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.

Human Rights for Whom?: Mediascout

Human Rights for Whom?

If only the left hand seemed to know what the right hand was up to, the public may have actually believed the sanctimonious speech delivered by US President George W. Bush yesterday that was meant to call out China on its human rights violations. Speaking from Bangkok yesterday, President Bush boldly criticized the way in which the Chinese government treats it human rights activists and political dissenters. “We speak out for a free press, freedom of assembly and labour rights, not to antagonize China’s leaders, but because trusting its people with greater freedom is the only way for China to develop its full potential.” It seems that the president did not mention the treatment of prisoners in his speech, perhaps because on that same day his government was busy convicting Salim Hamdan in a trial that human rights groups are calling a “sham.” Hamdan, Osama bin Laden’s former driver, was the first person to be charged in the war crimes tribunal in Guantanamo Bay launched by the Bush administration. It is the first US war crimes trial since the Second World War.

Hamdan, who was Bin Laden’s driver from 1995 to 2001, was convicted on five charges of aiding terrorism but acquitted on three charges of conspiring to plot the 9/11 attacks. Deputy White House spokesperson Tony Fratto has called it a “fair trial,” but the Big Seven would have us believe otherwise. Because the trial was run by a military commission rather than through regular US legal channels, Hamdan was not afforded the same rights that other US prisoners would be granted in his position. The Post reports that the trial included testimony that Hamdan was not aware would be used in court, while CTV points out that the case was tainted by coercive tactics such as sleep deprivation and solitary confinement. Ben Wizner of the American Civil Liberties Union points out that never before has

“a military tribunal been convened to punish such a low-level offender for such a low-level charge.”

It is expected that the Bush administration will push ahead with the prosecution on war crimes charges of eighty other Guantanamo detainees before Bush leaves office in January. Perhaps by then Bush will have applied his own human rights rhetoric to lessons at home.

Vivian Belik is a Winnipeg-based MediaScout writer for Maisonneuve Magazine.

Panel Convicts Bin Laden Driver in Split Verdict (!!!!!)

And you thought you'd already heard EVERYTHING ?????

Guess not.

Ain't THIS this pitz ?

Think about it .. this man was tortured, held in solitary, the MCA is illegal and STILL the BuZhistas must go and "get their man" regardless of its effects on international relations.

By WILLIAM GLABERSON

Published: August 6, 2008

GUANTÁNAMO BAY, Cuba — A panel of six military officers convicted a former driver for Osama bin Laden of one of two war crimes charges on Wednesday but acquitted him of the other, completing the first military commission trial here and the first conducted by the United States since the aftermath of World War II.

Associated Press

Salim Ahmed Hamdan in an undated photograph.

Back Story With The Times’s Jonathan Mahler (mp3)

Related

Guantánamo Bay Judge Admits Possible Error

(August 6, 2008)

Salim Ahmed Hamdan, in 1999.

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In a setback for the military prosecutors, the commission acquitted the former driver, Salim Ahmed Hamdan, of a conspiracy charge, arguably the more serious of the two charges he faced. At a trial that included references to the landmark Nuremberg war-crimes trials of Nazi leaders in the 1940s, Mr. Hamdan was convicted on a separate charge of providing material support for terrorism.

The split verdict gave both sides in the long debate over the procedures here grounds for their competing claims. Supporters said the system’s fairness was illustrated by the careful verdict, while critics said the trial, which featured secret evidence and closed proceedings, demonstrated the injustice of the Bush administration’s military commission system.

Mr. Hamdan, who has said he is about 40, could be sentenced by the panel to anything from no imprisonment to a life term. The sentence is to be determined after a separate proceeding before the same panel, which began Wednesday afternoon, after the announcement of the verdict. At that hearing, the defense worked to portray Mr. Hamdan sympathetically as a man with few choices who felt “betrayed by bin Laden” when he learned about terrorist attacks.

The sentence is expected to be announced as soon as Thursday. Its severity could provide an insight into the military panel’s view of the case, which has been criticized because Mr. Hamdan was a minor figure in Al Qaeda.

On Wednesday, the judge granted a defense request that Mr. Hamdan be credited for more than five years of pretrial confinement since he was first charged in 2003. If the panel imposes a short sentence, lawyers said, the administration would be under increased pressure to justify continuing to hold a detainee who might already have completed his term after a conviction.

The Bush administration has long asserted that it could continue to hold detainees even if they were acquitted or given short sentences because they are designated enemy combatants who, according to the administration, can be held until the end of the war on terror.

As the verdict was read just after 10 a.m. on Wednesday in an old airport building at the isolated naval station here, Mr. Hamdan, a Yemeni who has been in custody since he was detained in Afghanistan in November 2001, stood passively at the defense table. He wore a traditional white headscarf. His head was bent slightly to one side.

The conviction of Mr. Hamdan, who was part of a select group of drivers and bodyguards for Mr. bin Laden until 2001, was a long-sought, if qualified, victory for the Bush administration, which has been working to begin military commission trials here for nearly seven years.

The six senior military officers on the panel deliberated for eight hours over three days. Four votes in a secret ballot were required for conviction.

Critics have long contended that the military commission system does not meet American standards, partly because it allows hearsay evidence and evidence derived through coercive interrogation methods.

The verdict did not mute the critics. Larry Cox, executive director of Amnesty International USA, said the trial “revealed what is common knowledge — the military commissions are fatally flawed and do not adhere to major aspects of the rule of law.”

But the military prosecutors said the verdict supported their contentions that Mr. Hamdan was a “career Al Qaeda warrior” who was pledged to protect Mr. bin Laden from the mid-1990s until after the Sept. 11 attacks. The chief military prosecutor, Col. Lawrence J. Morris of the Army, added that the verdict validated the system “as an extraordinarily fair, open and just process that produces a reliable result.”

Michael J. Berrigan, the deputy chief defense counsel for Guantánamo, said the defense was encouraged by the verdict.

“For a team that was expected to strike out at every pitch,”

Mr. Berrigan said,

“we at least hit a triple.”

He described the conspiracy charge that was rejected by the panel as the government’s main charge, and noted that when Mr. Hamdan was originally charged in 2003 the only charge he faced was conspiracy.

Charles D. Swift, a former Navy lawyer who has represented Mr. Hamdan for years, said the case would eventually reach the American court system, which he predicted would correct legal errors here. Mr. Swift called the military commission “a made-up tribunal to try anybody we don’t like.”

Defense lawyers have long argued that the charge on which Mr. Hamdan was convicted, material support for terrorism, has not historically been part of the international law of war, which is the law applied by the military commissions. Prosecutors say that, although the term “material support” may not have existed historically, the laws of war have long prohibited stealthy attacks on civilians, the mainstay of terrorism groups.

After an appeal to a military appeals court, convicted detainees can take their cases to a civilian federal appeals court and, potentially, to the Supreme Court.

The panel rejected two specifications that would have supported a conviction for conspiracy. One asserted that Mr. Hamdan was part of the larger conspiracy with senior Qaeda leaders and shared responsibility for terror attacks including the 2001 terror attack.

The second conspiracy specification rejected by the panel asserted that Mr. Hamdan was part of a conspiracy to kill Americans in Afghanistan in 2001 with shoulder-fired missiles.

But the panel voted to convict Mr. Hamdan of five of eight specifications that made up the charge of providing material support for terrorism. The specifications included accusations that he drove Mr. bin Laden, served as his bodyguard, was a member of Al Qaeda and knew its goals.

During the sentencing hearing the judge, Keith J. Allred, a Navy captain, told the panel members that the specifications were duplicative and that they should sentence Mr. Hamdan as if he had been convicted of only one specification.

For the Bush administration, a conviction on any charge represented a singular victory, partly because a case brought on Mr. Hamdan’s behalf reached the Supreme Court in 2006. That case, Hamdan v. Rumsfeld, ended with a ruling that derailed the Bush administration’s first plan for military commission trials here.

Tony Fratto, the deputy White House press secretary, said the administration was pleased that Mr. Hamdan received a fair trial, with an opportunity to present a defense against serious charges.

“The military commission convicted Hamdan of material support for terrorism,” Mr. Fratto said in a statement. “The military commission system is a fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States or our interests. We look forward to other cases moving forward to trial.”

The two-week trial included references by both sides to the Nuremberg trials.

Prosecutors, eager to shore up the image of the commissions here, presented a video that included graphic images of Qaeda terror attacks and their victims that they titled “The Al Qaeda Plan,” in reference to “The Nazi Plan,” a film shown at Nuremberg to document the Holocaust.

The defense noted that Hitler’s driver, Erich Kempka, was not prosecuted as a war criminal at Nuremberg.

Much of the case against Mr. Hamdan was based on his own descriptions of his role as a driver collected by federal agents in more than 40 interrogations, including some that lasted many days.

In the sentencing hearing on Wednesday afternoon, a psychiatrist called by the defense described Mr. Hamdan’s feeling of having been betrayed by Mr. bin Laden, although she did not fully explain why.

The psychiatrist, Dr. Emily A. Keram, also described what she said was Mr. Hamdan’s emotional reaction to seeing “The Al Qaeda Plan” at his trial, with its images of attacks and screaming victims.

Dr. Keram said that Mr. Hamdan had described being shocked by the images. “He told me that it was hard on his soul,” she said, adding that “he felt that his head was going to explode.”

Prosecutors argued that Mr. Hamdan had protected and ferried Mr. bin Laden to elude detection, including after the Sept. 11 attacks. However small his role in Al Qaeda, they said, people like Mr. Hamdan make Al Qaeda possible.

Defense lawyers argued that there was no evidence that Mr. Hamdan was involved in planning any Qaeda operations or had advance knowledge of them. They contended that his role as a driver was just a job for a father of two who “had to earn a living,” as one of his lawyers, Harry H. Schneider Jr., said.

News of Hamdan's trial .. (well, didn't you EXPECT a mistrial?)

Guantanamo war crimes trial nearly dismissed
Nepal News.Net
Tuesday 5th August, 2008

The US military will continue its first Guantanamo war crimes trial, even though the military court narrowly avoided a possible mistrial on Tuesday.Prosecutors and defence lawyers fought over instructions provided to jurors weighing the fate of Osama bin Laden’s former driver, causing jurors to end their day without a verdict. Military prosecutors said the judge improperly instructed jurors on a legal definition, a mistake that potentially makes it more difficult to convict Salim Hamdan in the first US war crimes trial since World War II.The judge, Navy Capt. Keith Allred, said he in fact may have given an incorrect definition of a war crime, but said it was too late to revise his instructions.The defence said redoing the instructions would prompt a mistrial and the prosecution agreed to allowing the trial to proceed.Hamdan is charged with two counts of conspiracy and eight of aiding terrorism by transporting shoulder-launched missiles to kill US service members.

Guantanamo war crimes defendant helped Bin Laden succeed, FBI agent testifies

Bit players like the Al Qaeda leader's driver are key to protecting Bin Laden, says a spy who interrogated Salim Ahmed Hamdan for 13 days, building a relationship with him by giving him snacks and oth

By Carol J. Williams, Los Angeles Times Staff Writer
July 26, 2008

GUANTANAMO BAY, CUBA -- Salim Ahmed Hamdan may have been only a driver for Osama bin Laden, but the legions of bit players in Al Qaeda are what has allowed the terrorist leader to succeed, an FBI agent testified Friday.

"Without people like Mr. Hamdan, Bin Laden would enjoy no support, he would not enjoy protection and he probably would not have been able to elude capture up to this point," Special Agent George M. Crouch Jr. told the military jurors hearing the first U.S. war crimes case in 60 years.

The prosecution witness told the court that Hamdan's cooperation with at least 40 U.S. government interrogators in the months after his November 2001 capture was helpful in the fight against terrorism but does not diminish his responsibility.

But Crouch acknowledged under cross-examination that if he had interrogated Hamdan anywhere but the U.S. military prison at Guantanamo Bay, he would have advised him that what he said could be used against him.

"I would have read him his rights," said Crouch, who spent 13 days interrogating Hamdan in June and July 2002. The FBI, like more than a dozen other U.S. government agencies, has had a policy against extending constitutional rights -- including the protection against self-incrimination, known as Miranda rights -- to Guantanamo prisoners since they were brought here from Afghanistan and other conflict areas in January 2002.

Crouch told the six-member jury how he built a trusting relationship with Hamdan during the marathon interrogation, bringing him special snacks and working to ease his "concerns," like letting his wife know that he was still alive.

In the first days of his talks with Hamdan, Crouch and two other FBI agents arranged for him to call his wife in Yemen. He had not been allowed to inform anyone of his whereabouts since his capture in southern Afghanistan on Nov. 24, 2001, at a roadblock manned by Afghans collaborating with U.S. forces. He then disappeared into the secret U.S. network of prisons and interrogation operations until his arrival here in May 2002.

"Mr. Hamdan cried quite a bit. He was very grateful for the opportunity to speak with his wife, mostly I would say grateful and relieved as well that the burden had been lifted. At least his wife knew he was alive," Crouch recalled.

The 10th U.S. federal agent to testify about information provided by Hamdan and now being used against him, Crouch also recounted how he lashed out against the Guantanamo detention officials when they moved Hamdan into solitary confinement during the FBI visits, leaving the prisoner to believe he was being punished for something. The agent complained to the Joint Task Force about the chilling effect the move was having on his work with Hamdan, and the prisoner was returned to a regular cell within 24 hours, Crouch said.

The agent was unaware, though, that during the night Hamdan was also brought to interrogators of another U.S. agency, which under the secrecy practices of the war-crimes court cannot be identified. Detention records handed over to defense lawyers only 12 hours before the trial started included an "SOP" -- standard operating procedure -- on how to exploit the disorientation felt by recently arrived detainees.

Defense lawyers attempted to shed some light on Hamdan's treatment in the hands of U.S. secret agents -- apparently from the CIA -- during nearly a month at the end of 2001 when his whereabouts haven't been accounted for. But a "protective order" from the court prohibits any mention of that period or agency.

The judge, Navy Capt. Keith J. Allred, ruled Monday, on the eve of the trial, that no statements from Hamdan during that period would be admitted because of the "highly coercive" conditions under which they were extracted.

Hamdan is charged with conspiracy and material support for terrorism, and could face a life sentence if convicted. .

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US war crimes court to resume at Guantanamo

By MIKE MELIA – 16 hours ago

GUANTANAMO BAY NAVAL BASE, Cuba (AP) — U.S. military tribunals at Guantanamo Bay resume this week even as new legal challenges could throw the system into further turmoil.

Five men charged in the Sept. 11 attacks, including alleged mastermind Khalid Sheikh Mohammed, are to appear Wednesday and Thursday for pretrial hearings in the Bush administration's special tribunal for terrorism suspects. Their trials have not yet been scheduled.

The suspects could get the death penalty if convicted of charges that include murder.

A judge is expected to hold hearings to explore defense allegations that Mohammed intimidated his co-defendants into refusing military lawyers.

Meanwhile, a judge in Washington is considering a challenge that could disrupt the first scheduled war crimes trial, on July 21, of Salim Hamdan, a former driver for Osama bin Laden.

Hamdan's lawyers say a recent Supreme Court decision has raised new legal issues that require U.S. District Judge James Robertson to delay the trial. The government says it wants to move forward.

Robertson has scheduled a July 17 hearing in Washington on the issue, just four days before Hamdan is to go on trial in a specially built courtroom on a former airstrip at the U.S. Navy base in Cuba.

A ruling in favor of the prisoner could also delay the trials for other men held at Guantanamo, and perhaps force the military to devise a whole new way to prosecute alleged terrorists.

"If a federal court enjoins the proceedings, that would be the death knell for the military commissions," said Sahr MuhammedAlly, a lawyer with Human Rights First.

Hamdan, a Yemeni, faces up to life in prison if convicted of supporting terrorism. The U.S. has said it plans to prosecute about 80 Guantanamo prisoners.