Harpers Magazine | February 21, 2008
By Scott Horton

Last week the Department of Defense launched a major media offensive. It announced that trials of six “high-value detainees” linked to the attacks on 9/11 would be charged in proceedings before the Guantánamo military commissions this spring. Specific accusations concerning the roles played by each of the six in the tragedy of 9/11 were all over the media. For the most part, the media has only lightly embroidered the Pentagon’s script. The Washington Post told us about the “clean team” that the Pentagon had sent in, top-notch no-nonsense prosecutors to do the job. PBS’s NewsHour gave an extended segment over to the Pentagon’s key spokesman on the issue, Brigadier General Thomas Hartmann, to set out the case for the proceedings.

Curiously, this ran side-by-side with a series of public presentations by leading figures of the Administration—Attorney General Mukasey, Steven Bradbury (acting head of Justice’s Office of Legal Counsel), Director of National Intelligence Michael McConnell and even President Bush himself—shoring up the Administration’s barely comprehensible position on waterboarding and other coercive interrogation techniques. The overlap was not coincidental, because the two projects were closely intertwined. The Administration took the position that it doesn’t presently authorize waterboarding, but now acknowledges that it did in the past and reserves that it might again in the future. It argues that there’s nothing wrong with waterboarding, and that any waterboarding done in the past was done lawfully. Why not just say that waterboarding is “torture”? There’s one immediate reason: doing so would exclude a mass of evidence that appears to be available for the pending prosecutions.

But while the American mainstream media presented the story with the main spotlight on the Pentagon and its announcements and some trivial sideshows in which bickering lawyers raised quibbles about vexatious technicalities like the hearsay rule, access to exculpatory evidence and the ever-present torture, overseas the Guantánamo proceedings got a different treatment. Outside of the United States, “Guantánamo” is a by-word for torture, authoritarian abuse and injustice. And the fact that the U.S. had elected to put these six detainees on trial before a military commission in Guantánamo drew a predictable review. “There will not be six persons on trial, but seven,” editorialized the predictably pro-American German newspaper Die Zeit. The seventh, of course, is the Bush Administration and its hopelessly corrupted concept of justice.

The American media seems by-and-large not to understand the “justice” angle of the military commissions debate. They instantly want to run into the weeds with extended discussions of evidentiary issues, and they miss the glaring question that hangs over the entire affair. And now a week into the process, the proposed trials have taken a strange twist. Will the American media at last recognize that the real questions about this process go to the fundamental independence of the courts? Dramatic disclosures in an article published yesterday in The Nation require them to take a close look at it. So far, they don’t seem to be willing to do so. Here’s the core of Ross Tuttle’s dramatic piece:
 

According to Col. Morris Davis, former chief prosecutor for Guantánamo’s military commissions, the process has been manipulated by Administration appointees in an attempt to foreclose the possibility of acquittal. Colonel Davis’s criticism of the commissions has been escalating since he resigned this past October, telling the Washington Post that he had been pressured by politically appointed senior defense officials to pursue cases deemed “sexy” and of “high-interest” (such as the 9/11 cases now being pursued) in the run-up to the 2008 elections. Davis, once a staunch defender of the commissions process, elaborated on his reasons in a December 10, 2007, Los Angeles Times op-ed. “I concluded that full, fair and open trials were not possible under the current system,” he wrote. “I felt that the system had become deeply politicized and that I could no longer do my job effectively.”

Then, in an interview with The Nation in February after the six Guantánamo detainees were charged, Davis offered the most damning evidence of the military commissions’ bias–a revelation that speaks to fundamental flaws in the Bush Administration’s conduct of statecraft: its contempt for the rule of law and its pursuit of political objectives above all else. When asked if he thought the men at Guantánamo could receive a fair trial, Davis provided the following account of an August 2005 meeting he had with Pentagon general counsel William Haynes–the man who now oversees the tribunal process for the Defense Department. “[Haynes] said these trials will be the Nuremberg of our time,” recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, something that had lent great credibility to the proceedings.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.’”

Davis submitted his resignation on October 4, 2007, just hours after he was informed that Haynes had been put above him in the commissions’ chain of command. “Everyone has opinions,” Davis says. “But when he was put above me, his opinions became orders.”

In particular, Davis and other Guantánamo prosecutors were crest-fallen over the handling of the case of David Hicks. An Australian sheepskinner turned Middle East adventurer, Hicks was labeled one of the “worst of the worst” and was charged with being a weapons-toting terrorist. Just as his trial got under way, and Davis confidently delivered a searing opening promising to make Hicks out as a bloodthirsty figure who had betrayed his homeland and turned to a path of “Islamic” violence, the public learned that a plea-bargain had been reached. Curiously however, all this transpired without involving the prosecutors. You might well wonder how that was possible. And indeed, that is the very nub of the current accusations over the rigging of the commissions, because the handling of the Hicks case quite dramatically supports Colonel Davis’s charges. Over the next several weeks, the details of the Hicks plea bargain—which led very quickly to a minimal sentence for Hicks, his transfer to Australia, and his release—trickled out. Apparently the Hicks case turned on one single issue: politics. Indeed, electoral politics.

Australian Prime Minister John Howard was facing a difficult election campaign. The imprisonment of David Hicks was figuring as a terrible issue for him and his Liberal Party. Public opinion has swung against his government, as people, led by the legal community, questioned how an Australian citizen could be abandoned to the perils of Guantánamo—when the U.K. and other nations had fetched their nationals home. Vice President Dick Cheney visited Howard, discussed the Hicks case, and returned home. Within a short period, a Cheney protégée, particularly close to Cheney’s chief of staff David Addington, Susan J. Crawford, was installed as the convening authority for the Military Commissions, and Ms. Crawford’s legal advisor quickly negotiated a plea bargain with Hicks’s attorneys. Later it was learned that Jim Haynes, known for his tight connections with the Vice President’s office, had played a key role as intermediary in the affair.

The Australian public welcomed the release of David Hicks, but the manipulation of his case produced a significant scandal. It was, as several Australian papers charged, the impermissible manipulation of legal proceedings through a political process and for political reasons–which many speculated is about all the Guantánamo process had been from the outset. John Howard and his Liberal Party were humiliated at the polls, and in an astonishing embarrassment, voters in Howard’s own constituency decided to retire him from political life. But American media reacted to the entire affair with a collective yawn.

So the first high profile military commissions case ran its full course. And it turned on nothing except politics. Not a good sign for the future.

But as foreign media were regularly observing, there was something extremely fishy about these “military” commissions. In fact one of the major insights critics offered up was that they were not really “military” at all. They had the appearance of being “military,” because the courtroom scene on which all the cameras focused were filled with men and women in uniform. But as the Hicks case showed, the military actors were all like so many marionettes. Behind the scenes, the puppet masters were pulling the strings. And the puppet masters were suspiciously partisan political figures. Two were points of focus. The first is Susan J. Crawford, who served as convening authority. In the military justice system the convening authority is a uniformed military commander whose command responsibility covers the territory or subject matter of the legal proceedings. He is the “convening authority” because the military justice process is seen as an extension of his command authority. Under the doctrine of Yamashita, military commanders have a specific responsibility to implement the laws of armed conflict, and they may in fact bear liability if they fail in this duty. 

But unlike her predecessor, Major General John D. Altenburg, Susan J. Crawford is a convening authority who has never worn a uniform nor held a military command. She is a civilian. Indeed, her principal qualification for the position appears to be her political proximity to Vice President Cheney, and specifically to his legal policy guru, David Addington. In fact at an event held last year to mark Crawford’s retirement as a military appeals judge, she went out of her way to note the presence of and thank just one person, her friend David Addington.

Given this tight relationship, it then emerges as no surprise that Crawford and her office are so receptive to the concerns of Vice President Cheney’s office and so prepared to allow another Addington crony, Jim Haynes, to dictate the terms of the proceedings.

But, unseemly as this situation was already, it actually got much worse following the Hicks case. Apparently judging the military commissions process as a matter of tight personal concern, Jim Haynes decided he needed to have tighter and more direct control over them. He then proposed a change in the command structure for the participants. They were to be subordinated directly to his command.

Haynes crafted and secured Deputy Secretary of Defense Gordon England’s signature on two documents. The first, which can be examined here, directs that Brigadier General Thomas Hartmann, Legal Advisor to the convening authority and the person who effectively manages her office, reports to Paul Ney, DOD Deputy General Counsel (Legal Counsel), who, of course, in turn, reports to Jim Haynes.

The second memorandum, which can be examined here directs that Colonel Morris Davis, the Chief Prosecutor, reports to Brigadier General Hartmann, who reports to Ney, who reports to Haynes. This memorandum was particularly necessary as an after-the-fact adjustment to cover Haynes’s manipulation of the Hicks case, establishing a chain-of-command justification for his intervention to direct the plea bargain resolution of the case.

Same relationship exists for the Chief Defense Counsel, who reports to Paul Koffsky, DOD Deputy General Counsel (Personnel & Health Policy) who, like Ney, reports to Haynes.

The cumulative effect of these changes masterminded by Haynes is plain enough: the already very obvious threads attached to the commission participants were replaced with some crude hemp rope. It was obvious to all observers who was calling the shots. And it was plainly illegal and unethical. Professional rules require the defense counsel, prosecutor, and judges to exercise independent professional judgment. Moreover, the Military Commissions Act of 2006 guarantees the professional independence of these actors in the process. The command structure crafted by Haynes was plainly designed to achieve the political subordination of the JAGs, defying the MCA’s guarantee of independence.

Davis resigned because he felt the commissions system was rigged. He also filed a formal complaint over the improper role played by the convening authority’s legal advisor in the Hicks case. That complaint is in the process of investigation by the Department of Defense. Here is a memorandum posted to the Department of Defense’s website concerning the still pending investigation and the issues raised. Note that while Davis was not in a position to premise the complaint on Haynes’s involvement, that is the 800 pound gorilla in the room. But Davis was not the only, nor even the first prosecutor to resign. Three others–Maj. Robert Preston, Capt. John Carr and Capt. Carrie Wolf–asked to be relieved of duties after saying they were concerned that the process was rigged. One said he had been assured he didn’t need to worry about building a proper case; convictions were assured.

Of course, the number of defense counsel claiming that the system is stacked against them is legion. I surveyed the views of the defense lawyers, and the serious mistreatment they frequently faced at the hands of the Rumsfeld Pentagon, in this article.

Even the chief judge at Guantánamo, Colonel Ralph Kohlmann is plainly troubled by the military commissions arrangement. He wrote in a paper published in 2002 that “even a good military tribunal is a bad idea.” Col. Kohlmann argued that the “apparent lack of independence” of military judges would present “credibility problems.” Col. Kohlmann wrote these words before the obvious political manipulation of the Hicks case and before Haynes’s jiggered the command structure to place himself in control of the entire process. The “apparent lack of independence” of which he wrote has ballooned into a nightmarish reality.

Brigadier General Hartmann is a focal figure in all of this. His “independent judgment” has been dramatically displayed in his testimony before a Senate Committee. He was asked a few questions about waterboarding and torture, and the answers he gave were strictly those of his puppet master. A number of senators, from both parties, expressed their disgust with his stooge-like behavior. Moreover, Hartmann has now made the media rounds dramatizing the trials, denouncing the defendants as terrorist murderers who are finally seeing a glimpse of justice. Now, they may well be terrorist murderers who deserve to be prosecuted and receive severe sentences–but it is highly inappropriate for Hartmann to be making such statements. As legal adviser to the convening authority, any decisions in the case will be referred to him. And he has now publicly prejudged the cases, disqualifying himself under applicable ethical rules from playing the role which has been delegated to him. Even more to the point, the fact that a person who serves as a sort of appellate authority would be involved in media spectacles designed to demonstrate the importance of the case against the accused reflects very poorly on the entire process, and will undermine public confidence in any result that it produces.

Hartmann was quick to invoke the model of the Nuremberg trials, calling these proceedings a “modern Nuremberg.” In fact, the Nuremberg process is worthy of emulation and had the Bush Administration turned to its grand design, or even some of the other model international tribunals, most of the embarrassment that now surrounds the Gitmo moral swamp would have been avoided. Robert H. Jackson, arguably America’s greatest attorney general, was responsible for structuring those proceedings. He made clear throughout that he was guided by two concerns. The first was to do justice. And the second was to be damned sure that the public recognized that justice was being done. He accomplished both goals, and the result was a landmark international law and a point of pride for America.

But the military commissions crafted by the Bush Administration are an embarrassing stain compared to Nuremberg. One of the main reasons is that they have been crafted by political hacks out on a partisan agenda, and the experts who could have done a credible job–first among them the military lawyers in the JAG corps–have been ignored or overruled at each turn. The ability of defense counsel to conduct a meaningful defense has been impeded, with gains coming grudgingly only after the Supreme Court overturned the first, colossally incompetent structure in Rasul. Most menacingly, the specter of torture hovers over the current military commissions proceedings, with the acknowledgement that many of the defendants were subjected to techniques which the entire world (excluding only the Bush Administration) considers to be torture.

Even most critics concede the professionalism and integrity of the military lawyers who are assigned to the military commissions system as judges, prosecutors and defense counsel. Their professionalism and integrity are not an issue, or more precisely, protecting their professionalism and integrity from political predators is the issue. Critical attention focuses today just where it did at the outset: on the political hacks who have shamelessly attempted to manipulate the system, and whose misconduct is bringing shame and opprobrium upon the United States. Colonel Davis’s description of his conversation with Haynes comes as a surprise to no one who has been tracking this issue. To the contrary, it is a bit of the well-understood reality of the situation bubbling to the surface.