As covered in prior posts, Col. Morris Davis, the former chief prosecutor at Guantanamo, resigned his post alleging, among other things, that military officers, including Brigadier General Thomas Hartmann, were exercising undue influence over the conduct of the trials of detainees and compromising the impartiality and fairness of the military commissions. Now it appears that at least one military judge concurs with Col. Davis' assessment. As the NYT reports:
The judge, Capt. Keith J. Allred of the Navy, directed that Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, have no further role in the first prosecution, scheduled for trial this month.
General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantánamo military prosecutor, Col. Morris D. Davis of the Air Force.
Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture.
“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,” the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantánamo judges are not typically released publicly until days after being handed down. . . .
Ruling on a defense lawyers’ request that said General Hartmann had exerted unlawful influence over the prosecution, Judge Allred said that public concern about the fairness of the cases was “deeply disturbing” and that he could not find that the general “retains the required independence from the prosecution.”
Pentagon officials could ask the judge to reconsider, could appeal to a special military appeals court created to hear Guantánamo cases or could replace General Hartmann.
General Hartmann has denied Colonel Davis’s assertions and said the commission system would “follow the rule of law.” He has also said he has pressed prosecutors and others involved in the tribunals to move the cases more quickly. . . .
Judge Allred’s ruling followed a hearing in Guantánamo on April 28 at which Colonel Davis said General Hartmann pressured him in deciding what cases to prosecute and what evidence to use. The judge called the hearing after lawyers for a detainee, Salim Hamdan, said his charges were unlawfully influenced.
Related Posts (on one page):
- Brigadier General Hartmann Removed from Role in Military Tribunals:
- Col. Davis for the Defense:
- A Prosecutor for the Defense:
Seriously - if we're going to call it a 'war' then these guys have to be treated as POWs. Anything else results in grotesqueries.
If they were caught fighting out of uniform, shouldn't they be treated as spies or saboteurs? And what do governments do with foreign spies in time of war...?
Peace,
Ben
Anyone who's able to be 'neutral' between the United States government and fanatic terrorist butchers is, by that fact, incompetent to preside over any terrorists' trials. The fall of Hartmann is going to cost American lives. Bet on it.
Let's also remember that a large fraction of the Guantanamo detainees turn out not to have been captured in battle at all. Many of them were sold to the US by Afghan warlords or bounty hunters.
Nope... this game is less fun than I imagined, Frank. Find someone else to play with.
It's possible they could want what's best and be horribly wrong about the results of their actions.
It's possible that what they consider best is a horror.
Other than motivation, which is easy to lie about, what's the difference?
"a battle initiated by the US when it attacked a Taliban
stronghold."
Is that the same as an Afgan military base? The Taliban have no official standing and are terrorists in Afganistan. What part of that don't you understand? Was he deliverying the heavy weapons in his vehicle to the Afgan Girl Scouts?
You ignorant twit! Of course he was! Afgan girl scouts deliver heavy weapons instead of cookies. He was probably just helping his daughter with sales -- like any good American parent would o.
If they're in the battlefield fighting, then shoot them dead, by all means. But if you choose to take them prisoner instead, then you have to treat them as prisoners of war.
The government has two possible legal and moral ways to treat captive alleged terrorists. Either they are military enemies taken prisoner in a war -- POWs -- or they are civilians arrested as suspects in a crime. In the former case, they have the rights accorded POWs under international convention to which the United States is signatory. In the latter case they have the rights accorded an accused criminal under the Constitution.
There is no legal, constitutional way for the United States government to "disappear" someone. There is no way under United States law for a person to be accorded outlaw status in the classical sense: a person upon whom may be inflicted any outrage without illegality. U.S. law simply does not recognize the notion of a person without rights. The Guantanamo theory -- that there exists any place where the U.S. government exercises power but is not bound by the Constitution -- is pure nonsense.
Actually at the time the Taliban were the Afghan government in July of 2002. This guy wasn't captured last week you know.
Elim:
my god, to think that, in a time of war with an enemy that wants to destroy us, that we would want to have any member of our military behave in a such a manner is scary.
I'll tell you what's scary: hysterical paranoia from a fellow citizen.
A battlefield prisoner is not necessarily either a P.O.W. or a civilian. Unlawful combatants may have some rights under the law of war, but those rights are very limited. viz:
Ex parte Quirin, 317 U.S. 1, 30 (1942). Contra Benjamin Davis, it is not a "kangaroo court" to limit the trial to ascertaining (1) was this person engaged in hostilities, and (2) did he comply with the law of war, e.g., via distinctive markings and responsible command, in doing so? Nor is it a "kangaroo court" to use more liberal rules of evidence in making that determination.
The P.O.W. regime under the law of war has two major purposes: (i) minimizing combat by encouraging surrender, and (ii) protecting civilians by keeping keeping them segregated from combatants. If unlawful combatants are not penalized for hiding amongst the civilian population, then there is no incentive for them not to do so, and also no reason for the opposing forces to refrain from attacking the civilian population. For those who question the legality of the latter, I remind you that protected persons and places lose their protected status when used in furtherance of hostilities.
We're the ones who called it a war, and we called it one knowing our enemy doesn't wear uniforms. That makes them 'soldiers' by our choice.
As far as Guantanamo goes, the notion that the US government can run away and hide from the Constitution is unworthy of further comment.
Seriously not trying to be snarky or snide, but can you provide a link? I would like to read about the case(s) in question.
Best,
Ben
Military Judges have been pretty vigilant in dealing with this problem, and generally have no problem spotting senior officers who have less sensitivity to the problem that they should.
What I found on the ACLU website is specifically not what I am looking for. Oren made a specific factual statement regarding the process; I asked for a link to a specific example. Policy arguments that CSRTs and military commissions are "not what America stands for" and unsubstantiated allegations that they are "illegal" isn't sufficient.
Link, link (pdf warning)
There is plenty of evidence that the government does not consider its own CSRT 'acquittals' to be binding.
Oh, I forgot, the whole case arose from the vile falsehood of a reporter from Time. That makes it OK, I suppose.
The US has not adopted Protocol 1 - Protocol Additional to the Geneva Conventions of 12 August 1949. That means that non-US citizens captured in battle who do not fall under the Geneva Conventions that we have adopted can be shot out of hand.
Likewise since those of us in the US who are defending our homes (or office buildings) against enemy attack are not bound by the Geneva conventions at all, we can kill any enemies that we happen to ecounter. Legal as church on a Sunday. And if we do, then if all those overseas wimps who have signed Protocol 1 send in the black helcopters they can't kill us but have to pay us SF100/month (now about $100/month), give us 3 hots and a cot, and return us to our homes ASAP. Neat, huh?
So why bother even with show trials, let alone a trial that runs some actual risk of aquittal?
The links you provided in your 7:38PM post don't really shed any light on the subject. I recall reading the NYT article previously; the only thing it indicates is that a single-digit number of prisoners have been subjected to repeated hearings. I didn't see anything at all in the RMO Amicus Brief. I would also point out that the American restriction on double-jeopardy is somewhat unique. Even "progressive" jurisdictions such as The Netherlands and the International Criminal Tribunal for the former Yugoslavia permit prosecutors to appeal based on the weight of the evidence for acquittal. It hardly seems fair to criticize the CSRTs for engaging in - on what appears to be a very limited basis - the same procedures that other war crimes tribunals use, unless one is asserting that CSRTs are subject to full constitutional safeguards.
I do appreciate the tone of both our discussion and this thread in general. I've noticed that Gitmo threads tend to turn into shouting matches very quickly; thank you for taking the time to engage in thoughtful discussion.
I'm sorry to disappoint you, but you're not the first to think of that. And I'm sorry to shock you, but you may be the first to think of it who wasn't serious.
If we err on the side of caution, then so be it. We can apologize after we win. If we err on the side of PC and lose, does anything else matter?
I think not.
See my website for further insights.
I do have a feeling that the legal eagles in the military think they are a world apart from everyone else. Just like the commissars in the Russian military, we now have our lawyers. Untrained in military tactics but well trained in the ideology of lawfare, ever ready to counteract the platoon commander on the battlefield. How many will die before the lawyers are placed back in their box.
Are we a nation of laws or men?
Are we a nation of laws or men?[/quote]
It appears we are a nation of cowards. Rule of law used to be considered an American strength.
Now? Now it's tossed aside because of unreasoning fear, or in the pursuit of political power.
Those arguing for conflating criminals with illegal combatants better be careful. The situation is so untenable that it could lead to erosion of rights we accord criminal defendants. The issue is not simple, and there may be troubling situations when it is difficult to categorize someone as a criminal as opposed to the sort of illegal combatant we encounter in the Middle East. But we must undertake the task.
See, it's this pants-wetting attitude that leads to our worst deeds.
"An enemy that wants to destroy us." I'm sure they *want* to do that, sure. 'Cept they can't.
Wow. So now even military service isn't beyond parsing for fifth columns and America haters.
Cept, after they are let go from Guantanamo (due to the good graces of a pro bono US civilian where the law firm has lots of money from Arab sources) they can blow up themselves and a lot of civlians (so much for the GC protecting civilians from harm).
Oh, did I mention the "they were Jews so it allows by Allah"defence does not work because the ratbag killed a bunch of Arabs.
OR
We could not be stupid about this and hold them as prisoners of war.
We accord them basic rights and we can keep them interned as long as the war is going on. You see how this works?
We gave Nazi Prisoners all sorts of rights under this mantle and It didn't seem to hurt us any there.
Are you serious? We gave the Soviets and the French full votes to convict and execute at Nuremberg. In what way was that fair?
military lawyers are officers without the training or ability to command who have not attended any meaningful officer selection or training.
They are taken directly to a shortened training course for how pay and assignments work, and from there go to a law school campus for military law training. From there they go straight to things like contract review, environmental law work, or taking turns convicting or making a stab at defending a private or seaman who had some drugs.
They have no loyalty to the military because it was never instilled in them, and they don't care about letting terrorist illegal combatants go free because they will only kill low ranking troops and the military lawyers only exposure to those troops is putting them away or half heartedly defending them.
Note: Marine lawyer officers attend full OCS and attend the full Basic School (6 months of intro level officer skills and basic infantry officer skills). They then have the legal and actual ability during their careers to command.
Granted, that was during the Clinton years and over 12 years ago...
To reiterate, nothing qualifies you to sling blanket accusations of treasonous disloyalty and total disregard for the lives of soldiers.
I hope you're a better person when you're not engaged in anonymous libel.
What percentage of our armed forces fire guns? Are all the rest less loyal, less deserving of gratitude and respect? If two men enlist, and one gets assigned to a fighting unit, and the other to transportation or supply, does the first one win a presumption of greater loyalty? What if #2 goes to radar command, where he helps target air strikes, but is still essentially out of harm's way? Where do you draw the line, and who gets to decide?
These distinctions are all bullshit. When someone enlists to do military service, he deserves the same presumption of loyalty and sacrifice as any other enlistee, regardless of his job. If a JAG lawyer is told to defend a Guantanamo detainee, defending that detainee to the best of his ability is the most loyal thing he can do for the country and the service. Unless, of course, you think everyone in the military should start making his own assessment of which jobs help the country, and which ones hurt, and act accordingly. That would be a great recipe for command discipline. That wouldn't be an army. It would be an anarchist militia.
If you don't like what military lawyers do, right your congressman or vote him out of office. But don't blame the soldier for doing his best at the job he's given.
rightwrite your congressmanIn Quirin, the defendants had lawyers.
Take a look at Salim Hamdan's indictment, and see how much of the conduct alleged pre-dates, and is unrelated to, September 11.
Our allies in the Afghan civil war -- in which we intervened for what I think justifiable reasons -- didn't wear uniforms either.
A whole lot of the people in Gitmo, including people subject to commission trial, were not apprehended on anything that can remotely be called a battlefield. What may or may not be acceptable given the chaos of a battlefield doesn't have anything to do with an arrest of a sleeping man in an apartment in Pakistan. I think KSM should certainly be subject to trial. But people who want to talk about battlefields show themselves either ignorant or apathetic about the facts.
The US government, though, has taken the position that the entire world is a battlefield. (Inter alia, in Mr. Clement's response to the Fourth Circuit in Padilla, iirc). While there might be some rhetorical justification for this, you'd have to drop the notion that a battlefield is chaotic, or that looser standards of evidence etc ought to apply.
AnonLawStudent should try to find an 'acquittal' at a CSRT that did not result in a do-over. And the issue isn't really about double jeopardy: it's an indication that the thing is being conducted in bad faith. The Kurnaz CSRT is another fine example -- read Judge Green's opinion from January 2005 on that and other follies from the CSRTs.
The Administration's supposed substitute for habeas, DTA review, is completely bogged down, because the government refuses to comply with the court's discovery orders. It has instead petitioned for cert, and taken the position that if cert is denied, or the Supreme Court affirms, it would rather vacate all CSRT decisions and start over than comply.
Try them. Care to cite anything at all for the contrary?
The UCMJ puts it like this: Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the Unites States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death.
That's the current version, but you can go back to Article 28 of the 1775 Article of War and you'll find the same thing.
Somehow, between the bedwetting and the bloodthirsty, a seriously wrong idea has sprung up that we suspend the rule of law as to some persons at some points. Nope.
Obviously, that assumes defending alleged terrorists works against this country. And if you believe that part of what makes this country worth fighting for is the rule of law, then defending alleged terrorists, guilty and innocent, is anything but "working against this country."
On the other hand, you haven't given a hint of how you envision a patriotic JAG officer serving his country. By refusing to do his job? How does refusing orders, insubordination or dereliction of duty serve the well-being of the armed forces or the country? If your criticisms are valid, how does addressing them at anything but the civilian oversight level serve the order and discipline necessary for effective fighting forces?
Especially when you don't really have battlefield captures by US forces hardly at all. Instead, you have people who for all appearances are civilians being turned over to US forces bound and gagged, black and blue, by someone with a story and his hand out. One pulled off a bus at a checkpoint in Pakistan, another taken off a plane in Gambia, a few more grabbed while walking out of a courthouse where the highest court in their country had pronounced them free to go, there being insufficient evidence to hold them.
I sincerely doubt many US soldiers are losing sleep worrying that some few officers will end up defending some few prisoners -- no trials having taken place over the last six years, and no prisoner having been released as the result of a court order either.