Politicizing Gitmo: A TimelineIf you thought the military commissions in Guantanamo Bay couldn’t get any uglier, you were wrong. On Friday, the judge presiding over the Salim Hamdan case, Capt. Keith J. Allred, disqualified a top Pentagon official from any more involvement in the case. The reason? His aims seemed too political, his cheerleading for the prosecution too obvious to allow him to remain involved.
The official is Brig. Gen. Thomas Hartmann, the Legal Advisor to the Convening Authority. That office oversees the whole process, meaning both prosecutors and defense attorneys. But as the judge’s ruling makes clear, Hartmann wasn’t anything close to impartial:
You can read the judge’s ruling, which was first reported on by The New York Times, in full here. The judge requires that Hartmann be replaced on the case by someone outside his office.
As the Times reports, the ruling will open the flood gates to new challenges to the process from lawyers for other detainees.
Even beyond the judge’s conclusion, the ruling is a remarkable document because it involves a blow-by-blow account of the politicization of the process. Mainly this information comes from Col. Morris Davis, who was the chief prosecutor for the commissions until he resigned because of the meddling of Hartmann and former Pentagon general counsel William Haynes. But other attorneys involved in the commissions provided similar accounts. Davis, called by Hamdan’s lawyers, testified there late last month.
Below is an abbreviated timeline of efforts by Hartmann, Haynes and other Pentagon officials to use the Gitmo trials for political gain, as well as their efforts to squelch Davis’ complaints about Hartmann’s interference. It is all culled from the judge’s ruling.
August, 2005 — During Col. Davis’ interview to be the chief prosecutor for the Gitmo military commissions, Pentagon general counsel William Haynes told Davis “We can’t have acquittals. We’ve got to have convictions. We can’t hold these men for five years and then have acquittals.”
September 28, 2006 — Deputy Secretary of Defense Gordon England says during a meeting “there could be strategic political value in getting some of these cases going before the [November 2006] elections. We need to think about who could be tried.” Haynes responds that those are Davis’ decisions to make.
During the same meeting, then-Under Secretary of Defense Steven Cambone says that military lawyers are not experienced enough to handle these sorts of cases and that they needed Justice Department lawyers to be involved. DoJ lawyers have since been assigned to military commission trial teams.
January 9, 2007 — The same day that Haynes’ nomination for a seat on a federal appeals court is withdrawn because of opposition from Democrats due to his role in authorizing the use of torture, Haynes calls Davis and asks how soon they could bring charges against the Australian Gitmo prisoner David Hicks. When Davis responded that it would take awhile because the military commissions process had still not been set up, Haynes pressed, and Davis replied that he could have charges ready within two weeks after receiving the Manual for Military Commissions.
Thirty minutes later, Haynes’ deputy called “to assure Colonel Davis that Mr. Haynes had been out of line, and to disregard everything Mr. Haynes had said.”
Late January, 2007 — Haynes calls Davis again to ask about charges against Hicks and “asked if others could be charged.” Weeks later, charges were renewed against Salim Hamdan — who’d originally been charged in 2004 before that commissions system was ruled unconstitutional by the Supreme Court.
July 2, 2007 — Brig. Gen. Thomas Hartmann begins duty as Legal Advisor. This same month, Davis went on medical leave after having surgery. During his absence, Hartmann frequently visited the prosecutor’s office, taking “micro management to the level of ‘nano-management.'”
July 18, 2007 — Hartmann announces “that he was going to select the next cases to go forward. He wanted cases that would be ‘sexy’ enough to capture the public interest, or cases in which an accused might have blood on his hands, rather than cases involving low level actors transporting documents, etc.”
July 19, 2007 — Hartmann tells prosecutors during a meeting that he wears “two hats”: “one as Legal Advisor to the Convening Authority, and one in charge of the prosecution.”
Late July, 2007 — Davis returns to work early in order to counter Hartmann’s influence in the office. Hartmann tells him that he disagrees with Davis’ decision not to use evidence derived from the use of coercive techniques (including waterboarding). Anything should be considered admissible and the judge should sort that out, he said.
August, 2007 — Hartmann tells Davis that he wants the cases to move faster “even if it meant using closed sessions to admit classified evidence” — Davis preferred the slower process of declassifying evidence to be used at trial.
Late Summer, 2007 — Davis writes a complaint about Hartmann’s micro management of the prosecutions and forwards it up the chain of command. A formal investigation results. The three-officer panel led by chief judge of the Army Court of Criminal Appeals Brigadier General Butch Tate finds no problem with Hartmann’s actions.
September 11, 2007 — Davis files a 42-page complaint with the Defense Department’s inspector general. The IG forwards it to Haynes “because it dealt with ‘legal’ issues.” Haynes tells the IG that the matter has been resolved and the investigation is closed.
Early October, 2007 — Haynes’ deputy invites Davis to discuss the complaint and its resolution (Haynes was noticeably absent from the meeting). Davis is told that he’s now under the command of Hartmann and Haynes.
Davis resigns, finding it impossible to work under Haynes because he’d “advocated both the use of torture and the use of evidence obtained by torture,” among other things.
