Constitutional Law

Pentagon Transfers Senior Official, Further Tainting Military Commissions

by Anthony S. Barkow, a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org).

Guantánamo Bay, September 22, 2008: I arrived in Guantánamo Bay on Saturday night, just as The Washington Post reported that Air Force Brigadier General Thomas W. Hartmann was being removed from his position as the Legal Advisor to the Convening Authority for the military commission proceedings. 

The move followed decisions by military judges in three separate cases barring Gen. Hartmann from further participation in various aspects of the commission proceedings. The judges found Gen. Hartmann had demonstrated a lack of objectivity and a pro-prosecution bias.

Cases in Guantánamo are prosecuted by the Office of the Chief Prosecutor (“OCP”). The Convening Authority (“CA”) is a position that exists generally in military court martial proceedings, but that was not included when Congress established the Guantánamo military commission structure. Instead, the Secretary of Defense created by regulation the CA position to represent the Secretary in the military commission proceedings.

Gen. Hartmann was the CA’s chief legal adviser. The CA and her staff are required to exercise a neutral role in the commissions, overseeing but not dictating the work of prosecutors and allocating resources – for example, appointing prosecutors and defense lawyers and allocating funds to hire experts -- to both the prosecution and defense. 

The CA possesses a hybrid of executive and judicial power, and more: she determines whether charges will be brought after receiving a recommendation from the OCP; she appoints jurors (who adjudicate guilt and innocence and who impose sentence); and, upon conviction, she has the power to approve, reduce, or set aside a sentence. Because the CA possesses these multiple roles, and because of a historical concern over improper influence being imposed in court martial proceedings down the chain of command, improper influence by the CA is prohibited. The CA and her agents cannot unlawfully influence exercises of discretion by the OCP.

Defense lawyers allege that Gen. Hartmann improperly interfered with the OCP’s exercise of prosecutorial discretion by pressing prosecutors to move particular cases to trial quickly and, over their objections, to use evidence obtained from coercive interrogations. They rely heavily on allegations by former Chief Prosecutor Colonel Morris Davis, who resigned in protest after experiencing what he says was a series of improper efforts to influence his office’s decisions. 

Defense lawyers imply that Gen. Hartmann took these actions as part of an effort by political appointees, including Defense Department General Counsel William J. Haynes, to improperly influence the proceedings.

Defense counsel contend that Congress did not intend for the CA to have power over the OCP. They allege that, in the Military Commissions Act (“MCA”), Congress created the OCP but deliberately omitted reference to a CA. They argue that this, in conjunction with a provision in the MCA that “[n]o person may attempt . . . by any unauthorized means, [to] influence . . . the exercise of professional judgment by trial counsel or defense counsel,” demonstrates Congress’ intention to insulate the OCP from political influence by anyone, including the CA. They further imply that the Secretary of Defense created the CA so that the Secretary and other political appointees could improperly influence career and line military prosecutors. Although the military judges denied the defense motions to dismiss based on these allegations, they found that Gen. Hartmann had displayed a bias necessitating his disqualification from the cases.

As my plane arrived in Guantánamo and I awaited my first glimpse of the base, I read about Gen. Hartmann’s conduct and his reassignment.  I couldn’t help but reflect upon my former career as a federal prosecutor. Toward the end of my twelve-year tenure, the sad news of the Bush administration’s politicization of the Justice Department became widely known. 

The disgrace of Monica Goodling and Kyle Sampson occupying and abusing high-level positions of power scarred the Justice Department and its public image. The Department’s greatest assets include the public’s confidence that it is a government entity free from politics and dedicated to doing justice, above all else. The improper activities of Goodling and Sampson, and the indifference to or sanctioning of their activities by Alberto Gonzales, devalued those assets. The Department and its dedicated public servants are still working to repair them. 

One must wonder whether Gen. Hartmann’s actions will cause similar scars on the military commission proceedings and whether, regardless of the best efforts of career and line prosecutors like Col. Davis, the American people and the world will regard these proceedings as unjust and devoid of moral and legal foundations.

Full post as published by ACS Blog on September 23, 2008 (boomark / email).