Dispatches from the Creation Wars

The White House and Military Tribunals

After a while, you almost reach outrage fatigue. So often and so brazenly has the Bush administration violated even the most basic norms of ethical conduct in the service of protecting their own twisted policies from even being known, much less investigated and overruled, that it can seem futile to point out the most recent. But even by their low standards, this situation is pretty vile.

The Bush administration initially claimed that they could hold anyone they wanted at Guantanamo for as long as they wanted without ever allowing them to challenge their detention (hell, they even claimed that they could hold American citizens in American prisons indefinitely without ever charging them). The Supreme Court knocked that argument down and ruled that those detained at Gitmo had to be given at least minimal due process, even if it was through military tribunals.

The White House and Congress then set about to design a system of military tribunals with the bare minimum in habeas corpus and due process protections that would satisfy the Supreme Court, which they did with the Military Commissions Act. Once that act was in place and they began to actually set up such hearings, several military officers in the JAG corps and others assigned to the situation cried foul and said that the process didn’t work and that many of those on trial were being held on false pretenses.

The first to do so was Colonel Stephen Abraham, an attorney as well as a military intelligence officer specializing in counter terrorism and a conservative Republican. Abraham, after seeing the files in about half of the more than 550 cases pending at Gitmo, was appalled by the total lack of evidence against many of them. He filed the affidavit with the court that, it appears, led to the Supreme Court agreeing to hear a new challenge to the process after they previously rejected the case.

The second and most prominent officer to object to the tribunals was Col. Morris Davis, who was the chief prosecutor for the military commissions at Gitmo until he resigned in disgust in October. Two weeks ago, in an op-ed in the LA Times, he explained why:

In a nutshell, the convening authority is supposed to be objective — not predisposed for the prosecution or defense — and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg’s staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, 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, among other things.

How can you direct someone to do something — use specific evidence to bring specific charges against a specific person at a specific time, for instance — and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, “Trust me, you would have been impressed if only you could have seen what we did in the courtroom” will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.

Finally, I resigned because of two memos signed by Deputy Secretary of Defense Gordon England that placed the chief prosecutor — that was me — in a chain of command under Defense Department General Counsel William J. Haynes. Haynes was a controversial nominee for a lifetime appointment to the U.S. 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.

I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned. Haynes and I have different perspectives and support different agendas, and the decision to give him command over the chief prosecutor’s office, in my view, cast a shadow over the integrity of military commissions. I resigned a few hours after I was informed of Haynes’ place in my chain of command.

Davis says that the military commissions are deeply flawed and are being undermined by political appointees. Since Congress is the one who authorized and provided the ground rules for these tribunals, and is likely to have to revisit the issue after the Supreme Court hears the case, his inside account of what is going on and his suggestions on how to fix the process and make it work is obviously something Congress should hear.

The Senate Judiciary Committee, who would have primary responsibility for drafting an amended Military Commissions Act to meet constitutional scrutiny if the Supreme Court says it’s necessary, held hearings last week on this issue and wanted to hear from Col. Davis. But since Davis is an active duty Air Force officer, the Pentagon simply ordered him not to testify. That’s right – they ordered him not to testify.

Instead of Col. Davis, the Pentagon sent Brig. Gen. Thomas Hartmann to testify. Republican Sen. Lindsey Graham asked Hartmann a simple question: if an American plane crashed in Iranian territory and the Iranian government detained the pilots of that plane, would it violate the Geneva conventions if they subjected the American airmen to waterboarding? Hartmann’s response:

I am not equipped to answer that question, Senator.

Graham was clearly appalled by this answer. You can see the video of the exchange here. Graham, by the way, is a former JAG officer himself.

This same Brig. Gen. Hartmann has now written an op-ed in the LA Times responding to Col. Davis’ accusations. Amos Guiora, a law professor at the University of Utah, former JAG officer in the Israeli Defense Force and head of the School of Military Law for the IDF, calls Hartmann’s reply unresponsive:

In the op-ed, BG Hartmann does not address the essence of Davis’ argument: that he was forced to use illegally obtained evidence. To that end, in his Congressional testimony (Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security, Tuesday, December 11, 2007) BG Hartmann suggested that information received from a detainee subjected to water-boarding would be admissible evidence in a military commission trial.

Furthermore, Hartmann’s claim that “the process offers unprecedented rights to alleged war criminals” is troubling as, to the best of my knowledge, the US has not declared GITMO detainees to be “war criminals.”

In that context, it is important to note that according to various reports, Chairman of the Joint Chiefs of Staff, Navy Adm. Michael Mullen, will order use of the term “War on Terrorism” be discontinued.

BG Hartmann has on two occasions failed to address the most important issue raised by Morris-the use of illegally obtained evidence in the military commissions. That, it seems to me, must be the essence of the ongoing debate regarding future interrogations.

It should be clear to everyone what is going on here: the Bush administration is trying to hide the reality of the military commissions from Congress and the public. You’ve got career military officers, not just one but several, defying their commanders and speaking out publicly about the highly politicized and unjust process that has been set up.

They can’t dismiss these guys as liberal ACLU types, these are military officers that the Pentagon initially trusted with the highest security clearances, men who have spent their careers serving the military and protecting the country. And they say this process is unfair, unjust and designed to thwart the goal of finding the truth. Congress needs to hear from these men. So does the public. And so does the Supreme Court. I know it’s hard after a while to sustain our outrage, but this situation certainly demands it.