Reprieve condemns “unlawful command influence” in Guantánamo’s military commissions

September 16, 2008

Image of a prison cell window with bars

Reprieve, the legal action charity, today condemns the politicisation of the military commission system at Guantánamo (the novel trial system for prisoners seized in the “War on Terror” that was conceived in November 2001), with particular reference to the case of British resident Binyam Mohamed.

Mr. Mohamed, who is represented by Reprieve’s lawyers, was put forward for trial by military commission in June. The charges against him have not yet been confirmed by the commissions’ Convening Authority, retired judge Susan Crawford, who oversees the whole process, but Reprieve has serious doubts that she will be able to make a fair decision about the charges.

The crux of the problem is the role played in what should be a fair and impartial process by three particularly influential figures: Susan Crawford, Brig. Gen. Thomas Hartmann, her Legal Adviser, and William J. Haynes II, the Pentagon’s former Chief Counsel.

Tensions behind the scenes at the commissions were first revealed a year ago, when Col. Morris Davis, the commissions’ chief prosecutor, filed a formal complaint alleging that Hartmann, who had been appointed as the Legal Advisor to the Convening Authority in July, had “overstepped his mandate by interfering directly in cases.”

  • On 4 October, Davis resigned as chief prosecutor, and in December he explained why in an op-ed in the Los Angeles Times, in which he was damning not only of Hartmann, but also of Crawford and Haynes. “I was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system,” he wrote, adding, “I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.”
  • Davis wrote that the particular trigger for his decision was when he was informed that he had been placed in a chain of command under Haynes. Explaining that he resigned “a few hours after” being informed of this, he mentioned that “Haynes was a controversial nominee for a lifetime appointment to the US 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.” He added, “I had instructed the prosecutors in September 2005 [shortly after taking the job] that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned.”
  • Davis was also critical of the role played by both Hartmann and Crawford, and was dismayed by their desire to conduct trials “behind closed doors.” “Transparency is critical,” he wrote, adding that it was “absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality,” and pointing out that “even the most perfect trial in history will be viewed with scepticism if it is conducted behind closed doors.”
  • Davis also directed a specific attack at Susan Crawford (who was appointed in February 2007), explaining that “the political appointee known as the ‘convening authority’ – a title with no counterpart in civilian courts – was not living up to that obligation.” As he described it, Susan Crawford, unlike her predecessor Maj. Gen. John Altenburg, whose staff had “kept its distance from the prosecution to preserve its impartiality,” had overstepped her administrative role, and “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.” “Intermingling convening authority and prosecutor roles,” he continued, “perpetuates the perception of a rigged process stacked against the accused.”

“Binyam Mohamed cannot receive a fair trial at Guantánamo”

Morris’ criticism of this interference is central to Reprieve’s complaints that Binyam Mohamed cannot receive a fair trial at Guantánamo, and is reinforced by developments in the last four months, in which three military commission judges – military officers appointed by the government – have disqualified him from taking part in three trials because of “unlawful command influence.”

In May, after Davis reprised his complaints in pre-trial hearings for Salim Hamdan, a driver for Osama bin Laden whose trial took place this summer, the judge in Hamdan’s case, Capt. Keith Allred, disqualified Hartmann from playing any role in Hamdan’s trial, ruling that he was “too closely allied with the prosecution.” “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,” Allred wrote, explaining that public concern about the fairness of the cases was “deeply disturbing,” and that he did not find that Hartmann “retains the required independence from the prosecution.”

He added, “Telling the chief prosecutor (and other prosecutors) 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, suggests that factors other than those pertaining to the merits of the case were at play.”

In August, another judge, Col. Stephen Henley, disqualified Hartmann for a second time, during a pre-trial hearing for Mohamed Jawad, an Afghan who was just 16 or 17 years old when he allegedly threw a grenade at a vehicle containing two US soldiers and an Afghan interpreter. Jawad’s military defence lawyer, Maj. David Frakt, told Henley that Hartmann “usurped the role of a prosecutor – rather than acting dispassionately – and pushed to get Jawad charged because the case involved battlefield bloodshed,” and also pointed out that Hartmann had “failed to turn over defense documents” to Crawford, even though these documents “outlined mitigating circumstances that might have altered her decision to endorse the charges.”

Maj. Frakt also secured testimony from an unlikely critic, Brig. Gen. Zanetti, the deputy commander of Guantánamo’s Joint Task Force, who declared that Hartmann’s demeanour was “abusive, bullying and unprofessional … pretty much across the board.” In a memorable line, he described Hartmann’s approach as, “Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.” As Carol Rosenberg put it in the Miami Herald, Brig. Gen. Zanetti “described struggling with Hartmann over who would run US forces working on trial logistics,” and said that he sought to discuss the concept of “command unity” with him. “As a principle, it’s really been around since Alexander the Great. Most military people understand this one,” he said, adding, however, that “Gen. Hartmann really wanted to run things.”

In response, Col. Henley not only dismissed Brig. Gen. Hartmann from further involvement in Jawad’s case, but also “ordered the documents [mentioned by Maj. Frakt] to be sent to Crawford along with other potentially exculpatory information.” Although he refused to order the charges to be dropped entirely, he made a request for Crawford to review the charges, indicating that it was up to her to decide whether to “drop or reduce them.”

Two weeks ago, Hartmann was barred for a third time, this time from a post-trial review in the case of the Canadian Omar Khadr, who was just 15 years old when he was seized in Afghanistan. The judge, Col. Patrick Parrish, had refused a request from Khadr’s lawyers to disqualify Hartmann from involvement in Khadr’s trial, but he barred Hartmann from reviewing it, in the case of a conviction, because of what the Miami Herald described as “an appearance of pro-prosecution bias.”

After this third disqualification, Charles “Cully” Stimson, a former deputy assistant secretary for detainee affairs, stepped forward to suggest that, under a “three strikes and you’re out” philosophy, Hartmann should resign. “If Hartmann continues in this role and soils each case that he touches,” Stimson said, “by definition it will result in reversal or it will result in the next judge removing Hartmann and the next judge removing Hartmann. How many times do you have to get kicked in the shins and say ouch?”

Stimson added that Hartmann should be “thanked and excused from his service,” and explained that he was particularly concerned about challenges and appeals frustrating the forthcoming trial of Khalid Sheikh Mohammed and his co-conspirators in the 9/11 attacks, which Hartmann “helped shepherd.” As the Miami Herald described it, Stimson also suggested that the Defense Department “should reorganize the role of legal advisor to separate the supervision of the Pentagon’s War Crimes Prosecutor from the legal authority that independently reviews the cases.”

Given all these factors, Reprieve has no hesitation in calling for the immediate resignation of both Brig. Gen. Hartmann and Susan Crawford, for all charges against Binyam Mohamed to be dropped, and for an investigation to be launched into the role in this debacle that was played by William Haynes II, who resigned as the Pentagon’s Chief Counsel in February. Indeed, three times Reprieve has formally asked Crawford to follow the rulings of the very judges appointed by her, who have found her legal advisor to be too partial for the job. She had refused to follow the judges’ rulings.

Reprieve calls for all charges to be dropped

Reprieve believes that it is now abundantly clear that Binyam Mohammed cannot obtain a fair trial at Guantánamo. When Col. Henley ordered “potentially exculpatory information” in Mohamed Jawad’s case to be submitted to Susan Crawford, he highlighted the system’s in-built corruption, as the authorities obviously believe that “potentially exculpatory information” is an inconvenient obstacle to a successful prosecution at all costs. This confirms Col. Davis’ report of a conversation he had with William Haynes II in 2005, in which he stated that Haynes told him, “We can’t have acquittals.”

In Binyam Mohamed’s case, the decision to hand over a small amount of “potentially exculpatory evidence” to Susan Crawford was only undertaken after the British High Court ruled, in August, that the British government was under an obligation to hand over information in its possession, regarding Mr. Mohamed’s rendition and torture, to his lawyers. The US State Department’s response, in an attempt to prevent disclosure, was to offer a minor concession that echoes the disclosure problems in Mohamed Jawad’s case: John Belllinger, the State Department’s Legal Adviser, stated that he would ensure that the British information was handed over to Susan Crawford before she made a decision.

Meanwhile, however, the military prosecutors have actively refused to provide Crawford with other exculpatory evidence, and have refused to let the lawyers representing Mr. Mohamed (including counsel from Reprieve, Clive Stafford Smith) even see the very material that the British government says could help prove his innocence. The military prosecutors continue to deny that Mr. Mohamed was even rendered, let alone tortured, so they can hardly be trusted to submit an unbiased account of the case to Crawford for her review. Why favorable evidence needs to be kept secret from Mr. Mohamed and his lawyers nobody can explain.

The State Department’s concession is disturbing enough in its own right, but Reprieve remains unconvinced that Susan Crawford will take appropriate account of the evidence, given Col. Davis’ complaints about her political interference in the process.

Zachary Katznelson, Reprieve’s Legal Director, said:

“This farrago has gone on for long enough. We have asked three times for Brig. Gen. Hartmann to be removed from Binyam’s case, following decisions made by the US government’s own military judges to exclude him from three separate cases. Each time, Susan Crawford has refused. Brig. Gen Hartmann is now so discredited that he must surely resign, but it’s also clear that Susan Crawford’s cloak of impartiality is a fiction, and we call on her to resign too.”

He added:

“When it comes to the case of Binyam Mohamed, we at Reprieve are deeply concerned that Brig. Gen. Hartmann has been responsible for submitting a recommendation in Binyam’s case to Susan Crawford, even though we have not been allowed to see it. How this is supposed to be justifiable is beyond me. In such an untrustworthy environment, we call upon the British government once more to do all in its power to secure the return of Binyam Mohamed to the UK, where, if appropriate, he can face charges in a properly constituted legal setting, rather than in a crooked political process that is unjust at every level.”

-ENDS-

For further information, please call Andy Worthington at Reprieve’s Press Office on 020 7427 1099 or email: Andy@reprieve.org.uk.

Notes for Editors:

Reprieve, a legal action charity, uses the law to enforce the human rights of prisoners, from death row to Guantánamo Bay. Reprieve investigates, litigates and educates, working on the frontline, to provide legal support to prisoners unable to pay for it themselves. Reprieve promotes the rule of law around the world, securing each person’s right to a fair trial and saving lives. Clive Stafford Smith is the founder of Reprieve and has spent 25 years working on behalf of people facing the death penalty in the USA.

Reprieve’s current casework involves representing 33 prisoners in the US prison at Guantanamo Bay, working on behalf of prisoners facing the death penalty, and conducting ongoing investigations into the rendition and the secret detention of ‘ghost prisoners’ in the so-called ‘war on terror.’

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