Andy Worthington, author of The Guantánamo Files, looks at recent disturbing developments in the Military Commission trial system at Guantánamo, and traces a chain of command that runs from the Commissions’ supposedly impartial "Convening Authority" all the way to the Office of the Vice President.
A Prosecutor Resigns
On September 24, Col. Lawrence Morris, the chief prosecutor of Guantánamo’s Military Commission trial system, announced that Lt. Col. Darrel Vandeveld, the prosecutor in the case of Mohamed Jawad (an Afghan and a teenager at the time of his capture who is accused of throwing a grenade at a jeep containing two US soldiers and an Afghan translator), had asked to quit his assignment before his one-year contract expired.
Although Col. Morris attempted to explain that Lt. Col. Vandeveld was leaving "for personal reasons," the real reasons were spelled out in a statement issued by Vandeveld (PDF), in which he expressed his frustration and disappointment that "potentially exculpatory evidence" had "not been provided" to Jawad’s defense team:
"My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain "procedure" for affording defense counsel discovery. One would have thought six years since the Commissions had their fitful start, that a functioning law office would have been set up and procedures and policies not only put into effect, but refined.
"Instead, what I found, and what I still find, is that discovery in even the simplest of cases is incomplete or unreliable. To take the Jawad case as only one example a case where no intelligence agency had any significant involvement I discovered just yesterday that something as basic as agents’ interrogation notes had been entered into a database, to which I do not have personal access These and other examples too legion to list are not only appalling, they deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct."
Vandeveld also stated, "My view of the case has evolved over time," and proceeded to explain how he had come to suspect that Jawad, who has always denied throwing the grenade, was duped into joining a militant group, and was drugged before the attack. Michael Berrigan, the Commissions’ deputy chief defense counsel, added that prosecutors also knew that the Afghan Interior Ministry said that two other men had confessed to the same crime, although Vandeveld did not mention this in his statement.
Vandeveld added, "Based on my view of the case, I have advocated a pre-trial agreement under which Mr. Jawad would serve some relatively brief additional period in custody while he receives rehabilitation services and skills that will allow him to reintegrate into either Afghan or Pakistani society." This, however, was turned down by his commanding officers. He continued: "One of my motivations in seeking a reasonable resolution of the case is that, as a juvenile at the time of capture, Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him. I am bothered by the fact that this was not done."
On October 26, as Jawad’s defense lawyer, Maj. David Frakt, sought to have the case dismissed due to "gross government misconduct," Lt. Col. Vandeveld testified for the defense by video link from Washington D.C., explaining, as the Associated Press described it, that "the embattled military tribunal system may not be capable of delivering justice for Jawad or the victims." "They are not served by having someone who may be innocent be convicted of the crime," Vandeveld said, reiterating that, even after six years, "it is impossible for anyone in good conscience to stand up and say he or she is provided all the discovery in a case."
Explaining more of his reasons for quitting his job, Vandeveld told the court that he "reached a turning point" when he chanced upon "key evidence among material scattered throughout the prosecutors’ office." In another case file, he said he "saw for the first time a statement Jawad made to a military investigator probing prisoner abuse in Afghanistan," and described it as "an episode that helped convert him from a true believer to someone who felt truly deceived.’" He added that he had "even developed sympathy" for Jawad. "My views changed," he said. "I am a father, and it’s not an exercise in self-pity to ask oneself how you would feel if your own son was treated in this fashion."
Lt. Col. Vandeveld’s departure and his reasons for leaving are another serious blow to the credibility of the Military Commissions, which were established by Dick Cheney and his close advisers in November 2001. In June 2006, they were ruled illegal by the US Supreme Court, and although they were revived by Congress later that year in the much-criticized Military Commissions Act, they have never escaped accusations that they are a parody of justice, designed to secure convictions at all costs. Even so, Lt. Col. Vandevelt’s profound criticisms of a system that imprisons juveniles instead of rehabilitating them, and that suppresses evidence relevant to the defense, is just part of a much darker narrative that has been unfolding for the last 18 months.
The Role of Brig. Gen. Hartmann
From this perspective, an even more significant event was the Pentagon’s announcement, on September 19, that Brig. Gen. Thomas Hartmann had been removed from his post as legal adviser to the Convening Authority overseeing the Commission process, which, as the Washington Post recently explained, is "a Pentagon office that is required to exercise a neutral role in the commissions, overseeing but not dictating the work of prosecutors and allocating resources to both the prosecution and defense."
Hartmann, a reservist whose civilian job is chief counsel to the Connecticut-based Mxenergy Holdings Inc., became the legal adviser to the Convening Authority in July 2007, and was also required to "exercise a neutral role." According to the rules set up for the Commissions, he was "supposed to provide impartial advice" to the Convening Authority (retired judge Susan Crawford), and was also supposed to "make an independent and informed appraisal of the charges and evidence," to help Crawford "decide whether charges proposed by the prosecutors are sufficient to go to trial."
However, complaints arose almost as soon as Hartmann was appointed. Just two months after he took the job, the Wall Street Journal revealed that Col. Morris Davis, the Commissions’ chief prosecutor, had filed a formal complaint alleging that he had "overstepped his mandate by interfering directly in cases." In a letter, Davis suggested that both he and Hartmann should resign "for the good of the process," adding, "If he believes in military commissions as strongly as I do, then let’s do the right thing and both of us walk away before we do more harm."
Officials who spoke to the Journal‘s Jess Bravin made it clear that Col. Davis was not alone in his complaints. A lawyer close to the process explained that, although Hartmann had complained that, after four years, the prosecution was "still unready to try cases," and was frustrated with their "can’t do" approach, some of the prosecutors regarded him as "micromanaging’ cases he doesn’t fully understand."
Brig. Gen. Hartmann escaped unscathed from Col. Davis’ accusations and in fact it was Davis, alone, who resigned on October 4 and he also escaped censure the following month, when, during a pretrial hearing for Omar Khadr (the Canadian who was just 15 years old when he was captured in July 2002), Khadr’s defense team announced that they had just been informed of the existence of an eyewitness to the main crime for which Omar was being charged the death of a US soldier in a grenade attack whose testimony could exonerate their client. This was extraordinary enough, in and of itself, but what made the story particularly shocking was prosecutor Jeff Groharing’s admission that, as the Los Angeles Times described it, "he had been prohibited from talking about the case" by Brig. Gen. Hartmann.
Hartmann Is Barred from Three Trials
Hartmann’s luck finally ran out in May, when, after Col. Davis reprised his complaints in pretrial 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 him from playing any role in Hamdan’s trial, ruling that he was "too closely allied with the prosecution," and that "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 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, Hartmann was excluded from Mohamed Jawad’s trial for the same reasons. Jawad’s lawyer, Maj. David Frakt, told the judge, Col. Stephen 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." Frakt also pointed out that Hartmann had "failed to turn over defense documents" to Susan Crawford, even though these documents "outlined mitigating circumstances that might have altered her decision to endorse the charges." He also secured testimony from an unlikely ally, Brig. Gen. Zanetti, the deputy commander of Guantánamo’s Joint Task Force, who declared that Hartmann’s demeanor was "abusive, bullying and unprofessional pretty much across the board," and described his approach to the Commissions as, "Spray and pray. Charge everybody. Let’s go. Speed, speed, speed."
Three weeks ago, Hartman was barred for a third time, this time from any post-trial review in Omar Khadr’s case. 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, for the same reasons as those described above.
To add to the criticism, Lt. Col. Vandeveld also tore into Hartmann as he announced his departure from the Commissions. The Los Angeles Times spoke to a Pentagon official, who explained that "Vandeveld had defended Hartmann against the undue-influence allegations in the Jawad case in recent weeks but lost," and Hartmann "had retaliated against him, causing the prosecutor emotional distress and prompting him to quit and go public with his concerns."
News of Brig. Gen. Hartmann’s departure was telegraphed three weeks ago, in the wake of the Khadr ruling, when 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. Stimson 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."
Hartmann’s Extraordinary Promotion
Instead of losing his job, however, Brig. Gen. Hartmann was actually promoted to a new post, as Director of Operations, Planning and Development for the Commissions, responsible, as the Associated Press put it, for "such activities as the hiring of dozens of lawyers and paralegals and ensuring there are adequate resources for the massive legal undertaking." His deputy, retired Army Col. Michael Chapman, took over as legal adviser.
In the Miami Herald, Carol Rosenberg shrewdly realized that the Pentagon had hoped to bury the news of Hartmann’s reassignment. Explaining that the announcement "ended weeks of speculation on the fate of Hartmann with little fanfare," she noted that it was issued "on Friday afternoon, a time considered in Washington circles to be when the Defense Department disposes of uncomfortable business." This was certainly true, but it soon became clear that what was particularly "uncomfortable" about the "business" was not Hartmann’s removal as legal adviser, but the significance of his effective promotion to a new job.
Although the Associated Press reported that the new job "takes Hartmann away from direct supervision of the prosecution," other observers were not convinced. The Washington Post reported that Human Rights Watch had stated that "instead of trying to clean up house, the Pentagon has now moved a man accused of bullying prosecutors to bring cases to trial and dismissing concerns about evidence being tainted by torture into a position coordinating all matters relating to the commissions."
In addition, Col. Davis compared the reassignment to that of Russia’s former Premier and his newly promoted protégé, saying, "Elevating his deputy and leaving him in the process, I’m afraid, will be like the Vladimir Putin-Dmitry Medvedev relationship where there’s some real doubt over who pulls the strings." Speaking to the AP, Davis was even blunter, comparing Hartmann to a "cancer" that had infected the entire Commission process. "The only way to ensure cancer can do no harm," he said, "is to get it out of the body."
Noticeably, Hartmann himself confirmed that his reassignment was anything but a punishment. "I feel like it’s an elevation, a promotion, because it recognizes … the exponential growth of the commissions," the AP reported him as saying, and in the Washington Post he claimed that, although "the recent court rulings forced him and others at the Pentagon to think about his role," the reason for his new assignment was that "he and his superiors thought that the best way to run the system was to take this more senior leadership position."
Hartmann continued crowing in comments to the Miami Herald. Likening his new job to that of a "chief executive officer at a 250-staff corporate headquarters," and adding that he "had no fixed budget," he declared that his biggest challenge was "to keep the process moving, really intensely." He added, "Everybody needs to start seeing more trials. I want those courtrooms to be as filled up as they can possibly be six days a week."
While this is nothing short of despicable, given the condemnation of Hartmann’s pro-prosecution bias by three government-appointed judges, what no one has yet done in the last two weeks is to look behind the scenes to see what Hartmann’s reassignment reveals about the whole command structure of the Military Commissions. And when this is looked at in detail, Hartmann appears, shockingly, to be little more than a puppet (albeit a willing and hardworking one), whose reassignment is a reward to prevent him from being a sacrifice, which was bestowed upon him by his masters in the Pentagon, and in the Office of the Vice President who have no interest in establishing a fair or just process at Guantánamo.
Who’s Pulling the Strings?
To understand this story we need to look back, beyond Hartmann’s appointment, to February 2007, when Susan Crawford was appointed as the Commissions’ Convening Authority. In a revelatory article for Harper’s Magazine this February, Scott Horton examined the source of the "cancer" referred to by Col. Davis, and traced it back to a plea bargain struck, for political reasons, in the first trial by Military Commission to go ahead: that of the Australian David Hicks, who admitted to providing material support for terrorism in March 2007, in exchange for a nine-month sentence to be served back in Australia.
What happened, it was later revealed, was that Australian Premier John Howard, who was seeking reelection, had been struggling in the polls, partly because the previously ignored plight of Hicks had become a political hot potato. Anxious to help one of his few stout allies in the "War on Terror," Vice President Dick Cheney paid Howard a quick visit, and on returning home appointed a new Convening Authority for the Military Commissions, retired judge Susan J. Crawford, who, as Horton noted, was "a Cheney protégé," and was, moreover, "particularly close to Cheney’s chief of staff David Addington," the prime architect not only of the Commissions, but also of the majority of the administration’s post-9/11 flight from the Geneva Conventions and the UN Convention Against Torture.
With Crawford in place and assistance from William J. Haynes II, the Pentagon’s General Counsel, who was "known for his tight connections with the Vice President’s Office" a plea bargain was negotiated with Hicks’ lawyers, and the sidelining of Col. Davis began in earnest.
As Hicks’ trial got underway, Col. 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," as Scott Horton described it. He was both humiliated and dismayed when the plea bargain was revealed, as neither he, nor any of the other prosecutors, had been informed of the deal cut by Cheney, Addington, Crawford and Haynes.
This, of course, explains why, although Col. Davis maintained a dignified silence at the time, his frayed patience began to unravel in July, when Brig. Gen. Hartman assumed his new role as Susan Crawford’s legal adviser. Hartmann took charge of the prosecution office while Davis was away, recovering from surgery, and he proceeded to take advantage of Davis’ absence to shake things up as he and his masters saw fit.
The most significant date, however, is October 3, the day before Col. Davis’ resignation, as it was then, as Scott Horton described it, that Haynes "crafted and secured Deputy Secretary of Defense Gordon England’s signature on two documents," which sealed a significant change in the command structure of the Commissions. The first established that Hartmann would report to Paul Ney, the Defense Department’s Deputy General Counsel (Legal Counsel), who in turn reported to Haynes, and the second placed Col. Davis in the chain of command under Hartmann. This second memorandum, as Horton explained, "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."
The Former Chief Prosecutor Turns
This, then, was the specific reason why, in a blistering op-ed in the Los Angeles Times two months after his resignation, Col. Davis stated, "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. 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."
Although Col. Davis was critical of Brig. Gen. Hartmann, he explained that the particular trigger for his decision was the memo described above, informing him that he had been placed in a chain of command under Haynes. Stating 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."
Haynes, of course, was not only involved in the approval of "enhanced interrogation techniques" for use at Guantánamo; he also helped develop the concept of holding prisoners as "enemy combatants" without charge or trial, and without the protections of the Geneva Conventions, and played a part in the process that led to holding an American citizen, Jose Padilla, as an "enemy combatant" on the US mainland.
Col. Davis was also critical of the role played not only by Hartmann and Haynes, but also by Susan Crawford, and he was dismayed by what he described as Hartmann and Crawford’s 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 skepticism if it is conducted behind closed doors."
Davis also directed a specific attack at Susan Crawford, 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, 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." He continued: "Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused."
In this first, considered outburst, Col. Davis laid out, with admirable clarity, a contaminated chain of command indifferent to the use of torture by US forces, dedicated to using the poisoned fruit of that torture in trials at Guantánamo, and committed, essentially, to conducting "a rigged process stacked against the accused" that led from Hartmann to Crawford and Haynes, and from there to Dick Cheney and David Addington.
And if further proof were needed that Haynes was the link connecting the supposedly impartial Convening Authority and her legal adviser from the ferociously biased Vice President and his chief of staff, this came in February this year, when Col. Davis told Ross Tuttle of the Nation about a conversation he had with Haynes in August 2005.
"[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, which 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.’"
Although Haynes announced his sudden retirement shortly after his conversation with Col. Davis was revealed, his place as the intermediary between the Office of Military Commissions and the Vice President’s Office has been seamlessly filled by the Pentagon’s Acting General Counsel, Daniel Dell’Orto.
A "career official at the Pentagon," as Philippe Sands described him in Vanity Fair, Dell’Orto had accompanied Haynes and then-White House Counsel Alberto Gonzales when they presented the media with a carefully calibrated justification of the administration’s actions in the wake of the Abu Ghraib scandal in June 2004, and in July 2006, after the Supreme Court had struck down the Commissions’ first incarnation as illegal (in Hamdan v. Rumsfeld), he told the Senate Committee on the Judiciary that the Commissions were "an indispensable tool for the dispensation of justice in the chaotic and irregular circumstances of armed conflict." Ignoring the fact that prisoners seized in wartime should be granted the protections of the Geneva Conventions, he also claimed, "It would greatly impede intelligence collection essential to the war effort to tell detainees before interrogation that they are entitled to legal counsel, that they need not answer questions, and that their answers may be used against them in a criminal trial."
The Dark Heart
What I find particularly fascinating, however, is the way in which Susan Crawford has, to date, been shielded from allegations of impropriety by the activities of Brig. Gen. Hartmann. I’m grateful to Scott Horton not only for demolishing notions of Crawford’s independence by pointing out her close ties with Dick Cheney and David Addington, but also for including a specific anecdote that demonstrates the strength of her relationship with the Vice President’s chief of staff. "At an event held last year to mark Crawford’s retirement as a military appeals judge," Horton wrote, "she went out of her way to note the presence of and thank just one person, her friend David Addington."
In addition, one reporter, William Glaberson, raised pertinent questions about Crawford’s role after Salim Hamdan’s trial this summer. "There were unknowns," Glaberson wrote in the New York Times. "A Pentagon official, Susan J. Crawford, has broad power over the entire tribunal process, including naming the military officers eligible to hear the case. Her title, convening authority, has no civilian equivalent. Her decisions to grant or deny financing for items like the defense’s expert witness fees or defense lawyers’ transportation were not explained during the trial. She has never granted an interview to a reporter."
Crawford’s mentor, David Addington, never grants interviews either, but Brig. Gen. Hartmann’s cynical promotion, and Lt. Col. Vandeveld’s resignation, will hopefully bring the crucial role in the Commission process that is played by Susan Crawford, David Addington and Dick Cheney into sharper relief. This is of critical importance, as the deliberate suppression of evidence that is essential to the defense appears to be endemic.
In Mohamed Jawad’s case, this has been highlighted twice first in August, when Col. Henley not only excluded Hartmann from involvement in Jawad’s case, but also ordered "potentially exculpatory information" to be sent to Susan Crawford, and last Wednesday by Lt. Col. Vandeveld, who, as the Los Angeles Times reported, "said military prosecutors routinely withhold exculpatory evidence from the defense in terrorism cases."
In August, Henley refused to order the charges against Jawad to be dropped entirely, and, instead, made a request for Crawford to review the charges, indicating that it was up to her to decide whether to "drop or reduce them," but I believe that this analysis of the Commission’s chain of command, and the exposure of Crawford’s spectral impartiality, casts serious doubt on the trust that Henley placed in Crawford, and indicates that, seven weeks after Henley made his ruling, the Convening Authority either has not received the exculpatory information, or has chosen to ignore it.
We end, therefore, where we began, with Lt. Col. Vandeveld, and his courageous refusal to play out his role in a rigged and one-sided process that would imprison a young Afghan for life by suppressing inconvenient evidence such as the fact that he may not have actually been responsible for the alleged crime of which he is accused. What happens next is unknown, but it’s certain that lawyers for other prisoners facing trial by Military Commission Omar Khadr, for example, and British resident Binyam Mohamed, whose lawyers recently took his case to the British High Court in an attempt to secure access to exculpatory evidence will be doing their damnedest to ensure that they pursue those responsible for rigging the system all the way up the chain of command.