{"id":4719,"date":"2008-10-13T20:03:20","date_gmt":"2008-10-13T19:03:20","guid":{"rendered":"http:\/\/rinf.com\/alt-news\/?p=4719"},"modified":"2008-10-13T20:03:20","modified_gmt":"2008-10-13T19:03:20","slug":"new-evidence-of-systemic-bias-in-guantanamo-trials","status":"publish","type":"post","link":"http:\/\/rinf.com\/alt-news\/surveillance-big-brother\/new-evidence-of-systemic-bias-in-guantanamo-trials\/","title":{"rendered":"New Evidence of Systemic Bias in Guant\u00c3\u00a1namo Trials"},"content":{"rendered":"

By Andy Worthington\u00a0– andyworthington.co.uk<\/a>\u00a0|<\/p>\n

Andy Worthington, author of The Guant\u00c3\u00a1namo Files<\/a>, continues his analysis of the corrupt command structure of the Military Commissions at Guant\u00c3\u00a1namo, with new information from Maj. David Frakt, one of the Commissions\u2019 military defense lawyers.<\/em><\/p><\/blockquote>\n

In the last three weeks, two events have occurred that have dealt what should have been a knockout blow to the Military Commissions at Guant\u00c3\u00a1namo, the system of trials for \u201cterror suspects\u201d \u2013 outside of the US court system and the US military\u2019s own judicial system \u2013 that was created by Vice President Dick Cheney<\/a> and his close advisers (in particular, his legal counsel David Addington) in November 2001.<\/p>\n

On September 24, Lt. Col. Darrel Vandeveld, the prosecutor in the case of Mohamed Jawad<\/a> (an Afghan accused of throwing a grenade at a jeep containing two US soldiers and an Afghan interpreter), resigned, expressing his frustration and disappointment that \u201cpotentially exculpatory evidence\u201d had \u201cnot been provided\u201d to Jawad\u2019s defense team, and on September 19 Brig. Gen. Hartmann, the Commissions\u2019 legal adviser, was \u201creassigned\u201d after three Commission judges \u2013 all US military officers, appointed by the government \u2013 had disqualified him from two trials (and one post-trial review) because of his transparent pro-prosecution bias. This was particularly worrying, because his job description \u2013 as laid down in the Military Commissions Act of 2006, which revived the Commissions after the Supreme Court ruled them illegal \u2013 stipulated that he was required<\/a> to \u201cremain neutral and unbiased.\u201d<\/p>\n

Last week, following further analysis \u2013 including important work by law professor Scott Horton<\/a> \u2014- I wrote a detailed article, The Dark Heart of the Guant\u00c3\u00a1namo Trials<\/a>, in which I drew on examples of pro-prosecution bias on the part of Hartmann\u2019s boss, Susan Crawford, the Commissions\u2019 Convening Authority, and traced this systemic bias up the chain of command, via the Pentagon\u2019s General Counsel, to Dick Cheney and David Addington, the creators of the entire Commission process. Cheney and Addington\u2019s zeal for unfettered executive power indicated, in no uncertain terms, that the impartiality of both Hartmann and Crawford was nothing more than a cloak to disguise the Commissions\u2019 naked political aims: securing convictions in a rigged system designed to prevent acquittals.<\/p>\n

As the Washington Post<\/a> recently explained, the Convening Authority is \u201crequired 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,\u201d but a clear example of Crawford\u2019s pro-prosecution bias was revealed by Col. Morris Davis, the Commissions\u2019 former chief prosecutor, who resigned in October 2007, primarily because of political interference in the process.<\/p>\n

Writing in the Los Angeles Times<\/a> last December, Davis wrote that Crawford, unlike her predecessor Maj. Gen. John Altenburg, whose staff had \u201ckept its distance from the prosecution to preserve its impartiality,\u201d had overstepped her administrative role, and \u201chad her staff assessing evidence before the filing of charges, directing the prosecution\u2019s pre-trial preparation of cases\u201d and \u201cdrafting charges against those who were accused and assigning prosecutors to cases.\u201d Davis\u2019 stark conclusion \u2013 that \u201cIntermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused\u201d \u2013 was unerringly accurate, but with Hartmann shielding her from criticism (and taking all the flak himself), Crawford has so far avoided calls for her resignation, even though, as Scott Horton pointed out in February, she is \u201ca Cheney prot\u00c3\u00a9g\u00c3\u00a9e,\u201d and is, moreover, \u201cparticularly close to Cheney\u2019s chief of staff David Addington.\u201d<\/p>\n

Shortly after my article about the corrupt command structure of the Commissions was published, I received an enlightening email from Maj. David Frakt, Mohamed Jawad\u2019s military defense lawyer, which provided additional details confirming the bias of both Brig. Gen. Hartmann and Susan Crawford.<\/p>\n

More criticism of Brig. Gen. Hartmann<\/strong><\/p>\n

\"\"<\/p>\n

Maj. Frakt was kind enough to point out that \u201cHartmann was fired,\u201d and that \u201chis claim that he was promoted is nonsense.\u201d He cited testimony by Hartmann in Jawad\u2019s case on June 19, and in a subsequent affidavit, in which he stated that he had three different duties as legal adviser: he was responsible for logistics, planning and resources, he was the supervisor of the prosecution, and he was the legal adviser. As Maj. Frakt explained, \u201cHis promotion consisted of removing two of those three duties. He is now responsible only for logistics, planning and resources.\u201d<\/p>\n

He added that most of this work is done by the Commissions Support Group (CSG) at Guant\u00c3\u00a1namo, headed by Brig. Gen. Zanetti, who testified in a hearing on Jawad\u2019s case in August that \u201cHartmann had tried to have the CSG assigned to his \u2018command\u2019 even though he was in Washington and lawyers do not generally command anything,\u201d and confirmed that Hartmann \u201cwas definitely trying to take charge of the whole process.\u201d I found Zanetti\u2019s comment that \u201clawyers do not generally command anything\u201d (as paraphrased by Maj. Frakt) to be particularly telling, as it reflects the way in which lawyers (Addington, John Yoo, Alberto Gonzales) have actually played crucial roles in driving the cruelest manifestations of the administration\u2019s \u201cWar on Terror\u201d policies.<\/p>\n

Maj. Frakt also drew my attention to other examples of Hartmann\u2019s overreach: in particular, a timeline for the trials that he created in November 2007, and reports about the ways in which he had briefed commanders at Guant\u00c3\u00a1namo on his plans, both of which exceeded his remit as an impartial adviser.<\/p>\n

According to Capt. Patrick McCarthy, the Staff Judge Advocate of Joint Task Force Guant\u00c3\u00a1namo, who made a deposition in Jawad\u2019s case on June 30 at Maj. Frakt\u2019s request, Hartmann (who, he said, was \u201cremarkably aggressive\u201d to him during meetings at Guant\u00c3\u00a1namo) briefed him in November 2007 on \u201ca plan for a way forward on the number of cases that would be charged in each month.\u201d He explained, \u201cHe has a large foldout chart that\u2019s probably three or three and a half, four feet long. It\u2019s a well-known chart and it has on that chart the kind of lay down of how many cases will be proceeding and sort of monthly times as they will proceed.\u201d<\/p>\n

Hartmann admitted the existence of this timeline during the hearing on June 19, and as Maj. Frakt demonstrated in a motion to dismiss in August, when he compared the dates on Hartmann\u2019s chart with the dates the prisoners were actually charged he realized that they were remarkably similar. \u201cIt is easy to come up with a sinister explanation for the congruence of the chart and the scheduling order,\u201d he wrote, adding, \u201cIt is hard to come up with an innocent one.\u201d<\/p>\n

Capt. McCarthy also testified that, as well as being bullying and dismissive to himself and, it seemed, every other officer below the rank of General or Admiral at Guant\u00c3\u00a1namo, Hartmann had held several secure video teleconferences with the commanders at Guant\u00c3\u00a1namo, and two face-to-face meetings, which, it appeared, were also part of his mission to \u201cbrief\u201d commanders on how and when the trials would proceed, rather than allowing these issues to be developed by the prosecutors. As McCarthy described it, Hartmann \u201cwould closely identify himself with prosecutorial efforts,\u201d was \u201cinvolved at a level of detail that no other general or flag officer that I\u2019ve ever worked for or with has ever been involved at,\u201d and gave the impression that he was \u201cresponsible for moving forward with military commissions in all respects.\u201d<\/p>\n

More disturbing revelations about the Convening Authority<\/strong><\/p>\n

\"\"<\/p>\n

Maj. Frakt also revealed more disturbing details about Susan Crawford\u2019s role. After revisiting the August ruling of Col. Stephen Henley, the judge in Jawad\u2019s case, who disqualified Hartmann for a second time, and \u201cordered that the defense be given an opportunity to submit matters in extenuation and mitigation, and that Crawford reconsider her referral decision and either ratify the earlier decision or take other appropriate action without further input from Hartmann,\u201d Maj. Frakt explained that in early September \u201cthe prosecutors sought reconsideration of the judge\u2019s ruling, filing a brief which included an affidavit from Hartmann and an affidavit from Crawford herself.\u201d<\/p>\n

This is enormously significant, as it provides another concrete example of Crawford\u2019s interference, to add to Col. Davis\u2019 account, and it is made all the more disturbing by Maj. Frakt\u2019s subsequent explanation of how Hartmann and Crawford seemed to connive to sway the judge\u2019s opinion. Their argument, he wrote, centered on claims that Crawford \u201chad not been misled by Hartmann\u2019s recommendation that the case against Jawad be referred as non-capital,\u201d which, as he pointed out, \u201cwas misleading because it suggested that capital punishment was an option, when it was not an authorized punishment for the offenses with which Jawad is charged.\u201d The end result, he noted, was that \u201cThe brief filed by the government severely distorted the facts.\u201d<\/p>\n

Despite this, Col. Henley amended his ruling the next day, authorizing Hartmann to review the matters submitted by the defense and to supplement his original pre-trial advice. Maj. Frakt was appalled. He had been denied the opportunity to respond (as he stated, he was \u201csupposed to get one week to respond to filings from the opposing party\u201d), and he immediately filed a motion \u201cpointing out the factual errors in the government brief and protesting this action, including the fact that the judge acted without input from the defense.\u201d Most importantly, he \u201crequested that Crawford be disqualified since she had made herself a witness in a contested matter before the commission.\u201d He noted, however, that \u201cThe judge never responded.\u201d<\/p>\n

In addition, Maj. Frakt explained that, although he knew that it was \u201ccompletely futile\u201d to submit a request for reconsideration, he nevertheless \u201cput together a detailed memorandum explaining the evidentiary, factual and legal deficiencies in the case and detailing the extensive mitigating and extenuating circumstances,\u201d which he submitted on September 15. He also included letters from concerned citizens, a petition urging Crawford to drop the case, and various legal documents, but explained that, although he \u201crepeatedly requested a personal audience\u201d with Crawford, \u201cshe refused to meet with me, citing a policy of not having ex parte communications with either party.\u201d Cutting once more to the heart of the problem \u2013 Crawford\u2019s thinly-veiled bias \u2013 Maj. Frakt added, \u201cThis is utter nonsense. She is not a judge and is specifically authorized to discuss matters with either party.\u201d<\/p>\n

Mohamed Jawad and the fog of \u201cwar crimes\u201d<\/strong><\/p>\n

Moreover, Hartmann\u2019s departure has clearly done nothing to stem Crawford\u2019s enthusiasm for referring charges without paying any heed to arguments made by the defense, and in this she seems to have the full support of Hartmann\u2019s replacement, Col. Mike Chapman. Maj. Frakt explained that on September 22 (Chapman\u2019s first day as legal adviser) he issued a new pre-trial advice to Crawford \u2013 \u201cchock full of misleading characterizations of the facts and misstatements of the law,\u201d as Maj. Frakt put it \u2013 in response to his submissions, in which he stated that there was \u201cno merit to the defense arguments.\u201d The following day, as Maj. Frakt proceeded to explain, \u201cCrawford \u2018ratified\u2019 her referral decision and confirmed that she wanted the case to go forward.\u201d However, while this appears to be another example of Crawford\u2019s predetermined inflexibility, which leads me to wonder if anything could persuade her not to go forward with the cases before her, Jawad, at least, appears to have some support from the judge in his case.<\/p>\n

On September 24, Col. Henley issued three rulings on motions to dismiss that were filed in May and June, and Maj. Frakt explained that, although he \u201cdeclined to dismiss the charges,\u201d he \u201ccame very close.\u201d Essentially, as Maj. Frakt described it, Col. Henley \u201cruled that the government had offered no persuasive authority for their legal position on the meaning of the elements of \u2018murder in violation of the law of war\u2019\u201d (the offense Jawad is accused of committing, even though no one died in the grenade attack). According to the government, Jawad\u2019s status as an \u201cunlawful combatant\u201d or \u201cunprivileged belligerent\u201d (variants on the familiar label of \u201cenemy combatant\u201d) is all that is required to prove that his acts were \u201cin violation of the law of war.\u201d<\/p>\n

This is actually nonsense, and Maj. Frakt proceeded to explain that a violation of the law of war should actually mean that there was \u201csomething in the nature of the act allegedly committed by Jawad that violated the law of war (e.g. an illegal weapon was used, or protected persons were targeted).\u201d He added, \u201cBecause Jawad is accused of using a lawful weapon to attack lawful targets (uniformed enemy soldiers) there is no independent violation of the law of war.\u201d<\/p>\n

Col. Henley seemed to agree, but he \u201cdeclined to dismiss the case because he said he did not know what evidence the government had and would give them a chance to prove their case,\u201d although he added that if the prosecution \u201cdidn\u2019t have any facts that would tend to prove a violation of the law of war, then they had an independent ethical obligation to go to the Convening Authority and ask her to dismiss the charges.\u201d<\/p>\n

He then ordered the government to provide a \u201cbill of particulars\u201d (a statement of facts detailing how the prosecution would prove the elements of the offense), but as Maj. Frakt described it, this document \u201csimply rehashed the government\u2019s prior stance that the violation of the law of war consisted of not being a lawful combatant and wearing civilian clothes to blend in with the local population.\u201d Pointing out the absurdity of this position, he explained, \u201cThe government states he is an unlawful combatant because he was not a member of a regular army in military uniform, but then claims his violation of the law of war was wearing civilian clothes.\u201d He added, \u201cI have noted several times that Jawad was part of the local population. He is an Afghan citizen.\u201d<\/p>\n

Quite how this absurd trial will pan out remains to be seen, but if there is hope for Mohamed Jawad, the same cannot be said for the Commissions in general, which are suffering from inbuilt problems that cannot be remedied by the dismissal of either the legal adviser to the Convening Authority or the Convening Authority herself \u2013 although the accumulating evidence certainly suggests that, like Brig. Gen. Hartmann, Susan Crawford should be removed from her post.<\/p>\n

Enshrining political manipulation<\/strong><\/p>\n

Several legal scholars have been noting these problems for some time. In August, for example, Professor Gregory S. McNeal, a former academic consultant to the Commissions\u2019 chief prosecutor, wrote<\/a> that the structure and rules for the Commissions, as crafted by the Department of Defense, \u201callowed for political manipulation of nearly all aspects of the trials.\u201d<\/p>\n

One of the major flaws identified by McNeal was the nature of the Convening Authority\u2019s role. In the courts-martial system, from which the Commissions are vaguely derived, the Convening Authority is a military commander, who is presumed to be capable of \u201cunbiased and apolitical decision-making.\u201d In the Military Commissions Act, however, it is stated that Military Commissions \u201cmay be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose\u201d; in other words, that civilians, like Susan Crawford, can be brought in to deliberately exert the \u201cundue command influence\u201d with which both she, and her legal adviser, have repeatedly been identified.<\/p>\n

In my opinion, this is a crucial distinction, deliberately tailored by the administration to allow a puppet of the executive to fulfil her master\u2019s commands, and it explains, I think, why there will be no justice at Guant\u00c3\u00a1namo until the whole system is dismantled and the trials are moved to the US mainland, where judges are free to throw out risible and\/or rigged charges like those against Mohamed Jawad, and to grapple, independently, with the problems they will undoubtedly face in prosecuting the handful of genuinely dangerous individuals at Guant\u00c3\u00a1namo in a court that can claim legitimacy.<\/p>\n

Until this time comes, I am thankful to Maj. Frakt for sharing his insights with me, and I will continue to expose the \u201cundue command influence\u201d that poisons Dick Cheney and David Addington\u2019s ill-conceived, quasi-legal system of show trials.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Andy Worthington\u00a0– andyworthington.co.uk\u00a0| Andy Worthington, author of The Guant\u00c3\u00a1namo Files, continues his analysis of the corrupt command structure of the Military Commissions at Guant\u00c3\u00a1namo, with new information from Maj. David Frakt, one of the Commissions\u2019 military defense lawyers. In the last three weeks, two events have occurred that have dealt what should have been […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1614],"tags":[33],"class_list":{"0":"post-4719","1":"post","2":"type-post","3":"status-publish","4":"format-standard","6":"category-surveillance-big-brother","7":"tag-guantanamo"},"_links":{"self":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/4719","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/comments?post=4719"}],"version-history":[{"count":0,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/posts\/4719\/revisions"}],"wp:attachment":[{"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/media?parent=4719"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/categories?post=4719"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/rinf.com\/alt-news\/wp-json\/wp\/v2\/tags?post=4719"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}