No Comment — November 8, 2007, 1:39 pm

Marine Lawyer Gagged by Pentagon

Today a House Judiciary Subcommittee is holding hearings on torture—excuse me, highly coersive interrogation techniques—and how it affects potential trials before the Military Commissions. Marine Lieutenant Colonel V. Stuart Couch was invited to give testimony before the Congressional committee.

The Wall Street Journal reports this morning on what happened next:

Col. Couch says he informed his superiors and that none had any objection. Yesterday, however, he was advised by email that the Pentagon general counsel, William J. Haynes II, “has determined that as a sitting judge and former prosecutor, it is improper for you to testify about matters still pending in the military court system, and you are not to appear before the Committee to testify tomorrow.” Mr. Haynes is a Bush appointee who has overseen the legal aspects of the Pentagon’s detention and interrogation policies since Sept. 11, 2001. The email was reviewed by The Wall Street Journal.

Pentagon spokesman Bryan Whitman said it was Defense Department policy not to let prosecutors speak about pending cases.

Couch was going to testify about the dilemma he faced as a prosecutor when he learned that a potential defendant against whom he was trying to build a case had been tortured. Couch was assured not to worry, the fact that the detainee had been tortured would be suppressed, so that the court would never learn about it. That would, of course, have entailed a conscious fraud on the Court—which appears to be standard Department of Defense operating procedure these days. But Col. Couch didn’t want to play that game.

Now let’s consider Bryan Whitman’s response. I’ve been tracking Mr. Whitman’s pronouncements for some time and find that they have a quite extraordinary fiction-to-fact ratio. This statement is a classic case in studied evasion. There is no doubt that sound policy opposes letting prosecutors speak to the press about pending cases. Indeed, it’s more than just “policy.” It’s a matter of ethics found in the Code of Professional Responsibility. But in this case, there is no “pending case.” Couch was not speaking to the press, he was testifying before a Congressional oversight committee on their invitation. Whitman is attempting to mislead his audience about the underlying facts and to make a decision which was political and manipulative sound like something perfectly natural.

But is it true that the Pentagon has a “policy” about not allowing prosecutors to speak about cases? If we go back and study the record, we find that just isn’t so. In fact the chief prosecutor for the Gitmo Military Commissions cases was Col. Moe Davis, and he was out speaking to the press 24/7, doing everything in his power to publicly portray the defendants as horrible hardened criminals. Was that against “policy”? It should have been. But in fact the Pentagon had a very carefully coordinated policy of doing just the opposite.

The objection here is really something different. It’s exposing the Pentagon’s practices authorizing torture and then lying about it. If Col. Couch were to embrace the Pentagon’s line, they’d have no problem with him speaking. The problem is that he was prepared to testify honestly about the torture program, and that was a show-stopper.

Note that the determination was made by William (“Jim”) Haynes, Donald Rumsfeld’s lawyer, who continues to serve as general counsel after the Senate Judiciary Committee gave a thumbs-down to his nomination for a federal judgeship in the Fourth Circuit (“Over my dead body,” in the words of one Fourth Circuit Republican). Mr. Haynes is one of the prime torture conspirators, and the author of a December 2002 memorandum endorsed by Rumsfeld that has already provided the basis for two criminal indictments of the former Defense Secretary. Haynes is one of the Bush Administration officials most likely to be indicted for his role in the torture scandal when he steps down from office. Mr. Haynes has a strong reason to prevent Col. Couch from testifying, since almost anything he would have to say would be embarrassing to, and might even incriminate, Mr. Haynes.

But then let’s consider the other side of this. The Constitution, federal law and three rulings of the Supreme Court all make clear that oversight of the Military Commissions process is vested in Congress. So on what basis do Pentagon officials obstruct Congress’s exercise of its oversight function? Mr. Whitman evidently feels under no compunction to explain that. Perhaps because he has no explanation.

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