When Salim Hamdan, Osama bin Laden's alleged driver, returned to court recently for yet another hearing in his long odyssey through the ad hoc US legal system for suspected terrorists, he had an unlikely ally -- Col. Morris Davis, the former chief prosecutor who charged him with war crimes in May 2007. Davis was there to testify as a defense witness in a motion to dismiss those charges because of unlawful interference by Bush Administration appointees, including Brig. Gen. Thomas Hartmann, legal adviser to the office that oversees the military commissions process.
Since his resignation in October, Davis, once a staunch advocate of the commissions, has become an outspoken critic of the Pentagon's handling of the Guantánamo cases. Although he doesn't doubt Hamdan's guilt, he believes the current system will be unable to administer fair and open trials. The Pentagon has previously disputed Davis's account and on April 28 sought to discredit him in court. "Colonel Davis was ineffective [as chief prosecutor]," said current chief prosecutor Col. Lawrence Morris, adding that "clearly [Davis] didn't like or get along with General Hartmann."
However, despite attempts to dismiss Davis's claims as a personality conflict, documents obtained by The Nation, as well as testimony entered into the record at Hamdan's pretrial hearing, reveal that Davis's opinions were shared by other prosecutors in the military commissions system. In fact, the two lead prosecutors in the Hamdan case -- Lt. Cmdr. Timothy Stone and Lt. Col. William Britt -- had on previous occasions complained of political interference by Hartmann and of the general "state of disarray" in the prosecutor's office since his arrival. Along with a detailed complaint Davis submitted to the Pentagon's inspector general last August, these documents describe an acute level of dysfunction in the military commissions office, in which prosecutors repeatedly raised concerns about "ethical violations," the "suspect public reputation" of the process, "further embarrassment to the office of the chief prosecutor" and the potential "disqualification of the legal advisor [Hartmann]."
In an August 2007 memorandum, Stone alerted then-chief prosecutor Davis of his intent to seek an opinion from the Navy JAG about "ethical concerns regarding the professed intentions of the Legal Advisor [Hartmann]." According to the memo, Hartmann had planned to meet Hamdan's civilian defense counsel in Cuba in September to negotiate a plea. "He told the prosecution team (LTC Britt and I) that we were not invited," the memo reads. Clearly frustrated, Stone wrote that Hartmann's knowledge of the Hamdan case was "totally insufficient" and that unless Hartmann was given additional information, "my client...the United States, will not be adequately represented." But if Stone were to provide Hartmann with the necessary case documents, he would have assisted Hartmann in "usurping the role" of the prosecutor and would thus "facilitate...the disqualification of the Legal Advisor," ultimately weakening Stone's case and causing "turmoil for the Commissions process."
Although Hartmann's backdoor negotiations never took place, Stone's ethical dilemma underscores the problem inherent in the job of the legal adviser. On the one hand, Hartmann is required to "independently and objectively provide cogent legal advice to the convening authority," says Susan Crawford, an appointee who by law is required to remain neutral. On the other hand, the legal adviser also supervises the prosecution, a directive Hartmann has seemingly interpreted to mean that he is the de facto chief prosecutor.
"When legal advisor is meant to give independent and objective advice to the convening authority and then talks to the prosecutor about how to prosecute the case -- that creates a conflict of interest," says John Hutson, president of Franklin Pierce Law Center and the former Navy JAG. "He has overstepped his bounds and possibly created unlawful command influence."
SCROLL TO CONTINUE WITH CONTENT
Get our best delivered to your inbox.
A second document, an unpublished op-ed written by Stone in response to a September 2007 Wall Street Journal article, confirms that the "prosecution office has been in a state of disarray since the arrival of Brigadier General Hartmann." Stone's op-ed corroborates Davis's claim that Hartmann was fixated on prosecuting "sexy" cases that would politically benefit the Bush Administration. This claim is further bolstered by a statement from Britt, read in court by defense attorneys, that explains Hartmann's rationale for pursuing particular cases. According to Britt, Hartmann said, "The reason is, this case will seize the imagination of the American people and that case won't."
A third document, a memo Davis submitted to the Pentagon inspector general, recounts clashes with Hartmann over day-to-day functions of the prosecutor's office. According to Davis, at one meeting "Hartmann said: 'I wear two hats. In one I'm responsible for providing legal advice to the convening authority and in the other I'm responsible for the prosecution.'" Davis's memo says Hartmann wanted to increase the rate at which cases were charged, over prosecutors' objections that many weren't ready, sometimes because evidence hadn't been declassified.
Davis's inspector general complaint was ignored because, as he was told, the matter had been "satisfactorily resolved" by a previous investigation, which ruled in favor of Hartmann. But it also warned the legal adviser to "diligently avoid aligning himself with the prosecutorial function." Current chief prosecutor Morris contends that Hartmann is not unlawfully influencing his office and that Britt's and Stone's comments merely "reflect an understandable and intense sense of ownership of a case." (Britt and Stone are prohibited by military gag order from speaking to the press; Hartmann declined to comment.)
According to Lt. Cmdr. Brian Mizer, the lead defense counsel for Hamdan, even if his motion to dismiss based on unlawful influence is denied, the issue will be raised in subsequent cases. "The government has somewhat of an argument" because Hamdan was charged before Hartmann arrived, Mizer concedes. "But that's like saying, 'Yeah, the house is on fire, but this room is OK.'" Indeed, despite Hartmann's push to accelerate the trials with a flurry of recent charges, the tribunals remain mired in other unresolved issues -- concerns about the use of coerced testimony, counsel's access to clients, adequate resources and training for the defense, withheld evidence and undisclosed witnesses -- that continue to plague their legitimacy.
Then there are the defendants. On the second day of the hearing, Salim Hamdan announced his decision to boycott his trial -- as have now four others. "There is no justice in this court," said the 38-year-old Yemeni. "If you want to try me, you can by civil law or any law that is recognized."
Ross Tuttle is a documentary filmmaker and freelance journalist based in Los Angeles.
Copyright © 2008 The Nation