On March 27 Lieut. Cmdr. Brian Mizer, defense attorney in the office of military commissions, filed a motion to dismiss charges against his client Salim Hamdan, the alleged chauffeur of Osama bin Laden, who has been detained at Guantánamo since 2002. In his motion, Mizer alleges unlawful interference in the affairs of the defense and prosecution by political appointees within the Pentagon and by the office of Susan Crawford, the convening authority.
Hamdan has been at the center of several pivotal developments within the military commissions process--most notably as named plaintiff in the Supreme Court case (Hamdan v. Rumsfeld) that upended the previous incarnation of the tribunals. His case is slated to be tried this summer, one of the first under the new system developed by the Military Commissions Act of 2006. But this latest motion could result in yet another stinging setback for an administration desperate for victories in a maligned process that has seen only one case resolved in six years.
Central to Mizer's claim is a piece of evidence suggesting that Crawford's legal adviser, Brig. Gen. Thomas Hartmann, is so ensconced in the prosecution that he has become the de facto chief prosecutor--a highly improper role according to observers, participants and the Military Commissions Act itself.
"The convening authority is supposed to be this quasi-neutral, quasi-judicial functionary who chooses the jury that hears Hamdan's case and others," says Mizer. "So if that person has become a partisan, you essentially have the prosecutor picking the jury, and that's simply unfair."
In addition to selecting the jury, the convening authority (Crawford) must also review the charges, refer them to trial, approve allocations for expert witnesses and serve as the first stop in the appeals process--roles that all require neutrality. By extension, the convening authority's adviser (Hartmann) must also be impartial.
Mizer's motion draws heavily on familiar claims made by the former chief prosecutor, Col. Morris Davis, who resigned last October, complaining of the use of coerced testimony and political pressure to try "sexy" cases in the run-up to the 2008 elections. Davis had singled out Crawford, Hartmann and former Pentagon general counsel William Haynes, who has since resigned, for interfering in the process or applying political pressure. Davis, who has also submitted his resignation to the Air Force, has agreed to testify as a witness for the defense at Hamdan's April pretrial hearing.
Mizer's motion also introduces new evidence to corroborate Davis's account--chiefly an e-mail that deputy chief defense counsel Mike Berrigan inadvertently recieved on January 29. The e-mail was titled "9-11 Draft Charges-25 Jan," and it came with an attachment of the draft charges against the six high-value detainees alleged to have participated in the 9/11 plot. That a defense attorney received these charges in draft form two weeks before charges were announced was unusual enough, but the source of the message was even more surprising. It had come from Wendy Kelly, chief of staff in the office of the convening authority.
"What that e-mail shows is who's drafting the charges," says Mizer. "It's not the prosecutor, which is intended to be an independent office according to Congress. It's the convening authority."
Two weeks later, when Hartmann announced the charges, he opened his remarks by stating, "Today, the convening authority for military commissions received sworn charges against six individuals alleged to be responsible for the planning and execution of the attacks upon the United States of America, which occurred on September the 11th, 2001."
"It's an outright fraud," says Mizer. "The convening authority is supposed to receive the charges from the prosecutor and make an independent assessment on whether or not this goes forward. General Hartmann didn't just receive those charges; they'd been circulating in his office a full two weeks before he held that press conference."
After Berrigan received the e-mail with the draft charges, he notified the sender, asking whether she had meant to send it to him. The convening authority's office then asked for the immediate return of the charges. But when Berrigan refused, recognizing that the e-mail could be evidence of unlawful influence, Hartmann sent what Mizer called an implicitly threatening letter to chief defense counsel Steven David.
"He [Hartmann] said something like, 'I went to the ethics advice committee in the Navy, Marine Corps and Army, and they said you had no ethical basis to hold this document,'" recounted Mizer. "It's this implicit threat that what you've done is outside of the scope of ethical conduct of an attorney and you need to turn this over. And then he [Hartmann] said, 'I don't know what state you're licensed in, but I'm sure it's unethical there too.'"
To Mizer, this also qualified as unlawful influence--in that it was an attempt to "coerce" defense counsel.
According to scholars, unlawful command influence has frequently been called the mortal enemy of military justice. One way to protect against it is to mandate an independent defense and prosecution. Indeed, when two of the Military Commissions Act's authors, John McCain and Lindsey Graham, asked Davis what he would need in order to do his job as chief prosecutor, Davis said unequivocally: independence.
As a result, the authors included in the act relevant language that Davis himself wrote. Section 949b(2)c states, "No person may attempt to coerce or, by any unauthorized means, influence the exercise of professional judgment by trial [prosecution] counsel or defense counsel."
It is this rule that Hartmann appears to be flouting; at times, he seems to be celebrating his prosecutorial participation. During a February 22 NPR interview he boasted, "Colonel Davis was part of the process for two years. In that period he was able to get two cases sworn and charged. In the period of time since he's left, just four months, we've charged ten new cases."
"He's not even concealing the fact.... He's making open comparisons to his role and that of the chief prosecutor," says Mizer.
According to legal experts, therein lies the problem. Hartmann likely feels no compunction to conceal his role of "supervising the prosecution" because his appointing orders, signed in October 2007 by Deputy Defense Secretary Gordon England, authorize him to do so. Despite language in that document requesting that he maintain the ability to "objectively and independently provide cogent legal advice" to the convening authority, the order leaves room for selective interpretation--and to some, the dual orders are actually irreconcilable.
"This arrangement is rife with conflicts of interest," says Eugene Fidell, who teaches military law at Yale Law School and Washington College of Law. According to Fidell, the Military Commissions Act stresses the "exercise of professional judgment," but such neutrality would be eviscerated if England "can insert the legal adviser as a substantive supervisor to the...chief prosecutor."
"It makes for an un-impartial convening authority and an un-independent prosecutor," says Fidell. "I rather doubt that's what Congress had in mind."
To Fidell, the problems are structural, and the revelations in Mizer's motion bear that out. "The convening authority performs a quasi-judicial function," he says. "And the convening authority and legal adviser are apparently reviewing charges before they're filed? That's not how judges work."
The prosecution has until April 11 to respond to the motion, though it has already signaled opposition. If Mizer is unsuccessful at getting a dismissal, he will then seek to have Crawford and Hartmann disqualified from further participation in the Hamdan case.
"I think he [Hartmann] has a misconception of what the role of legal adviser is in the military commissions process--someone that's supposed to neutrally evaluate the evidence and decide if someone is supposed to go face trial in front of military commission," says Mizer. "Our motion is that he's become the de facto chief prosecutor and that he has to be recused."