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In Karl Rove’s playbook, no turf is free from politics. The more sacred and by tradition the more beyond the political fray, the better suited for partisan grist. National security, for instance. The military. Foreign conflicts. So why not stage-manage the prosecution of terrorists as a media spectacle to serve as a thematic backdrop for the upcoming presidential campaign? The Romans, after all, entertained the Plebian masses with spectacles in the arena. Throwing assorted barbarians and the occasional Christian to the lions was good for business, it seems.
Absurd, you say? Well, we can now move this out of the column marked “speculation” and into the column of “factual contention backed by sworn testimony.” In fact, backed by unrebutted testimony–given that the Pentagon bigwigs involved have decided, thus far at least, not to dispute the heavy accusations which have been levelled at them.
Indeed, yesterday’s Miami Herald put the question very pointedly: “Are the prosecutions now pending before Military Commissions in Guantánamo part and parcel of a media strategy for the Republican Party’s fall election effort?” The question rests on solid premises.
In pleadings filed by military lawyers in Guantánamo on Thursday afternoon, the allegations of political manipulation of the proceedings by the Bush Administration—charges first leveled by the Guantánamo chief prosecutor, and now reinforced by the military defense counsel—continue to mount.
Here are some of the new allegations, based on sworn accounts from military officers:
-On September 29, 2006, [the chief prosecutor] Colonel Morris Davis attended a meeting of the Special Detainee Follow-Up Group. The meeting was held in Deputy Secretary of Defense Gordon England’s office and was attended by Mr. England and Mr. Haynes. During the meeting, Mr. England raised the issue of charging so-called high value detainees: “We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election.”
-Stephen Cambone, then the Under-Secretary of Defense for Intelligence. . . repeatedly advocated for the Department of Justice to have a greater role in the military commission process. He stated that military attorneys did not have the sophistication to deal with the cases before the commissions and that, if they had skill, they would be in the private sector. Colonel Davis resisted involvement in the military commission process by the Department of Justice.
-On January 9, 2007, Mr. Haynes called Colonel Davis and asked him how quickly he could charge David Hicks. Colonel Davis replied that the Secretary of Defense had not yet promulgated the Rules for Military Commissions or the Regulation for Military Commissions and that he could not charge Mr. Hicks before the Secretary of Defense had issued the Manual for Military Commissions.
-On March 26, 2007, David Hicks pleaded guilty to one charge of material support for terrorism. Colonel Davis was not informed of the pre-trial agreement until he arrived
at Guantanamo Bay to attend the scheduled arraignment of Mr. Hicks. After Colonel Davis spoke publicly about not being included on pretrial negotiations, the Convening
Authority privately counseled Colonel Davis on publicly breaking ranks with the Office of the Convening Authority.
-On July 1, 2007, General Thomas Hartmann became the Legal Advisor to the Convening Authority. He immediately began what Colonel Davis describes as “nanomangement” of the Office of the Chief Prosecutor. He wanted to know the status of every case being worked up within the Office of the Chief Prosecutor. He wanted to review the evidence against each detainee and even the three main points each attorney intended to make during closing arguments. He wanted to know who was making the decisions on each case. If he thought one counsel was not a strong advocate, he would ask to have another attorney assigned as lead counsel. He wanted Colonel Davis to charge cases that were “sexy” or cases that had “blood on them.” He specifically liked the case against Mohammed Jawad, which involved the alleged throwing of a hand grenade at two U.S. servicemen and their interpreter.
-Colonel Davis had a policy against using evidence obtained through torture. General Hartmann took the position that prosecutors should not make the decision about whether evidence was reliable. He insisted that such decisions be left to military judges. Months later, during testimony before the Senate Judiciary Committee, General Hartmann reiterated his position that the military judge—not the prosecutor—would be the gatekeeper for such evidence. In response to a question from Senator Feinstein as to the admissibility of evidence obtained from waterboarding, General Hartmann twice declined to answer because “the discretion of a prosecutor is inappropriate to be dealt with in public.” When pressed, he responded “Ma’am, again, the issues that deal with that are fundamentally based on reliability and probativeness of evidence. And the question that will be before the judge when that comes up is whether the evidence is reliable and probative, and whether it’s in the best interest of justice to introduce the evidence.” Similarly, when Senator Feinstein asked him, “So in other words, if you believe you can prove something from evidence derived from waterboarding, it will be used?,” General Hartmann replied, “If the evidence is reliable and probative, and the judge concludes that it is in the best interest of justice to introduce that evidence, ma’am, those are the rules we will follow.”
-In September 2007, Colonel Davis delivered a formal complaint regarding the interference of General Hartmann in his office to the Convening Authority. When he called the Convening Authority a week later to inquire as to the status of his complaint, she informed him that General Hartmann did not work for her and that the complaint had been forwarded to General Hartmann’s boss, Mr. William Haynes.
The factual presentation is stark and extremely alarming. Not only does it document the crudest political manipulation of the Guantánamo proceedings, it actually shows that the critical calculus is the partisan agenda of the Republican Party. Whereas these papers reflect Gordon England’s comments, in earlier comments Rumsfeld’s lawyer, Jim Haynes, is quoted making comments which are almost identical in substance. And Haynes has not disputed these claims.
Apparently, the Gitmo defendants were to be trotted out for a prime-time kill midway in the election cycle, like victims dragged into the Roman circus maximus to be devoured by the lions. (Death penalties were certainly contemplated, and I’m still not ruling out the lions either, though the logistical challenges might in the end have proved a bit much).
Note the remarks of Stephen Cambone, a key figure in the introduction of torture in the detention system, previously cited in criminal complaints filed by European authorities, disparaging the service of uniformed officers. “If they were worth anything, they’d have civilian jobs,” he says. This sums up the soldiers-are-cannon-fodder argument which is rampant among the Bush Administration hacks in the Pentagon. Cambone was often labeled as Rumsfeld’s favorite at the Pentagon.
Brigadier General Hartmann, whose appearance before the Senate Armed Services Committee previously drew scowls from a number of members of both parties, seems to have been hand-picked and brought in to manage the Commissions based on his ability to toady. Hartmann was not a serving JAG officer, but a reservist. These pleadings give us a good sense of why he was brought in. In Hartmann’s prior appearances, he has asserted that he can faithfully discharge an appellate function, reviewing the determinations of the tribunal and recommending action by the convening authority. Now we learn that he does not work for the convening authority, but for political flaks bent on scoring campaign season points from the prosecution. He clearly finds nothing the matter with this approach. The pleadings detail how Hartmann participated in the actual preparation of the charge sheet, a point which makes a number of his prior statements appear misleading if not outright dishonest.
At the core of these actions is distrust of the JAG lawyers who serve as prosecutors, judges, and advisors in the Military Commissions process. What exactly is the nature of this distrust? Political disloyalty. Not disloyalty to the United States–disloyalty to the Republican Party. The distrust is curious since, among other things, I have rarely met a JAG who wasn’t a Republican. The problem is apparently not nominal political affiliation but the fact that the JAGs take seriously their professional duty to exercise independent judgment in the discharge of their duties as prosecutors, defense counsel and judges. And to the Bush Administration that is a very big threat.
In the view of the Bush Administration, this is all about securing convictions according to the proper broadcast and election timetable. Acquittals must be excluded. Hence, the rules are rewritten to bring all these lawyers under the “command” of Republican hacks in the Defense Department. Thomas Hartmann, who enjoys the highest confidence of his political superiors, is pulled out of the reserves and placed in the most sensitive position in the entire structure. A deeper search into his background might well disclose the reasons for that choice.
But even that is not enough, so Justice Department lawyers (likely the closest clones available for John Yoo, Jay Bybee and Steven Bradbury) are assigned to “coordinate” their work. They are the Bush Administration’s political commissars, there to keep an eye on the JAG prosecutors and report on any deviations from the party line.
The Gitmo Commissions look more farcical with each passing day. The military lawyers involved in them appreciate that fully, as is brilliantly shown in these papers. Where is Congress in this? It mandated professionalism, independence and precluded political influence. The measures imposed by the Bush Administration makes a mockery of that mandate, and promise, yet again, to embarrass the United States in the most spectacular fashion.
Perhaps you thought the worst Gitmo embarrassments were now past. Brace yourself: the worst is yet to come.
More from Scott Horton:
No Comment — November 4, 2013, 5:17 pm
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No Comment — August 12, 2013, 7:55 am
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No Comment — July 29, 2013, 11:36 am
Is it possible to simply disband the partisan FISA court?
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Notes on South Africa’s failed revolution
“I will never know what goes on in your mind, or what that shield of a smile behind which we try to advance should tell us.”