Controversial Guantanamo legal advisor reassigned

Sunday, September 21, 2008

Leslie Schulman at 11:50 AM ET

[JURIST] The Pentagon on Friday announced [news release] that US Air Force Brig. Gen. Thomas Hartmann [official profile; JURIST news archive], the controversial legal advisor to the US military commissions at Guantanamo and supervisor of the Office of Military Commissions-Prosecution (OMC-P), has been reassigned to the newly-created position of director of operations of the Office of Military Commissions. As director of operations, Hartmann will be responsible for the initiation, review, staffing, coordination and execution of all planning and development matters relating to military commissions. Deputy legal advisor Michael Champan will become the new legal advisor to the military commissions. AP has more.

Earlier this year military judges presiding over the military commission [JURIST news archive] trials of Guantanamo detainees Omar Khadr and Mohammed Jawad [JURIST reports] barred Hartmann from taking any part in the trials of those detainees on grounds that he was unduly biased towards the prosecution. US Army Gen. Gregory Zanetti [official profile], deputy commander at Guantanamo Bay, testified in August [JURIST report] that Hartmann routinely bullied his counterparts and was inappropriately aggressive in seeking indictments against detainees. In May, Hartman was disqualified [JURIST report] from participating in the military commission trial of detainee Salim Ahmed Hamdan [DOD materials; JURIST news archive].

Military Judge Finds Political Manipulation in Gitmo, Again: Scott Horton

By Scott Horton

The proceedings in the Guantánamo military commissions continue, and the professional participants continue to grapple with the poorly disguised efforts of the Bush Administration to fix the outcome. JAG attorneys active in the commissions have frequently cited Thomas W. Hartmann as the source of their concerns. Hartmann, whose civilian job is general counsel to Mxenergy Holdings Inc., the Stamford, Connecticut gas producer and distributor, was handpicked and brought out of the JAG reserves to serve as the Bush Administration’s stage manager for the Guantánamo productions. His formal position is as “legal advisor” to Susan J. Crawford, the convening authority. Crawford, a retired military judge, previously worked for Dick Cheney and is known as a crony of David Addington.

In concept, Hartmann plays a supervisory role over the process in an administrative sense. He is also supposed to review decisions of the commissions and make a recommendation to Crawford before he passes them on to her for finalization and approval. However, according to testimony taken in the Gitmo proceedings, Hartmann played his hand crudely from the outset. He appeared before a Senate committee suggesting repeatedly his belief that torture-induced evidence could be used, and denying that waterboarding was torture. His highly evasive performance caused Republican Senator Lindsey Graham to express disgust.

When the first charges were announced, Hartmann appeared on national television brandishing harsh labels and prejudging cases on which he was slated to exercise an appellate review function—raising questions under professional ethics rules which later fueled challenges against him.

As the cases proceeded, accounts of Hartmann’s bullying and intimidation of other lawyers participating in the process circulated. In the Salim Hamdan case, his involvement drew a challenge, and after the court heard evidence of Hartmann’s improper conduct that included specific allegations that he was jockeying to have cases publicized and tried “before the elections,” he was banned from involvement in the case. Hartmann refused to resign, and protested that he was doing precisely what was called for by his job description.

In the last week, Hartmann faced a second challenge in another case. The former chief prosecutor, Colonel Moe Davis, testified that Hartmann had lobbied hard for the prosecution of an Afghan detainee named Mohammed Jawad, apparently because Hartmann felt the case would play well to an American television audience. Davis was followed by Gen. Gregory Zanetti, who testified that Hartmann routinely bullied other attorneys and was inappropriately aggressive in pushing for prosecution of certain cases that he felt had media value. Zanetti concluded that Hartmann’s behavior was “abusive, bullying and unprofessional. . . pretty much across the board.” Consistent with his public remarks, Hartmann’s actions reflected a particular bias in favor of aggressive prosecution of cases which he feels could be exploited politically to the advantage of the Bush Administration.

The current chief prosecutor, Col. Lawrence Morris, defended Hartmann, stating that the issues raised reflected nothing more than “a superficial personality conflict.” Morris is Hartmann’s direct subordinate. Interestingly, this is the same defense that Hartmann adopted when his conduct became the subject of an internal Defense Department probe.

Now a second military judge, Col. Steve Henley, has ordered Hartmann’s removal from the proceedings, sustaining the accusations raised against him. In an order handed down on Friday, Hartmann was banned from participation in the case, and the defense counsel were advised that they could make submissions in their quest for access to exculpatory evidence directly to Crawford, bypassing Hartmann.

For an attorney to be formally admonished and removed from legal proceedings twice for unprofessional conduct is an extraordinary matter. However, Hartmann is defiant, insisting that his actions are proper. One wonders if the disciplinary authorities of the Connecticut bar are following these developments.

Update: Readers advise me over the weekend that Hartmann is not a member of the bar in the state in which he most recently practiced, Connecticut, but he is admitted in Illinois and Missouri.

Pentagon Flip-Flops, Denies WAR CRIMES DOSSIER: Evidence To Detainees In Military Commission Trials

When Khalid Sheik Mohammed and other alleged co-conspirators in the
Sept. 11, 2001, terrorist attacks seek to represent themselves in military commissions trials in Guantanamo Bay, Cuba, they may be barred from reviewing highly classified evidence and might not have access to the intelligence agents who interrogated them, according to the Pentagon's Office of Military Commissions.

The Justice Department has argued that the Supreme Court's decision last week granting the Guantanamo detainees the right to challenge their detentions in U.S. courts should not affect the military trials process. The department contends that the government plans to go ahead with military commissions for those who are facing war crimes charges.

Though the top legal adviser for the commissions process, Air Force Brig. Gen. Thomas W. Hartmann, has said that the trials would be "fair, just and transparent" and that detainees would have full access to the evidence against them, Pentagon officials have now backed off of those claims. The Office of Military Commissions said last week that defendants representing themselves might not get access to information about their interrogators and that secret information might have to be redacted in order to be shared with them.

"If classified information is presented to the jury, the accused will see it, no exceptions," according to the Office of Military Commissions' written responses to Washington Post questions about how the military commissions will deal with classified evidence in the Sept. 11 case. Yet a further explanation reveals that classified contents of certain materials could be replaced by summaries and blacked-out documents. "It is possible that an accused representing himself will not be able to directly review some evidence; in such circumstances, his standby defense counsel might be involved."

t is unclear, however, what role the standby counsel would be allowed to play and how far the judge would let him go in cooperating in their client's defense. Mohammed, Tawfiq bin Attash and Ali Abdul Aziz Ali have been approved to represent themselves at trial; Ramzi Binalshibh and Mustafa Ahmed al-Hawsawi have hearings pending to determine their competency to do so.

The defendants, some of whom have already said they were tortured by CIA agents while held in secret prisons overseas, almost certainly will request to use highly classified evidence relating to their captures and alleged confessions under duress. Legal experts said that, in such cases, it would be critical to challenge the confessions as illegal because of coercion, even if the government did not seek to use them, because of the legal doctrine that if the defendant was abused, all of his following statements would then be tainted and inadmissible.

Yet the Office of Military Commissions will not guarantee that the defendants will be able to question and confront their interrogators or captors, saying that the "identities of intelligence interrogators are normally classified." Though the CIA has acknowledged using aggressive interrogation techniques, including waterboarding, it is possible that the detainees will never learn their interrogators' names or have access to them.

Gerald T. Zerkin, a lawyer who represented convicted terrorist Zacarias Moussaoui in his federal trial in Alexandria, said that when he was "stand-by counsel" in the case, he could not share classified information with Moussaoui, and summaries of some high-value detainees' interrogations were offered to the court, with no indication of how, when or where the statements were obtained.

"He didn't have access to classified information," said Zerkin. "You know information about the trial, you want to advise him, and you can't tell him what it is. How do you suppress statements if you can't have access to the officers to ask them questions about how the statements were taken, and they can't testify? So it will be secret trials. It just shreds the [U.S.] Constitution into itty-bitty pieces."

The government's position contrasted with earlier public statements, in which Hartmann and military prosecutors vowed to share everything with the defendants. "As to classified, there will be no secret trials," Hartmann said when he announced the charges in the Sept. 11 conspiracy case last February, before the defendants declared they wanted to represent themselves. "Every piece of evidence, every stitch of evidence, every whiff of evidence that goes to the finder of fact, to the jury, to the military tribunal will be reviewed by the accused, subject to confrontation, subject to cross-examination, subject to challenge."

Decisions about classified evidence will be up to the military judges presiding over military commissions cases, and Hartmann has said he will allow prosecutors to put forward classified evidence derived from the CIA's enhanced interrogation techniques and leave it up to the judge to determine its legality. Still, prosecutors could try to keep some classified evidence out of the defense's hands.

"If the military judge agrees that the classified information is relevant and material to the defense and that there is no reasonable alternative, then the military judge may order the prosecution to disclose the classified information or dismiss the charge and specification to which the classified information pertains," according to the e-mailed statement.

Eugene R. Fidell of the National Institute of Military Justice said he thinks detainees must have a way to confront classified evidence and the people who interrogated them.

"Otherwise, I don't see how the interest in public confidence in the administration of justice can be served," said Fidell. "Does he have a right to challenge the circumstances under which his statements were made or not? Does he have a right to say how he was treated or not?"

Classified information requires special handling in a Sensitive Compartmented Information Facility - known as a SCIF - and prosecutors have indicated that they would ensure that such a facility would be made available for the defendants' use. The entire courtroom complex at Guantanamo is considered a SCIF, and there are five small holding cells inside the compound where detainees are held before court hearings.

"How they are going to do this, I have no idea," said Navy Lt. Richard Federico, who has been assigned to represent Binalshibh. "These individuals have been subject to the very things that are classified, including sources, methods and techniques. But they don't have a clearance, obviously, so I have no idea how they're going to rectify that."