As the United States moves forward with the first American military tribunal in over fifty years, in the case against Osama bin Laden’s driver Salim Hamdan, new evidence has emerged in another Guantánamo case–that of Mohammed Jawad–that the integrity of entire military commissions system has been corrupted.
According to a document filed in court by Jawad’s attorney on July 15, Brig. General Thomas Hartmann, the highest-ranking officer and top lawyer overseeing Guantánamo’s military tribunals, has misled the court, the press and the American public, and should be disqualified from the process. Major David Frakt, Jawad’s defense counsel, brings to light new evidence that Hartmann has been deeply involved in prosecutorial matters–a role that contradicts his mandate to provide impartial legal advice to the office of the Convening Authority which runs the Commissions–raising serious doubts about the ability of the Commissions to administer justice.
The evidence is a timeline chart prepared by Hartmann that lays out plans for upcoming cases–including which cases would be charged, when they would be charged, when certain charges would be validated and sent to trial and, in some cases, how they would be tried. The problem is that the timeline was created in early November 2007, before many of those decisions should have been made. Those decisions are the purview of the Chief Prosecutor and the Convening Authority, who must arrive at them after lengthy consideration of the evidence and deliberation with advisors and other prosecutors. But, according to Frakt, the timeline suggests that those decisions were preordained by Hartmann.
“As legal advisor General Hartmann’s duty has been to provide independent and impartial advice to the Convening Authority,” says Frakt. (The Convening Authority is a quasi-neutral, quasi-judicial arbiter that oversees the commissions and makes crucial decisions about the allocation of resources, the use of expert witness and which charges are worthy of going to trial and which warrant clemency.) “But his role is made impossible when he is so deeply and partially involved in the strategic planning of prosecutorial efforts, as the chart suggests he is.”
Neither the chart nor the document submitted to the court have yet been released to the public, but Frakt has detailed some of their contents to The Nation.
Reached for comment, Lt. Col. Darrel Vanderveld, lead prosecutor in the Jawad case, disputed Frakt’s description of the chart’s role in the Guantánamo cases. “The chart reflects the Office of Military Commissions’ aspirational goals for moving the legal process forward…. If one were to compare the aspirational goals listed on that chart to reality, the evidence shows there was no influence on the timing of the prosecution of cases,” he said. (The office of military commissions refused to provide a copy of the chart to conduct a comparison.)
According to Frakt, the chart reveals that Hartmann was likely making the decisions about who to charge and when–behavior that contradicts testimony Hartmann had given on the subject just one month ago.
During a pretrial hearing in June on a motion to dismiss charges against Jawad based on unlawful influence, Hartmann said, “In general…I believe it is the Chief Prosecutor’s responsibility to determine who to charge.”