US Military Commissions Under Investigation

Brig. Gen. Thomas Harmann - Photo from Andy Worthington's Site Andy Worthington dot co dot uk (see the link below)

Corruption at Guantanamo: Military Commissions Under Investigation

In a third article looking at the corrupt chain of command in the Military Commissions at Guantanamo, Andy Worthington, author of The Guantánamo Files, looks at the implications of the recently announced military investigations into the conduct of the Commissions’ former legal adviser, Brig. Gen. Thomas Hartmann, but doubts that either investigation will be encouraged to look up the chain of command to see who was pulling Hartmann’s strings.

Last month saw the “reassignment” of Air Force Brig. Gen. Thomas Hartmann, the legal adviser to Susan Crawford, the Convening Authority who oversees the Military Commissions at Guantánamo (the system of “terror trials” conceived by Vice President Dick Cheney and his close advisers in November 2001). Hartmann, who was appointed in July 2007, was removed from his post after three government-appointed military judges had disqualified him from playing any further part in two trials — those of Salim Hamdan and Mohamed Jawad — and had also excluded him from a post-trial review in the case of Omar Khadr, because of his transparent pro-prosecution bias.

Hartmann had certainly ignored the requirement in his job description (as laid down in the Military Commissions Act of 2006) to deal impartially with both the prosecution and the defense, as two unexpected critics had confirmed over the previous months. In August, Brig. Gen. Gregory Zanetti, the deputy commander of Guantánamo’s Joint Task Force, testified that Hartmann’s demeanor was “abusive, bullying and unprofessional … pretty much across the board,” and in a memorable line described his approach as, “Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.”

A few weeks ago Maj. David Frakt, the military defense lawyer for Mohamed Jawad, directed me to a deposition in Jawad’s case that was made in June by Capt. Patrick McCarthy, the Staff Judge Advocate of Joint Task Force Guantánamo, who noted that Hartmann was “remarkably aggressive” to him during meetings at Guantánamo, and that his “preferred approach” to personnel in Guantánamo was to “aggressively question” them, “and then when I attempted to interject and correct misunderstandings that were clear in the conversation, he would say things like, ‘who asked you? No one has asked you. You just be quiet.’ Things along those lines.”

As I also wrote in an article following Maj. Frakt’s correspondence with me:

Capt. McCarthy also testified that, as well as being bullying and dismissive to himself and, it seemed, every other officer below the rank of General or Admiral at Guantánamo, Hartmann had held several secure video teleconferences with the commanders at Guantánamo, and two face-to-face meetings, which, it appeared, were also part of his mission to “brief” commanders on how and when the trials would proceed, rather than allowing these issues to be developed by the prosecutors. As McCarthy described it, Hartmann “would closely identify himself with prosecutorial efforts,” was “involved at a level of detail that no other general or flag officer that I’ve ever worked for or with has ever been involved at,” and gave the impression that he was “responsible for moving forward with military commissions in all respects.”

As reported by the Los Angeles Times, which first announced the story of the investigations, Hartmann is facing investigations by both the Air Force and the Defense Department’s Office of the Inspector General. The latter, reflecting the testimony above, centers on complaints by at least two military officials about Hartmann’s “abusive and retaliatory behavior” towards them in the Office of Military Commissions, but the first is regarded as the more serious of the two, because military officials explained that “it was launched only after a preliminary inquiry found sufficient grounds to move forward.”

Investigators will look not only at allegations of Hartmann’s much-reported bullying, but more particularly at its baleful effects on the Commissions: cases proceeding to trial before they were ready (and in one instance on the basis of “charges that were unwarranted”), Hartmann’s insistence on using evidence obtained through coercion despite the objections of prosecutors, and “intentionally misleading statements,” which Hartmann made both in public and during the Commission proceedings, “in an effort to downplay the direct role that he played” on behalf of the prosecution.

These are all familiar complaints to those who have studied Hartmann’s tenure closely. As Capt. McCarthy explained in June, Hartmann had shown him a timeline of charges in November 2007, which indicated how many cases would proceed and when they would take place, and which also, of course, indicated that the decisions to proceed were not in the hands of the prosecutors, as they should have been. In a hearing at Guantánamo in the same month, Hartmann admitted that this timeline existed, but as Maj. Frakt explained, it was not until he compared the dates on Hartmann’s chart with the dates the prisoners were actually charged that he realized that they were remarkably similar. In a motion to dismiss in August, he wrote, “It is easy to come up with a sinister explanation for the congruence of the chart and the scheduling order. It is hard to come up with an innocent one.”

Col. Morris DavisMaj. Frakt also pointed out how Hartmann had persistently misrepresented his role in public announcements when charges were put forward in various cases (for example, here and here), when he “gave the impression that no decisions had been made by him, that he had no prior familiarity with the evidence and that he was taking an open-minded review of the evidence.” The issue of using coerced evidence was addressed by Col. Morris Davis (photo, left), the Commissions’ former chief prosecutor, who resigned in October 2007, the day after he had been put in a chain of command below Hartmann, who was himself answerable to the Pentagon’s chief counsel, William J. Haynes II. Complaining of political interference, and the desire by his superiors to use evidence obtained through coercion — or even through torture — to which he was implacably opposed, Davis explained last December that he resigned after concluding that “full, fair and open trials were not possible under the current system.”

Unsurprisingly, both Col. Davis and Maj. Frakt have been “interviewed at length” by the Air Force inquiry’s chief investigator, Brig. Gen. Steven J. Lepper, who was assigned to the investigation after an unidentified military defense lawyer complained about Hartmann to Lt. Gen. Jack L. Rives, the Air Force’s Judge Advocate General, who in turn “referred the matter to his advisory committee on professional responsibility, which launched a preliminary inquiry and reported that a full investigation was warranted.”

Reiterating well-trodden complaints, Davis told the Los Angeles Times that Hartmann had “grossly exceeded his role as a neutral and independent and impartial legal advisor,” and Frakt said he “came forward with allegations about Hartmann because military regulations require one lawyer to report another if there is ‘a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.’” He added, “I do believe that Brig. Gen. Hartmann has acted in a manner that raises substantial questions as to his honesty, professionalism and fitness as a lawyer, and I believe his conduct has been prejudicial to the fair administration of justice in the military commissions.”

Another former prosecutor, who declined to be identified, told the Times that he too had been approached by Lepper. Reinforcing complaints aired above, he explained that he believed that Hartmann “was hammering on other prosecutors to move faster on cases, in one instance demanding that three or more cases a month be initiated,” even if they were not ready.

For opponents of Hartmann, the investigations will hopefully validate their many complaints about his excessive and inappropriate zeal. Although the investigations have no fixed timeline, the Times reported that, “if Hartmann was found to have acted improperly, he would face administrative sanctions that could include removal of his Judge Advocate General certification,” and other military lawyers suggested that Lt. Gen. Rives could “transfer Hartmann away from the Guantánamo cases or even ask for his retirement.”

Even more significantly, Scott Silliman of Duke University, who served in the Air Force’s Judge Advocate General Corps for 25 years, noted, “If there is a finding that Hartmann exceeded his role, I think every defense lawyer is going to walk in and move for some kind of relief in their case, and say it was not handled properly and move for the charges to be dismissed or refiled based on Hartmann’s activities.”

For me, this would be the best outcome of the investigations, for one simple reason. Much as I share numerous commentators’ delight that Hartmann’s exercise of undue command influence is being investigated, it is apparent, as I reported in a detailed article a month ago, that in many ways Hartmann was used by his superiors to act on their behalf and, simultaneously, to shield them from criticism. To understand the underlying reasons for the exercise of undue command influence in the Military Commissions, it is necessary to gaze up the chain of command to those who were directing Hartmann’s bias.

This chain of command, which caused Col. Davis to resign, leads from Hartmann to Susan Crawford, on to the Pentagon’s Chief Counsel (formerly Haynes, and now Daniel Dell’Orto), and from there to Dick Cheney and his chief of staff David Addington, the engineers of the whole malign project. For justice to have a chance to prevail, two investigations into Hartmann’s role are unlikely to be sufficient. Instead, the whole Commission process must be shut down, which will hopefully happen when a new administration takes office and the services of Cheney, Addington, Dell’Orto and Crawford are no longer required.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press/the University of Michigan Press).

As published exclusively on the website of the Future of Freedom Foundation.

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