On May 9th, Navy Captain Keith Allred, a military judge at the U.S. prison camp in GuantanamoBay, ruled that Brig. Gen. Thomas Hartmann must remove himself from any involvement in the prosecution of Salim Hamdan, Osama bin Laden’s former body guard and personal driver. The ruling against the Office of Military Commission’s top legal advisor came after another military commission judge, Judge Peter Brownback, heard testimony by Col. Morris Davis, the former chief prosecutor at Guantanamo, that Gen. Hartmann had promoted the politicization of the military tribunal process. Ironically, the order bars Gen. Hartmann, who was previously appointed to provide “neutral, independent” advice to the tribunal, from any further contact with the prosecution in the Hamdan case.
Based largely on testimony from Col. Davis, Captain Allred found that Gen. Hartmann had repeatedly overstepped his authority and engaged in improper conduct. In his 13-page opinion, Captain Allred wrote that Gen. Hartmann told Col. Davis 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.”
Captain Allred also found that Gen. Hartmann compromised his supposedly objective position by “appearing to direct, or attempting to direct” Col. Davis to use tainted evidence that may have been gathered as the result of “torture or coercion.” Contravening his statutory authority, Gen. Hartmann also intended to personally conduct pretrial agreement negotiations without consulting the trial counsel.
Captain Allred concluded that Gen. Hartmann failed to provide “the required independence from the prosecution function to provide fair and objective legal advice to the [court].” As consequence, he removed Gen. Hartmann from the Hamdan case and ordered that a substitute Legal Advisor – excluding any deputies or subordinates to Gen. Hartmann – be appointed for the remainder of the proceedings.
While troubling on their own, Col. Davis’ testimony and Judge Allred’s ruling are only one piece of a much larger maze of political influence and other improper conduct at GuantanamoBay. Shortly after testifying in the Hamdan trial, Col. Davis was denied a service medal routinely awarded to officers who have served in capacities like chief prosecutor because his superiors felt his criticism of the process put “self above service.” Just one week later, Army Col. Peter Brownback, the military judge who had been presiding over the case of Omar Khadr and who had threatened to vacate those proceedings unless Guantanamo officials cooperated in turning required information over to the defense, was removed from his position against his will and without explanation.
These prosecutors and judges are not the only ones to suffer the consequences of standing up for justice at Guantanamo. Lt. Commander Charles Swift, a Navy lawyer who represented Mr. Hamdan in an earlier proceeding that resulted in a landmark victory in the Supreme Court, was told shortly after the Hamdan decision was announced that he would not be promoted. Early in 2007, under the military’s up or out rule, he had to leave the service and his chosen career.
In the fall of 2007, Lt. Col. Colby Vokey, the Marine Corps chief defense lawyer for the western US, announced that he would resign on May 1, 2008. He was originally fired after he called the military legal system at GuantanamoBay "horrific" and a "sham." While his firing was rescinded after pressure from former Marine Corps lawyers, it was not surprising that Colonel Vokey decided on his own that he was no longer welcome in the Marines.
These events only further confirm the Constitution Project’s concerns that politicization and undue external influence continue to plague the military commissions process. In its September 2002 report, Recommendations for the Use of Military Commissions, the Constitution Project’s Liberty and Security Committee warned that the President’s original November 2001 order establishing military commissions created a system that failed to ensure necessary safeguards for “the integrity and impartiality of the commission process.” The Military Commissions Act of 2006 (MCA) failed to cure these problems.
The Constitution Project continues to voice its concerns regarding the shortcomings of the MCA and the military commission process and to urge the restoration of the detainees’ habeas corpus rights that were eliminated by the MCA. By the end of the Supreme Court’s current term, we may know whether that MCA provision is constitutional. If the Court does not restore these habeas rights, we will continue to work to repeal the provision.
The military commissions system itself is a disgrace, but we should all applaud these legal and military professionals who have courageously spoken out about the flaws of this failed system. The attorneys who have served at Guantanamo have provided rare, first-hand evidence that the commissions continue to make a mockery of the American justice system.