Judge's Guantanamo Ruling Bodes Ill for System
By William Glaberson
A decision by a military judge on Friday to disqualify a top Pentagon official from any further role in a Guantánamo war crimes case was a major new challenge to the Bush administration's legal approach to the war on terrorism.
The ruling, in the case against Salim Hamdan, a detainee who was a driver for Osama bin Laden, transformed what had been something of a Pentagon soap opera over how to prosecute detainees into a formal ruling that gave new force to critics' accusations of improper political influence over this country's first use of military commissions since World War II.
At issue is the role of a Pentagon office called the "convening authority," which oversees the military prosecutors and has extensive power over the defense lawyers and judges in the cases against Guantánamo detainees. One role of that office is to be a neutral arbiter, deciding such matters as allocation of resources for both the defense and prosecution and which charges brought by prosecutors should go to trial.
But military defense lawyers and other critics have said officials running that office have overstepped the bounds of impartiality by pushing prosecutors to charge more detainees and to use evidence obtained under coercive interrogations.
Lawyers said the ruling set the stage for new challenges that could slow even the administration's highest priority Guantánamo prosecution, against six detainees for the 2001 terrorist attacks. One of the six is Khalid Shaikh Mohammed, the self-professed planner of the attacks that killed nearly 3,000 people.
"The military judge has said that, at the very least, there are grave appearance problems with this system," said Michael J. Berrigan, the deputy chief defense counsel for the Guantánamo cases.
The judge, a Navy captain, provided the critics with pages of new material to underscore their attacks on the system. He said he accepted accusations by a former Guantánamo chief prosecutor, Col. Morris D. Davis, that a military official with broad powers over the tribunal system, Brig. Gen. Thomas W. Hartmann, had exerted improper influence over the prosecutors.
"Telling the chief prosecutor (and other prosecutors)," the decision said, "that certain types of cases would be tried and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play."
In the past, General Hartmann had denied that he had political motives in pressing for progress in what has been a problem-plagued war crimes system.
But the decision sided with Colonel Davis, who has become a harsh critic of the system he once helped run. His most contentious claim has been that General Hartmann pressed him to use evidence that he had rejected because it had been obtained through interrogation techniques critics view as torture, like the simulated drowning known as waterboarding.
The judge, Capt. Keith J. Allred, noted that prosecutors have an ethical obligation to present only evidence they consider reliable. At a hearing in Guantánamo on April 28, Colonel Davis testified that before General Hartmann was appointed last summer, prosecutors had been building cases without using evidence derived through waterboarding because Colonel Davis considered it unreliable. He testified that General Hartmann overruled that approach.
Judge Allred wrote that directing the use of "evidence that the chief prosecutor considered tainted and unreliable, or perhaps obtained as a result of torture or coercion, was clearly an effort to influence the professional judgment of the chief prosecutor."
General Hartmann did not comment on Friday's ruling, which, as is common at Guantánamo, was not publicly released immediately. But in Congressional testimony after his dispute with Colonel Davis became public last fall, General Hartmann said military judges should decide whether evidence backing prosecution cases was permissible.
Under the Military Commissions Act, evidence derived through torture is inadmissible, but prosecutors can build cases with evidence obtained through coercion.
Critics of the military commission system seized on Judge Allred's ruling as the latest in a long line of challenges that have frustrated the Bush administration in its efforts since 2001 to begin war crimes prosecutions.
"The military commission process is hitting a brick wall from within the military and outside the military," said Anthony D. Romero, the executive director of the American Civil Liberties Union, which has been a vocal critic of the system.
The ruling only affected Mr. Hamdan's case, in which defense lawyers had claimed there had been unlawful influence over the prosecutors. But the case would not necessarily be delayed. It is scheduled to go to trial this month.
The judge directed the Pentagon to appoint a replacement for General Hartmann in dealing with the Hamdan case. General Hartmann is the legal adviser to Susan J. Crawford, a Pentagon official with the title of Convening Authority, who has broad powers over the entire war crimes system, including the power to approve charges, reduce sentences and make plea bargains.
General Hartmann has described Ms. Crawford as "an independent, quasi-judicial figure" who administers the Pentagon's Office of Military Commissions, which runs the war crimes system at Guantánamo.
It was that independence Judge Allred found that General Hartmann compromised by becoming so deeply involved in the prosecution that he was making decisions about what cases were to be prosecuted and how. Judge Allred called it a Pentagon official's "nanomanagement of the prosecutors' office."