped censure
the following month, when, during a pretrial hearing for Omar
Khadr (the Canadian who was just 15 years old when he was captured in July
2002), Khadr's defense team announced that they had just been informed of the
existence of an eyewitness to the main crime for which Omar was being charged
– the death of a US soldier in a grenade attack – whose testimony could exonerate
their client. This was extraordinary enough, in and of itself, but what made
the story particularly shocking was prosecutor Jeff Groharing's admission that,
as the Los
Angeles Times described it, "he had been prohibited from talking
about the case" by Brig. Gen. Hartmann.
Hartmann Is Barred from Three Trials
Hartmann's luck finally ran out in May, when,
after Col. Davis reprised his complaints in pretrial hearings for Salim
Hamdan (a driver for Osama bin Laden whose trial took place this summer),
the judge in Hamdan's case, Capt. Keith Allred, disqualified him from playing
any role in Hamdan's trial, ruling
that he was "too closely allied with the prosecution," and that "national
attention focused on this dispute has seriously called into question the legal
adviser's ability to continue to perform his duties in a neutral and objective
manner." Allred added, "Telling the chief prosecutor (and other prosecutors)
that certain types of cases would be tried and that others would not be tried,
because of political factors such as whether they would capture the imagination
of the American people, be sexy, or involve blood on the hands of the accused,
suggests that factors other than those pertaining to the merits of the case
were at play."
In August, Hartmann was excluded
from Mohamed Jawad's trial for the same reasons. Jawad's lawyer, Maj. David
Frakt, told the judge, Col. Stephen Henley, that Hartmann "usurped the
role of a prosecutor – rather than acting dispassionately – and pushed to
get Jawad charged because the case involved battlefield bloodshed." Frakt
also pointed out that Hartmann had "failed to turn over defense documents"
to Susan Crawford, even though these documents "outlined mitigating circumstances
that might have altered her decision to endorse the charges." He also secured
testimony from an unlikely ally, Brig. Gen. Zanetti, the deputy commander of
Guantánamo's Joint Task Force, who declared that Hartmann's demeanor
was "abusive, bullying and unprofessional … pretty much across the board,"
and described his approach to the Commissions as, "Spray and pray. Charge
everybody. Let's go. Speed, speed, speed."
Three weeks ago, Hartman was barred for a third time, this time from any post-trial
review in Omar Khadr's case. The judge, Col. Patrick Parrish, had refused a
request from Khadr's lawyers to disqualify Hartmann from involvement in Khadr's
trial, but he barred Hartmann from reviewing it, in the case of a conviction,
for the same reasons as those described above.
To add to the criticism, Lt. Col. Vandeveld also tore into Hartmann as he announced
his departure from the Commissions. The Los
Angeles Times spoke to a Pentagon official, who explained that "Vandeveld
had defended Hartmann against the undue-influence allegations in the Jawad case
in recent weeks but lost," and Hartmann "had retaliated against him,
causing the prosecutor emotional distress and prompting him to quit and go public
with his concerns."
News of Brig. Gen. Hartmann's departure was telegraphed three weeks ago, in
the wake of the Khadr ruling, when Charles "Cully" Stimson, a former
deputy assistant secretary for detainee affairs, stepped forward to suggest
that, under a "three strikes and you're out" philosophy, Hartmann
should resign. Stimson 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
Hartmann's Extraordinary Promotion
Instead of losing his job, however, Brig. Gen.
Hartmann was actually promoted to a new post, as Director of Operations, Planning
and Development for the Commissions, responsible, as the Associated
Press put it, for "such activities as the hiring of dozens of lawyers
and paralegals and ensuring there are adequate resources for the massive legal
undertaking." His deputy, retired Army Col. Michael Chapman, took over
as legal adviser.
In the Miami
Herald, Carol Rosenberg shrewdly realized that the Pentagon had hoped
to bury the news of Hartmann's reassignment. Explaining that the announcement
"ended weeks of speculation on the fate of Hartmann with little fanfare,"
she noted that it was issued "on Friday afternoon, a time considered in
Washington circles to be when the Defense Department disposes of uncomfortable
business." This was certainly true, but it soon became clear that what
was particularly "uncomfortable" about the "business" was
not Hartmann's removal as legal adviser, but the significance of his effective
promotion to a new job.
Although the Associated Press reported that the new job "takes Hartmann
away from direct supervision of the prosecution," other observers were
not convinced. The Washington
Post reported that Human Rights Watch had stated that "instead
of trying to clean up house, the Pentagon has now moved a man accused of bullying
prosecutors to bring cases to trial and dismissing concerns about evidence being
tainted by torture into a position coordinating all matters relating to the
In addition, Col. Davis compared the reassignment to that of Russia's former
Premier and his newly promoted protégé, saying, "Elevating
his deputy and leaving him in the process, I'm afraid, will be like the Vladimir
Putin-Dmitry Medvedev relationship where there's some real doubt over who pulls
the strings." Speaking to the AP, Davis was even blunter, comparing Hartmann
to a "cancer" that had infected the entire Commission process. "The
only way to ensure cancer can do no harm," he said, "is to get it
out of the body."
Noticeably, Hartmann himself confirmed that his reassignment was anything but
a punishment. "I feel like it's an elevation, a promotion, because it recognizes
... the exponential growth of the commissions," the AP reported him as
saying, and in the Washington Post he claimed that, although "the
recent court rulings forced him and others at the Pentagon to think about his
role," the reason for his new assignment was that "he and his superiors
thought that the ‘best way to run the system was to take this more senior leadership
Hartmann continued crowing in comments to the Miami Herald. Likening
his new job to that of a "chief executive officer at a 250-staff corporate
headquarters," and adding that he "had no fixed budget," he declared
that his biggest challenge was "to keep the process moving, really intensely."
He added, "Everybody needs to start seeing more trials. I want those courtrooms
to be as filled up as they can possibly be – six days a week."
While this is nothing short of despicable, given the condemnation of Hartmann's
pro-prosecution bias by three government-appointed judges, what no one has yet
done in the last two weeks is to look behind the scenes to see what Hartmann's
reassignment reveals about the whole command structure of the Military Commissions.
And when this is looked at in detail, Hartmann appears, shockingly, to be little
more than a puppet (albeit a willing and hardworking one), whose reassignment
is a reward to prevent him from being a sacrifice, which was bestowed upon him
by his masters – in the Pentagon, and in the Office of the Vice President –
who have no interest in establishing a fair or just process at Guantánamo.
Who's Pulling the Strings?
To understand this story we need to look back,
beyond Hartmann's appointment, to February 2007, when Susan Crawford was appointed
as the Commissions' Convening Authority. In a revelatory article for Harper's
Magazine this February, Scott Horton examined the source of the "cancer"
referred to by Col. Davis, and traced it back to a plea bargain struck, for
political reasons, in the first trial by Military Commission to go ahead: that
of the Australian David Hicks, who admitted to providing material support for
terrorism in March 2007, in exchange for a nine-month sentence to be served
back in Australia.
What happened, it was later revealed,
was that Australian Premier John Howard, who was seeking reelection, had been
struggling in the polls, partly because the previously ignored plight of Hicks
had become a political hot potato. Anxious to help one of his few stout allies
in the "War on Terror," Vice President Dick Cheney paid Howard a quick
visit, and on returning home appointed a new Convening Authority for the Military
Commissions, retired judge Susan J. Crawford, who, as Horton noted, was "a
Cheney protégé," and was, moreover, "particularly close
to Cheney's chief of staff David Addington," the prime architect not only
of the Commissions, but also of the majority of the administration's post-9/11
flight from the Geneva Conventions and the UN Convention Against Torture.
With Crawford in place – and assistance from William J. Haynes II, the Pentagon's
General Counsel, who was "known for his tight connections with the Vice
President's Office" – a plea bargain was negotiated with Hicks' lawyers,
and the sidelining of Col. Davis began in earnest.
As Hicks' trial got underway, Col. Davis "confidently delivered a searing
opening promising to make Hicks out as a bloodthirsty figure who had betrayed
his homeland and turned to a path of ‘Islamic' violence," as Scott Horton
described it. He was both humiliated and dismayed when the plea bargain was
revealed, as neither he, nor any of the other prosecutors, had been informed
of the deal cut by Cheney, Addington, Crawford and Haynes.
This, of course, explains why, although Col. Davis maintained a dignified silence
at the time, his frayed patience began to unravel in July, when Brig. Gen. Hartman
assumed his new role as Susan Crawford's legal adviser. Hartmann took charge
of the prosecution office while Davis was away, recovering from surgery, and
he proceeded to take advantage of Davis' absence to shake things up as he –
and his masters – saw fit.
The most significant date, however, is October 3, the day before Col. Davis'
resignation, as it was then, as Scott Horton described it, that Haynes "crafted
and secured Deputy Secretary of Defense Gordon England's signature on two documents,"
which sealed a significant change in the command structure of the Commissions.
established that Hartmann would report to Paul Ney, the Defense Department's
Deputy General Counsel (Legal Counsel), who in turn reported to Haynes, and
placed Col. Davis in the chain of command under Hartmann. This second memorandum,
as Horton explained, "was particularly necessary as an after-the-fact adjustment
to cover Haynes's manipulation of the Hicks case, establishing a chain-of-command
justification for his intervention to direct the plea bargain resolution of
The Former Chief Prosecutor Turns
This, then, was the specific reason why, in a
blistering op-ed in the Los
Angeles Times two months after his resignation, Col. Davis stated, "I
was the chief prosecutor for the military commissions at Guantánamo Bay,
Cuba, until Oct. 4, the day I concluded that full, fair and open trials were
not possible under the current system. I resigned on that day because I felt
that the system had become deeply politicized and that I could no longer do
my job effectively or responsibly."
Although Col. Davis was critical of Brig. Gen. Hartmann, he explained that
the particular trigger for his decision was the memo described above, informing
him that he had been placed in a chain of command under Haynes. Stating that
he resigned "a few hours after" being informed of this, he mentioned
that "Haynes was a controversial nominee for a lifetime appointment to
the US 4th Circuit Court of Appeals, but his nomination died in January 2007,
in part because of his role in authorizing the use of the aggressive interrogation
techniques some call torture." He added, "I had instructed the prosecutors
in September 2005 [shortly after taking the job] that we would not offer any
evidence derived by waterboarding,
one of the aggressive interrogation techniques the administration has sanctioned."
Haynes, of course, was not only involved in the approval of "enhanced
interrogation techniques" for use at Guantánamo; he also helped
develop the concept of holding prisoners as "enemy combatants" without
charge or trial, and without the protections of the Geneva Conventions, and
played a part in the process that led to holding an American citizen, Jose
Padilla, as an "enemy combatant" on the US mainland.
Col. Davis was also critical of the role played not only by Hartmann and Haynes,
but also by Susan Crawford, and he was dismayed by what he described as Hartmann
and Crawford's desire to conduct trials "behind closed doors." "Transparency
is critical," he wrote, adding that it was "absolutely critical to
the legitimacy of the military commissions that they be conducted in an atmosphere
of honesty and impartiality," and pointing out that "even the most
perfect trial in history will be viewed with skepticism if it is conducted behind
Davis also directed a specific attack at Susan Crawford, explaining that "the
political appointee known as the ‘convening authority' – a title with no counterpart
in civilian courts – was not living up to that obligation." As he described
it, 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 (which began while I was on medical leave), drafting charges against
those who were accused and assigning prosecutors to cases." He continued:
"Intermingling convening authority and prosecutor roles perpetuates the
perception of a rigged process stacked against the accused."
In this first, considered outburst, Col. Davis laid out, with admirable clarity,
a contaminated chain of command – indifferent to the use of torture by US forces,
dedicated to using the poisoned fruit of that torture in trials at Guantánamo,
and committed, essentially, to conducting "a rigged process stacked against
the accused" – that led from Hartmann to Crawford and Haynes, and from
there to Dick Cheney and David Addington.
And if further proof were needed that Haynes was
the link connecting the supposedly impartial Convening Authority and her legal
adviser from the ferociously biased Vice President and his chief of staff, this
came in February this year, when Col. Davis told Ross Tuttle of the Nation
about a conversation he had with Haynes in August 2005.
"[Haynes] said these trials will be the Nuremberg of our time,"
recalled Davis, referring to the Nazi tribunals in 1945, considered the
model of procedural rights in the prosecution of war crimes. In response,
Davis said he noted that at Nuremberg there had been some acquittals, which
had lent great credibility to the proceedings.
"I said to him that if we come up short and there are some acquittals
in our cases, it will at least validate the process," Davis continued.
"At which point, [Haynes's] eyes got wide and he said, ‘Wait a minute,
we can't have acquittals. If we've been holding these guys for so long,
how can we explain letting them get off? We can't have acquittals. We've
got to have convictions.'"
Although Haynes announced his sudden retirement shortly after his conversation
with Col. Davis was revealed, his place as the intermediary between the Office
of Military Commissions and the Vice President's Office has been seamlessly
filled by the Pentagon's Acting General Counsel, Daniel Dell'Orto.
A "career official at the Pentagon," as Philippe Sands described
him in Vanity
Fair, Dell'Orto had accompanied Haynes and then-White House Counsel
Alberto Gonzales when they presented the media with a carefully calibrated justification
of the administration's actions in the wake of the Abu Ghraib scandal in June
2004, and in July 2006, after the Supreme Court had struck down the Commissions'
first incarnation as illegal (in Hamdan v. Rumsfeld), he told the Senate
Committee on the Judiciary that the Commissions were "an indispensable
tool for the dispensation of justice in the chaotic and irregular circumstances
of armed conflict." Ignoring the fact that prisoners seized in wartime
should be granted the protections of the Geneva Conventions, he also claimed,
"It would greatly impede intelligence collection essential to the war effort
to tell detainees before interrogation that they are entitled to legal counsel,
that they need not answer questions, and that their answers may be used against
them in a criminal trial."
The Dark Heart
What I find particularly fascinating, however,
is the way in which Susan Crawford has, to date, been shielded from allegations
of impropriety by the activities of Brig. Gen. Hartmann. I'm grateful to Scott
Horton not only for demolishing notions of Crawford's independence by pointing
out her close ties with Dick Cheney and David Addington, but also for including
a specific anecdote that demonstrates the strength of her relationship with
the Vice President's chief of staff. "At an event held last year to mark
Crawford's retirement as a military appeals judge," Horton wrote, "she
went out of her way to note the presence of and thank just one person, her friend
In addition, one reporter, William Glaberson, raised pertinent questions about
Crawford's role after Salim Hamdan's trial this summer. "There were unknowns,"
Glaberson wrote in the New
York Times. "A Pentagon official, Susan J. Crawford, has broad
power over the entire tribunal process, including naming the military officers
eligible to hear the case. Her title, convening authority, has no civilian equivalent.
Her decisions to grant or deny financing for items like the defense's expert
witness fees or defense lawyers' transportation were not explained during the
trial. She has never granted an interview to a reporter."
Crawford's mentor, David Addington, never grants interviews either, but Brig.
Gen. Hartmann's cynical promotion, and Lt. Col. Vandeveld's resignation, will
hopefully bring the crucial role in the Commission process that is played by
Susan Crawford, David Addington and Dick Cheney into sharper relief. This is
of critical importance, as the deliberate suppression of evidence that is essential
to the defense appears to be endemic.
In Mohamed Jawad's case, this has been highlighted twice – first in August,
when Col. Henley not only excluded Hartmann from involvement in Jawad's case,
but also ordered "potentially exculpatory information" to be sent
to Susan Crawford, and last Wednesday by Lt. Col. Vandeveld, who, as the Los
Angeles Times reported, "said military prosecutors routinely withhold
exculpatory evidence from the defense in terrorism cases."
In August, Henley refused to order the charges against Jawad to be dropped
entirely, and, instead, made a request for Crawford to review the charges, indicating
that it was up to her to decide whether to "drop or reduce them,"
but I believe that this analysis of the Commission's chain of command, and the
exposure of Crawford's spectral impartiality, casts serious doubt on the trust
that Henley placed in Crawford, and indicates that, seven weeks after Henley
made his ruling, the Convening Authority either has not received the exculpatory
information, or has chosen to ignore it.
We end, therefore, where we began, with Lt. Col. Vandeveld, and his courageous
refusal to play out his role in a rigged and one-sided process that would imprison
a young Afghan for life by suppressing inconvenient evidence – such as the
fact that he may not have actually been responsible for the alleged crime of
which he is accused. What happens next is unknown, but it's certain that lawyers
for other prisoners facing trial by Military Commission – Omar Khadr, for example,
and British resident Binyam Mohamed, whose lawyers recently took his case to
the British High Court in an attempt to secure access to exculpatory evidence
– will be doing their damnedest to ensure that they pursue those responsible
for rigging the system all the way up the chain of command.