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Brigadier General Hartmann Removed from Role in Military Tribunals:

As covered in prior posts, Col. Morris Davis, the former chief prosecutor at Guantanamo, resigned his post alleging, among other things, that military officers, including Brigadier General Thomas Hartmann, were exercising undue influence over the conduct of the trials of detainees and compromising the impartiality and fairness of the military commissions. Now it appears that at least one military judge concurs with Col. Davis' assessment. As the NYT reports:

The judge, Capt. Keith J. Allred of the Navy, directed that Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, have no further role in the first prosecution, scheduled for trial this month.

General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantánamo military prosecutor, Col. Morris D. Davis of the Air Force.

Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture.

“National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantánamo judges are not typically released publicly until days after being handed down. . . .

Ruling on a defense lawyers’ request that said General Hartmann had exerted unlawful influence over the prosecution, Judge Allred said that public concern about the fairness of the cases was “deeply disturbing” and that he could not find that the general “retains the required independence from the prosecution.”

Pentagon officials could ask the judge to reconsider, could appeal to a special military appeals court created to hear Guantánamo cases or could replace General Hartmann.

General Hartmann has denied Colonel Davis’s assertions and said the commission system would “follow the rule of law.” He has also said he has pressed prosecutors and others involved in the tribunals to move the cases more quickly. . . .

Judge Allred’s ruling followed a hearing in Guantánamo on April 28 at which Colonel Davis said General Hartmann pressured him in deciding what cases to prosecute and what evidence to use. The judge called the hearing after lawyers for a detainee, Salim Hamdan, said his charges were unlawfully influenced.

Related Posts (on one page):

  1. Brigadier General Hartmann Removed from Role in Military Tribunals:
  2. Col. Davis for the Defense:
  3. A Prosecutor for the Defense:
PersonFromPorlock:
I wonder who the first administration official to win this particular division of the Captain Louis Renault Award will be?

Seriously - if we're going to call it a 'war' then these guys have to be treated as POWs. Anything else results in grotesqueries.
5.10.2008 1:49pm
elim:
neutral and objective manner? my god, to think that, in a time of war with an enemy that wants to destroy us, that we would want to have any member of our military behave in a such a manner is scary. It strikes me that the legalization of our military is quite sick when we have members who perceive that they have a duty to assist the enemy.
5.10.2008 1:55pm
Sean O'Hara (mail) (www):

Seriously - if we're going to call it a 'war' then these guys have to be treated as POWs. Anything else results in grotesqueries.


If they were caught fighting out of uniform, shouldn't they be treated as spies or saboteurs? And what do governments do with foreign spies in time of war...?
5.10.2008 2:05pm
Nathan_M (mail):
I'm just wondering, at this point does anyone defend the fairness of the military tribunals who doesn't start with the assumption that all the prisoners are guilty? Kangaroo courts like this ought to be beneath the United States.
5.10.2008 2:06pm
Gaius Marius:
This wouldn't happen if we did not take prisoners in the first place.
5.10.2008 2:10pm
Oren:
my god, to think that, in a time of war with an enemy that wants to destroy us, that we would want to have any member of our military behave in a such a manner is scary.
You don't see any difference between license to kill any enemy in the field and some sense of restraint when it comes to captives in chains?
5.10.2008 2:31pm
Benjamin Davis (mail):
How about if we think that General Hartman has done his job of teeing up the process in the kangaroo court in the way that his superiors want. Getting rid of him is to make us think "Oh boy, now everything is hunky dort fair." Seen this game too many times. Still a rigged system. The cases to be tried have been put in place by Hartman and the evidence to be used has been put in place by Hartman. No need for his fingers to be on the pie anymore so he conveniently gets pushed out of the way. I am awaiting the announcement of his retirement soon to some cushy job in the military industrial establishment.
Peace,
Ben
5.10.2008 2:46pm
ithaqua (mail):
Benjamin Davis: I hope you're right, but I can't help feeling that the liberal left has collected another pro-American scalp. Whoever replaces Hartmann is going to feel compelled to go along with Davis' plan: that is, to put some terrorists back on the streets to kill again in order to demonstrate the 'neutral and objective' nature of the tribunal. What rot.

Anyone who's able to be 'neutral' between the United States government and fanatic terrorist butchers is, by that fact, incompetent to preside over any terrorists' trials. The fall of Hartmann is going to cost American lives. Bet on it.
5.10.2008 3:39pm
Bill Poser (mail) (www):
Ithaqua and others seem to assume that the people the US wants to try in the Guantanamo kangaroo courts are in fact terrorists. This is quite dubious. For example, one of them was apparently bin Laden's driver. There seems to be not a shred of evidence beyond that. At worst, he knew of bin Laden's plans and approved of them, so yes, he is ill-disposed to us, but he's a very low-level guy who never fought anyone and was unlikely ever to leave his own country. For another example, take the Khadr case. What he is accused of is killing an American soldier IN BATTLE in Afghanistan, a battle initiated by the US when it attacked a Taliban stronghold. There are apparently serious doubts as to whether he is in fact the killer, but supposing that he is, what he is guilty of is being an enemy soldier. There's no reason to believe that he ever planned or engaged in terrorist activity.

Let's also remember that a large fraction of the Guantanamo detainees turn out not to have been captured in battle at all. Many of them were sold to the US by Afghan warlords or bounty hunters.
5.10.2008 4:12pm
frankcross (mail):
Some won't be happy until all those with Islamic names have been exterminated. Maybe even those with Islamic middle names.
5.10.2008 4:24pm
Daniel Chapman (mail):
Just like some won't be happy until Amerikkka is dead, and the land is returned to the buffalo.

Nope... this game is less fun than I imagined, Frank. Find someone else to play with.
5.10.2008 4:45pm
Oren:
I don't doubt that Hartmann was 100% "pro-America", I just think that his actions were 100% anti-America. Reasonable people do differ on what's best for the country -- implying that your opponents want what's worst for it is ridiculous.
5.10.2008 4:47pm
Richard Aubrey (mail):
Oren. Is it impossible that one's opponents could ever want what's worst for America?
It's possible they could want what's best and be horribly wrong about the results of their actions.
It's possible that what they consider best is a horror.
Other than motivation, which is easy to lie about, what's the difference?
5.10.2008 5:03pm
ray:
Bill Poser:

"a battle initiated by the US when it attacked a Taliban
stronghold."

Is that the same as an Afgan military base? The Taliban have no official standing and are terrorists in Afganistan. What part of that don't you understand? Was he deliverying the heavy weapons in his vehicle to the Afgan Girl Scouts?
5.10.2008 5:19pm
Humble Law Student (mail):
Ray,

You ignorant twit! Of course he was! Afgan girl scouts deliver heavy weapons instead of cookies. He was probably just helping his daughter with sales -- like any good American parent would o.
5.10.2008 5:22pm
Frater Plotter:
If they were caught fighting out of uniform, shouldn't they be treated as spies or saboteurs?


If they're in the battlefield fighting, then shoot them dead, by all means. But if you choose to take them prisoner instead, then you have to treat them as prisoners of war.

The government has two possible legal and moral ways to treat captive alleged terrorists. Either they are military enemies taken prisoner in a war -- POWs -- or they are civilians arrested as suspects in a crime. In the former case, they have the rights accorded POWs under international convention to which the United States is signatory. In the latter case they have the rights accorded an accused criminal under the Constitution.

There is no legal, constitutional way for the United States government to "disappear" someone. There is no way under United States law for a person to be accorded outlaw status in the classical sense: a person upon whom may be inflicted any outrage without illegality. U.S. law simply does not recognize the notion of a person without rights. The Guantanamo theory -- that there exists any place where the U.S. government exercises power but is not bound by the Constitution -- is pure nonsense.
5.10.2008 5:26pm
Davebo (mail):

The Taliban have no official standing and are terrorists in Afganistan.


Actually at the time the Taliban were the Afghan government in July of 2002. This guy wasn't captured last week you know.
5.10.2008 5:27pm
EH (mail):
I'd like to thank Ithaqua for providing the parody I was thinking of when reading the post.

Elim:
my god, to think that, in a time of war with an enemy that wants to destroy us, that we would want to have any member of our military behave in a such a manner is scary.


I'll tell you what's scary: hysterical paranoia from a fellow citizen.
5.10.2008 5:42pm
AnonLawStudent:
Fratter,

A battlefield prisoner is not necessarily either a P.O.W. or a civilian. Unlawful combatants may have some rights under the law of war, but those rights are very limited. viz:


[T]he law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. *** [A]n enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.


Ex parte Quirin, 317 U.S. 1, 30 (1942). Contra Benjamin Davis, it is not a "kangaroo court" to limit the trial to ascertaining (1) was this person engaged in hostilities, and (2) did he comply with the law of war, e.g., via distinctive markings and responsible command, in doing so? Nor is it a "kangaroo court" to use more liberal rules of evidence in making that determination.

The P.O.W. regime under the law of war has two major purposes: (i) minimizing combat by encouraging surrender, and (ii) protecting civilians by keeping keeping them segregated from combatants. If unlawful combatants are not penalized for hiding amongst the civilian population, then there is no incentive for them not to do so, and also no reason for the opposing forces to refrain from attacking the civilian population. For those who question the legality of the latter, I remind you that protected persons and places lose their protected status when used in furtherance of hostilities.
5.10.2008 6:21pm
PersonFromPorlock:
Sean O'Hara:

If they were caught fighting out of uniform, shouldn't they be treated as spies or saboteurs? And what do governments do with foreign spies in time of war...?

We're the ones who called it a war, and we called it one knowing our enemy doesn't wear uniforms. That makes them 'soldiers' by our choice.

As far as Guantanamo goes, the notion that the US government can run away and hide from the Constitution is unworthy of further comment.
5.10.2008 7:13pm
Oren:
Contra Benjamin Davis, it is not a "kangaroo court" to limit the trial to ascertaining (1) was this person engaged in hostilities, and (2) did he comply with the law of war, e.g., via distinctive markings and responsible command, in doing so? Nor is it a "kangaroo court" [3] to use more liberal rules of evidence in making that determination.
You are right, those things are fine. What rubs me wrong about the CSRTs and tribunals at GTMO is the fact that when a prisoner is found to not be an enemy combatant, they are simply retried. You can't seriously argue that a system where they try a person until he's found guilty (and of course, respect that decision!) comports with the basic decency of the Western world?
5.10.2008 7:16pm
AnonLawStudent:

What rubs me wrong about the CSRTs and tribunals at GTMO is the fact that when a prisoner is found to not be an enemy combatant, they are simply retried.


Seriously not trying to be snarky or snide, but can you provide a link? I would like to read about the case(s) in question.
5.10.2008 7:21pm
Benjamin Davis (mail):
Take a look at the ACLU's website for a link on the process.
Best,
Ben
5.10.2008 8:17pm
Jim Rhoads (mail):
The subject of the post, elimination of a senior officer from a prosecution team for undue command influence is nothing new in military justice proceedings (UCMJ or Commissions). Rulings like this have been the normal remedy for this problem in military justice for years.

Military Judges have been pretty vigilant in dealing with this problem, and generally have no problem spotting senior officers who have less sensitivity to the problem that they should.
5.10.2008 8:27pm
AnonLawStudent:
Ben,

What I found on the ACLU website is specifically not what I am looking for. Oren made a specific factual statement regarding the process; I asked for a link to a specific example. Policy arguments that CSRTs and military commissions are "not what America stands for" and unsubstantiated allegations that they are "illegal" isn't sufficient.
5.10.2008 8:33pm
Oren:
AnonLawStudent, I hope that they teach you basic google skills in law school these days.

Link, link (pdf warning)

There is plenty of evidence that the government does not consider its own CSRT 'acquittals' to be binding.
5.10.2008 8:38pm
DaSarge (mail):
I remain amazed at the assiduous attention to the rights of unlawful combatants. Of course, there seems no room in the press for the command influence being laid upon the remaining accused in the Haditha thing. Heaven forfend that Americans unjustly accused be granted the same due process.

Oh, I forgot, the whole case arose from the vile falsehood of a reporter from Time. That makes it OK, I suppose.
5.10.2008 9:10pm
AntonK (mail):

No issue has generated more misguided commentary than that of the treatment of terrorist detainees. I think the confusion stems, in part, from the false assumption that terrorist detainees, like Americans who are suspected of a crime and are in the custody of law enforcement authorities, have a right to remain silent. They have no such right. On the contrary, security agencies have the right and duty to try to extract information from them--information that in many cases, will save Americans' lives.

Yesterday, House subcommittee chairman Jerrold Nadler held a hearing on "executive branch war powers," which was the usual festival of Bush-bashing, centered on legal opinions on detainee treatment that have been given by the Department of Justice. What was notable about the hearing was the opening statement by ranking Republican Trent Franks of Arizona. Franks delivered as sensible (and legally accurate) discussion as I've seen; here it is, in its entirety:


FRANKS: Well, thank you, Mr. Chairman. Mr. Chairman, the subject of detainee treatment was the subject of over 60 hearings, markups and briefings during the last Congress in the House Armed Services Committee alone, of which I am a member.

The subject of this hearing is a memorandum that has long since been withdrawn. That memorandum regarded an interrogation program on which Speaker Pelosi was fully briefed in 2002. And at that briefing, no objections were made by Speaker Pelosi or anyone else.

According to the Washington Post, in September 2002, four members of the Congress met for a first look at a unique CIA program designed to wring vital information from reticent terrorism suspects in U.S. custody.

For more than an hour, the bipartisan group, which included current House Speaker Nancy Pelosi, was given a virtual tour of the CIA's overseas detention sites and the harsh techniques interrogators had devised to try to make their prisoners talk. Among the techniques described, said two officials present, was water boarding. On that day, no objections were raised.

Mr. Chairman, let me be clear as I have done so in the past by saying that torture is already, and should be, illegal. I am against torture. Torture is banned by various provisions of the law, including the 2005 Senate Amendment prohibiting the cruel, inhuman or degrading treatment of anyone in U.S. custody.

But what of severe interrogations? Mr. Chairman, were we not to engage in severe interrogations which could save thousands or even millions of lives, we would have to ask ourselves if we were facilitating the maiming and torture of innocent Americans by letting terrorist suspects conceal their evil plans.

Severe interrogations are rarely used. CIA Director Michael Hayden has confirmed that despite the incessant hysteria by a few, the water boarding technique, for example, has only been used on three high-level captured terrorists, the very worst of the worst of our terrorist enemies.

Director Hayden suspended the practice of water boarding by CIA agents in 2006. Before the suspension, he confirmed that his agency water boarded 9/11 mastermind Khalid Sheikh Mohammed, Abu Zubaida and Abdullah Hem Nashiri (ph), and each for approximately one minute.

But who are these people, Mr. Chairman? When the terrorist Zubaida, a logistics chief of Al Qaida, was captured, he and two other men were caught building a bomb. A soldering gun that was used to make the bomb was still hot on the table, along with the building plans for a school.

John Kiriaku, a former CIA official involved Zubaida's interrogation, said during a recent interview, quote, "These guys hate us more than they love life. And so you're not going to convince them that because you're a nice guy and they can trust you, and that they have rapport with you that they're going to confess and give you their operations," he said.

The interrogation of Zubaida was a great success, and that it led to the discovery of information that led to the capture of terrorists, thwarted terrorist plans and saved innocent American lives.

When a former colleague of Mr. Kiriaku asked Zubaida what he would do if he was released, he responded, quote, "I would kill every American and Jew I could get my hands on," close quote.

The results of a total of three minutes of severe interrogations of three of the worst of the worst terrorists were of immeasurable benefit to the American people. CIA Director Hayden said that Mohammed and Zubaida provided roughly 25 percent of the information that the CIA had on Al Qaida from all human sources. Now we just need to kind of back up and thought about that. A full 25 percent of the human intelligence we've received on Al Qaida from just three minutes worth of a rarely used interrogation tactic.

Mr. Chairman, I just want to repeat again, as I previously said, torture is banned under federal law that prohibits the cruel, inhuman or degrading treatment of anyone in U.S. custody. The non-partisan Congressional Research Service has concluded that, quote, "The types of acts that fall within cruel, inhuman or degrading treatment or punishment contained in the McCain Amendment may change over time and may not always be clear. Courts have recognized that circumstances often determine whether conduct, quote, 'shocks the conscience and violates a person's due process rights,' unquote."

Even ultra-liberal Harvard Law School Professor Alan Dershowitz agrees, as he wrote recently in the Wall Street Journal. Quote, "Attorney General Mukasey is absolutely correct that the issue of water boarding cannot be decided in the abstract. A court must examine the nature of the governmental interest at stake and then decide on a case by case basis. In several cases involving actions at least as severe as water boarding, the courts have found no violations of due process."

Much will be made today of a memorandum regarding severe interrogations authored by John Yoo, a former lawyer at the Office of Legal Counsel. But as Mr. Yoo himself said during a recent interview, quote, "I didn't want the opinion to be vague so that the people who actually have to carry out these things don't have a clear line, because I think that that would be very damaging and unfair to the people who are actually asked to do these things," close quote.

These things, Mr. Chairman, are efforts to save thousands of innocent American lives. Now I expect Mr. Yoo's name will be mentioned many times today, but the name of Senator Charles Schumer probably not so many times.

But let us remind ourselves what Senator Schumer of New York said at an extended Judiciary Committee hearing on terror policy on June 8, 2004. And I wonder if they have the -- can we start again?

SCHUMER: We ought to be reasonable about this. I think there are probably very few people in this room or in America who would say that torture should never, ever be used, particularly if thousands of lives are at stake.

Take the hypothetical, if we knew that there was a nuclear bomb hidden in an American city, and we believed that some kind of torture, fairly severe, maybe, would give us a chance of finding that bomb before it went off, my guess is most Americans and most senators, maybe all, would say do what you have to do.

So it's easy to sit back in the armchair and say that torture can never be used. But when you're in the foxhole, it's a very different deal. And I respect, I think we all respect the fact that the president's in the foxhole every day.

FRANKS: Mr. Chairman, I wish so much that this was all just an academic discussion. But unfortunately, we now live in a post-9/11 world with an enemy whose leader, Osama bin-Laden, has said, quote, "It is our duty to gain nuclear weapons."

Mr. Chairman, I'm afraid that one such tragedy will transform this debate in the worst kind of way. Two airplanes hitting two buildings took 3,000 lives and cost this nation $2 trillion.

If an atomic blast or some other weapon of mass destruction should ever be unleashed on this nation, it would change our concept of freedom forever. And I just hope that we can transcend the partisanship and maintain our focus on that because there's still hours on the table left when we can prevent such a tragedy, I believe, if we realize that there are ways that we can combine human decency and a vigilant foreign policy in an interrogation technique process to protect this country and the concept of freedom for future generations.


5.10.2008 9:54pm
Duncan Frissell (mail):
There is no legal, constitutional way for the United States government to "disappear" someone. There is no way under United States law for a person to be accorded outlaw status in the classical sense:

The US has not adopted Protocol 1 - Protocol Additional to the Geneva Conventions of 12 August 1949. That means that non-US citizens captured in battle who do not fall under the Geneva Conventions that we have adopted can be shot out of hand.

Likewise since those of us in the US who are defending our homes (or office buildings) against enemy attack are not bound by the Geneva conventions at all, we can kill any enemies that we happen to ecounter. Legal as church on a Sunday. And if we do, then if all those overseas wimps who have signed Protocol 1 send in the black helcopters they can't kill us but have to pay us SF100/month (now about $100/month), give us 3 hots and a cot, and return us to our homes ASAP. Neat, huh?
5.10.2008 11:04pm
elim:
paranoid-remember 9/11? sounds like a good reason for paranoia. the guys at Gitmo are part and parcel of the folks who did it. still want neutrality and objectivity?
5.10.2008 11:29pm
Cornellian (mail):
the guys at Gitmo are part and parcel of the folks who did it. still want neutrality and objectivity?

So why bother even with show trials, let alone a trial that runs some actual risk of aquittal?
5.11.2008 12:36am
AnonLawStudent:
Oren,

The links you provided in your 7:38PM post don't really shed any light on the subject. I recall reading the NYT article previously; the only thing it indicates is that a single-digit number of prisoners have been subjected to repeated hearings. I didn't see anything at all in the RMO Amicus Brief. I would also point out that the American restriction on double-jeopardy is somewhat unique. Even "progressive" jurisdictions such as The Netherlands and the International Criminal Tribunal for the former Yugoslavia permit prosecutors to appeal based on the weight of the evidence for acquittal. It hardly seems fair to criticize the CSRTs for engaging in - on what appears to be a very limited basis - the same procedures that other war crimes tribunals use, unless one is asserting that CSRTs are subject to full constitutional safeguards.

I do appreciate the tone of both our discussion and this thread in general. I've noticed that Gitmo threads tend to turn into shouting matches very quickly; thank you for taking the time to engage in thoughtful discussion.
5.11.2008 12:51am
LM (mail):
Cornellian,

So why bother even with show trials, let alone a trial that runs some actual risk of aquittal?

I'm sorry to disappoint you, but you're not the first to think of that. And I'm sorry to shock you, but you may be the first to think of it who wasn't serious.
5.11.2008 12:52am
berlet98 (mail) (www):
I can admire Hartmann's wish for a fair trial for these defendants, but only to a point. American citizens and green-carded legal aliens merit a fair trial; all others deserve what they get. I know that seems so very un-American to say, but isn't it time we woke up and smelled reality. We are AT WAR! Just as Lincoln, in his wisdom, suspended habeas corpus during the Civil War and FDR, despite his many flaws, interned potential enemies during WWII, in war, as Gen. MacArthur said, "There is no substitute for victory!"
If we err on the side of caution, then so be it. We can apologize after we win. If we err on the side of PC and lose, does anything else matter?
I think not.
See my website for further insights.
5.11.2008 2:31am
Oren:
ALS,
Indeed, in a naked assertion of command
influence, in some of the rare cases where a detainee was
found by his CSRT panel not to be an enemy combatant,
higher ranking officials in the chain of command insisted on
another bite at the apple—a “do-over” by the same panel or a
new panel—until the CSRT reached the “correct” result: an
enemy combatant finding. Al-Odah v. Bush, No. 06-1196,
Reply to Opp. to Pet. for Rehearing, Decl. of Lt. Col.
Stephen Abraham ¶23.
5.11.2008 3:23am
Oren:
Indeed, in a naked assertion of command influence, in some of the rare cases where a detainee was found by his CSRT panel not to be an enemy combatant, higher ranking officials in the chain of command insisted on another bite at the apple—a “do-over” by the same panel or a new panel—until the CSRT reached the “correct” result: an enemy combatant finding. Al-Odah v. Bush, No. 06-1196, Reply to Opp. to Pet. for Rehearing, Decl. of Lt. Col. Stephen Abraham ¶23.
(better formatting, quote is from the brief i linked earlier).
5.11.2008 3:24am
davod (mail):
As soon as someone raised the quation of Hartmann's role he was destined for removal. It is called guilt by association.

I do have a feeling that the legal eagles in the military think they are a world apart from everyone else. Just like the commissars in the Russian military, we now have our lawyers. Untrained in military tactics but well trained in the ideology of lawfare, ever ready to counteract the platoon commander on the battlefield. How many will die before the lawyers are placed back in their box.
5.11.2008 8:22am
Oren:
Actually, ALS, let's keep going with the sworn statement of Lt. Col. Stephen Abraham, Military Intelligence:
On one occasion, I was assigned to a CSRT panel with two other officers, an Air Force colonel and an Air Force major, the latter understood by me to be a judge advocate. We reviewed evidence presented to us regarding the recommended status of a detainee. All of us found the information presented to lack substance.

What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence. Statements allegedly made by percipient witnesses lacked detail. Reports presented generalized statetents in indirect and passive forms without stating the source of the information or providing a basis for establishing the reliability or the credibility of the source. Statements of interrogators presented to the panel offered inferences from which we were expected to draw conclusions favoring a finding of “enemy combatant” but that, upon even limited questioning from the panel, yielded the response from the Recorder, “We’ll have to get back to you.” The personal representative did not participate in any meaningful way.

On the basis of the paucity and weakness of the information provided both during and after the CSRT hearing, we determined that there was no factual basis for concluding that the individual should be classified as an enemy combatant.

Rear Admiral McGarrah and the Deputy Director immediately questioned the validity of our findings. They directed us to write out the specific questions that we had raised concerning the evidence to allow the Recorder an opportunity to provide further responses. We were then ordered to reopen the hearing to allow the Recorder to present further argument as to why the detainee should be classified as an enemy combatant. Ultimately, in the absence of any substantive response to the questions and no basis for concluding that additional information would be forthcoming, we did not change our determination that the detainee was not properly classified as an enemy combatant. OARDEC's response to the outcome was consistent with the few other instances in which a finding of “Not an Enemy Combatant” (NEC) had been reached by CSRT boards. In each of the eetings that I attended with OARDEC leadership following a finding of NEC, the focus of inquiry on the part of the leadership was “what went wrong.”

I was not assigned to another CSRT panel.
5.11.2008 2:29pm
PC:
How many will die before the lawyers are placed back in their box.


Are we a nation of laws or men?
5.11.2008 2:55pm
Morat20 (mail):
[quote]
Are we a nation of laws or men?[/quote]

It appears we are a nation of cowards. Rule of law used to be considered an American strength.

Now? Now it's tossed aside because of unreasoning fear, or in the pursuit of political power.
5.11.2008 3:12pm
Joist D:
Would not justice Freisler be proud of that "tribunal"?
5.11.2008 3:26pm
KenB (mail):
The government has two possible legal and moral ways to treat captive alleged terrorists. Either they are military enemies taken prisoner in a war -- POWs -- or they are civilians arrested as suspects in a crime.
I am no authority on the laws of war, but if that's true, then we either change the law or lose. There's no hope of prevailing when you must accord battlefield-prisoners the same rights we accord criminal defendants. Are we to turn over classified military operation plans, the fact that we've cracked a code, or the identity of an informant merely because it's relevant to the defense?

Those arguing for conflating criminals with illegal combatants better be careful. The situation is so untenable that it could lead to erosion of rights we accord criminal defendants. The issue is not simple, and there may be troubling situations when it is difficult to categorize someone as a criminal as opposed to the sort of illegal combatant we encounter in the Middle East. But we must undertake the task.
5.11.2008 6:45pm
Oren:
Ken, you know that the defense attorneys have clearance right?
5.11.2008 6:53pm
Anderson (mail):
in a time of war with an enemy that wants to destroy us,

See, it's this pants-wetting attitude that leads to our worst deeds.

"An enemy that wants to destroy us." I'm sure they *want* to do that, sure. 'Cept they can't.
5.11.2008 8:24pm
elim:
nation of laws or men-please see past wars for answer to foolish question. we didn't "due process" past enemies nor did the elites seem to find it fashionable to work for our enemies in the past. would you have favored a similar legal regime in WWII, if the result were more americans dying or our nation losing? I do like the political officer analogy-the military lawyers are apart and seem not to be from a tradition that cares if their actions lead to death or loss. a military where all parts aren't focused on winning seems, sorry to say, ridiculous
5.11.2008 9:34pm
elim:
bedwetting again? were our priors bedwetters in wwII? paranoia-do you think those 1940's troglodytes would have tolerated american lawyers working on nazi retainers or actively aiding the enemy? how about having military lawyers working for the nazis? how about we get a lecture from the ones throwing around the word "bedwetter" as to what they were doing on 9/11 after the planes hit the buildings. I am sure, given their bravery, that they weren't calling up loved ones and making sure everyone was okay.
5.11.2008 9:39pm
Oren:
we didn't "due process" past enemies
Yeah, Nuremberg was a figment of my imagination.
5.11.2008 9:47pm
elim:
nuremburg again-since you seem to be a historian, tell the rest of us morons when those trials occurred? given that you are citing it and comparing it to the present, it must have been 1942 or 1943, right in the middle of hostilities, right? it couldn't have possibly occurred after we had defeated the enemy, could it. that would make are current efforts seem extra moronic by comparison.
5.11.2008 9:52pm
LM (mail):

I do like the political officer analogy-the military lawyers are apart and seem not to be from a tradition that cares if their actions lead to death or loss.

Wow. So now even military service isn't beyond parsing for fifth columns and America haters.
5.11.2008 11:41pm
Oren:
elim, Al Qaeda is defeated (actually, they were defeated decades ago). Can we have our trials now?
5.12.2008 12:08am
davod (mail):
"An enemy that wants to destroy us." I'm sure they *want* to do that, sure. 'Cept they can't.

Cept, after they are let go from Guantanamo (due to the good graces of a pro bono US civilian where the law firm has lots of money from Arab sources) they can blow up themselves and a lot of civlians (so much for the GC protecting civilians from harm).

Oh, did I mention the "they were Jews so it allows by Allah"defence does not work because the ratbag killed a bunch of Arabs.
5.12.2008 5:47am
Ben P (mail):

Cept, after they are let go from Guantanamo (due to the good graces of a pro bono US civilian where the law firm has lots of money from Arab sources) they can blow up themselves and a lot of civlians (so much for the GC protecting civilians from harm).


OR

We could not be stupid about this and hold them as prisoners of war.

We accord them basic rights and we can keep them interned as long as the war is going on. You see how this works?


We gave Nazi Prisoners all sorts of rights under this mantle and It didn't seem to hurt us any there.
5.12.2008 9:41am
Happyshooter:
We gave Nazi Prisoners all sorts of rights under this mantle and It didn't seem to hurt us any there.

Are you serious? We gave the Soviets and the French full votes to convict and execute at Nuremberg. In what way was that fair?
5.12.2008 9:59am
ejo:
if we have a branch of the military that considers its duty to be enabling or assisting our enemies in the time of war to get back to the role of killing our soldiers, I don't think you need to parse. It is, quite simply, insane but typical for the modern era. Would it have been done in any prior wars? Would it have been done in WWII? Does a JAG officers duty to a jihadist client outweigh any allegiance or duty to this country? if their perception is yes, our military is done.
5.12.2008 10:32am
Happyshooter:
With the exception of Marine lawyer/officers, who are actual officers and undergo full military selection and training and have the legal ability to command--
military lawyers are officers without the training or ability to command who have not attended any meaningful officer selection or training.

They are taken directly to a shortened training course for how pay and assignments work, and from there go to a law school campus for military law training. From there they go straight to things like contract review, environmental law work, or taking turns convicting or making a stab at defending a private or seaman who had some drugs.

They have no loyalty to the military because it was never instilled in them, and they don't care about letting terrorist illegal combatants go free because they will only kill low ranking troops and the military lawyers only exposure to those troops is putting them away or half heartedly defending them.

Note: Marine lawyer officers attend full OCS and attend the full Basic School (6 months of intro level officer skills and basic infantry officer skills). They then have the legal and actual ability during their careers to command.
5.12.2008 10:53am
LM (mail):
Impugning the loyalty of JAG Corps. attorneys is scurrilous.
5.12.2008 5:50pm
Happyshooter:
During my year as an active duty MP I saw one army JAG who on defense had both the ability and motivation to do his best for his clients. In an odd twist he was also a HLS grad.

Granted, that was during the Clinton years and over 12 years ago...
5.12.2008 6:06pm
Colin (mail):
Well, if a whole year as an MP doesn't qualify you to accuse the corps of treasonous disloyalty and total disregard for the lives of their brothers in arms, then nothing does.

To reiterate, nothing qualifies you to sling blanket accusations of treasonous disloyalty and total disregard for the lives of soldiers.

I hope you're a better person when you're not engaged in anonymous libel.
5.12.2008 8:08pm
elim:
do some in the Jag corps perceive their duty to be to a jihadist client rather than this country or the military? it seems uncontroversial to say yes, making them not atypical for lawyers. do we want members of the military to feel obliged to help jihadists kill fellow soldiers-did we do it in prior wars? if yes, please name the trials in WWII in Europe where our jags assisted in freeing nazis to kill again
5.12.2008 8:22pm
LM (mail):
Their duty to the country and the military is to do their job to the best of their ability. Just like every other soldier, sailer, airman and marine. Period.

What percentage of our armed forces fire guns? Are all the rest less loyal, less deserving of gratitude and respect? If two men enlist, and one gets assigned to a fighting unit, and the other to transportation or supply, does the first one win a presumption of greater loyalty? What if #2 goes to radar command, where he helps target air strikes, but is still essentially out of harm's way? Where do you draw the line, and who gets to decide?

These distinctions are all bullshit. When someone enlists to do military service, he deserves the same presumption of loyalty and sacrifice as any other enlistee, regardless of his job. If a JAG lawyer is told to defend a Guantanamo detainee, defending that detainee to the best of his ability is the most loyal thing he can do for the country and the service. Unless, of course, you think everyone in the military should start making his own assessment of which jobs help the country, and which ones hurt, and act accordingly. That would be a great recipe for command discipline. That wouldn't be an army. It would be an anarchist militia.

If you don't like what military lawyers do, right your congressman or vote him out of office. But don't blame the soldier for doing his best at the job he's given.
5.13.2008 2:27am
LM (mail):
right write your congressman
5.13.2008 6:31am
CharleyCarp (mail):
Random points:

In Quirin, the defendants had lawyers.

Take a look at Salim Hamdan's indictment, and see how much of the conduct alleged pre-dates, and is unrelated to, September 11.

Our allies in the Afghan civil war -- in which we intervened for what I think justifiable reasons -- didn't wear uniforms either.

A whole lot of the people in Gitmo, including people subject to commission trial, were not apprehended on anything that can remotely be called a battlefield. What may or may not be acceptable given the chaos of a battlefield doesn't have anything to do with an arrest of a sleeping man in an apartment in Pakistan. I think KSM should certainly be subject to trial. But people who want to talk about battlefields show themselves either ignorant or apathetic about the facts.

The US government, though, has taken the position that the entire world is a battlefield. (Inter alia, in Mr. Clement's response to the Fourth Circuit in Padilla, iirc). While there might be some rhetorical justification for this, you'd have to drop the notion that a battlefield is chaotic, or that looser standards of evidence etc ought to apply.

AnonLawStudent should try to find an 'acquittal' at a CSRT that did not result in a do-over. And the issue isn't really about double jeopardy: it's an indication that the thing is being conducted in bad faith. The Kurnaz CSRT is another fine example -- read Judge Green's opinion from January 2005 on that and other follies from the CSRTs.

The Administration's supposed substitute for habeas, DTA review, is completely bogged down, because the government refuses to comply with the court's discovery orders. It has instead petitioned for cert, and taken the position that if cert is denied, or the Supreme Court affirms, it would rather vacate all CSRT decisions and start over than comply.
5.13.2008 10:17am
CharleyCarp (mail):
And what do governments do with foreign spies in time of war...?

Try them. Care to cite anything at all for the contrary?

The UCMJ puts it like this: Any person who in time of war is found lurking as a spy or acting as a spy in or about any place, vessel, or aircraft, within the control or jurisdiction of any of the armed forces, or in or about any shipyard, any manufacturing or industrial plant, or any other place or institution engaged in work in aid of the prosecution of the war by the Unites States, or elsewhere, shall be tried by a general court-martial or by a military commission and on conviction shall be punished by death.

That's the current version, but you can go back to Article 28 of the 1775 Article of War and you'll find the same thing.

Somehow, between the bedwetting and the bloodthirsty, a seriously wrong idea has sprung up that we suspend the rule of law as to some persons at some points. Nope.
5.13.2008 10:33am
ejo:
sorry, I don't accept the premise that, if one is told to defend a terrorist, this is the highest and most loyal thing that can be done for the country. there appears to be a disconnect between the military's lawyers and actually having any sort of a duty or obligation to try to win a war. frankly, if they are working against this country by defending terrorists, it is immoral.
5.13.2008 11:21am
LM (mail):

sorry, I don't accept the premise that, if one is told to defend a terrorist, this is the highest and most loyal thing that can be done for the country. there appears to be a disconnect between the military's lawyers and actually having any sort of a duty or obligation to try to win a war. frankly, if they are working against this country by defending terrorists, it is immoral.

Obviously, that assumes defending alleged terrorists works against this country. And if you believe that part of what makes this country worth fighting for is the rule of law, then defending alleged terrorists, guilty and innocent, is anything but "working against this country."

On the other hand, you haven't given a hint of how you envision a patriotic JAG officer serving his country. By refusing to do his job? How does refusing orders, insubordination or dereliction of duty serve the well-being of the armed forces or the country? If your criticisms are valid, how does addressing them at anything but the civilian oversight level serve the order and discipline necessary for effective fighting forces?
5.13.2008 11:42am
ejo:
I guess I don't see a JAG role in the actual fighting of a war. again, if we have a separate unit of the military that considers itself to have a higher duty to assisting an enemy than to defeating it, we have a problem. that is what we have and I can't see any positive outcome as a result. should a soldier feel better knowing that, if he captures someone, another guy wearing the same uniform thousands of miles away will be working his hardest to get that person returned to the field to try to kill him again-if you think that makes sense, why didn't we have JAG units doing the same thing in Europe during the early '40's. Please don't use Nuremburg again as you know those trials occurred after we won, not during combat.
5.13.2008 12:58pm
LM (mail):
I understand what your objection is. I disagree with it, but I understand it. But you still haven't explained how it's the role of a uniformed officer to refuse to do his job. Disobeying orders is routinely cited as unacceptable, among other reasons, because it gets soldiers killed. But you're claiming to know better how military decisions should be made, and who should or shouldn't follow orders?
5.13.2008 6:02pm
LM (mail):
... and by the way, when the current JAG officers refuse to do their duty, per your wishes, leaving nobody to handle their court-marshals, I assume you're OK with just locking them up until the war is over, if ever?
5.13.2008 6:06pm
CharleyCarp (mail):
What battlefield? What capture? What war? What does "over" mean? These are real questions.

Especially when you don't really have battlefield captures by US forces hardly at all. Instead, you have people who for all appearances are civilians being turned over to US forces bound and gagged, black and blue, by someone with a story and his hand out. One pulled off a bus at a checkpoint in Pakistan, another taken off a plane in Gambia, a few more grabbed while walking out of a courthouse where the highest court in their country had pronounced them free to go, there being insufficient evidence to hold them.

I sincerely doubt many US soldiers are losing sleep worrying that some few officers will end up defending some few prisoners -- no trials having taken place over the last six years, and no prisoner having been released as the result of a court order either.
5.14.2008 12:31am