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.”
But Frakt says the timeline reveals that Hartmann “had foreknowledge, in one case, seven weeks in advance of the exact day charges would be filed against a detainee.” This was the case of Ahmed al-Darbi, an alleged member of Al Qaeda, who was charged on December 20, 2007–exactly as forecast by the chart. But a new Chief Prosecutor, Col. Lawrence Morris, hadn’t arrived to take control of the prosecutor’s office until mid-November. According to Frakt, the chart suggests that this decision and many others concerning prosecutorial scheduling and strategy have been made by Hartmann.
In the case of Frakt’s own client, Mohammed Jawad, Frakt believes the chart shows that the referral of charges to trial was a foregone conclusion.
The charges were referred to trial by the convening authority in January, 2008–a date set by Hartmann’s timeline, says Frakt. Yet in his June testimony, Hartmann explained that the Convening Authority had waited until January before referring charges in order to review additional evidence. “But in fact, the chart makes it clear that he had already made up his mind that it was going to trial–long before he actually recommended the case be referred to trial, and he was confident it would be [referred].”
In the case of the alleged 9/11 co-conspirators, Frakt believes that Hartmann was not candid with the public about the decision to try defendants jointly. During a February 11 press conference to announce the charges, Hartmann said, “The decision to try them together or the recommendation to try them together was made by the chief prosecutor.” But Frakt says that according to the language in the November chart, Hartmann had already outlined that it would be a joint trial–revealing an involvement in their charges that he’d heretofore attempted to obscure.
Hartmann had also been asked during this and other press conferences about a time frame for charges being referred and when trials would begin. Hartmann was uniformly noncommittal, saying “there is no specific timeline” and “one can never predict.” Yet, according to Frakt, this belies the fact that Hartmann had indeed already made these predictions and was working with the prosecution and convening authority to assure they’d come to fruition.
Frakt’s allegations aren’t the first to claim Hartmann has inappropriately meddled in the affairs of the prosecution. The accusations first arose last year when then-chief prosecutor Col. Morris Davis complained Hartmann was violating the Rules of the Military Commissions, which state that “no person may attempt to coerce or by any unauthorized means influence the exercise of professional judgment” by the prosecution.
Davis’ complaint prompted an internal investigation, after which Hartmann was admonished not to align himself too closely with the prosecutorial function. Davis later resigned in part, he says, because of Hartmann’s continued meddling.
And in May this year, a judge disqualified Hartmann from continuing to provide legal advice in the case of Salim Hamdan, because the judge said he had exerted improper influence over the prosecution. (The Hamdan case is scheduled to go to trial next week, in what will be the first trial of these military commissions.) Davis testified in that hearing on behalf of the defense.
“I don’t know how you’re going to do an independent and objective review of the charges when you’ve already got a date for the referral of charges set on the calendar,” Davis said, upon hearing about this latest piece of evidence.
Davis believes that Hartmann’s intent was clear from the beginning “he once told me, ‘the way we validate this process is to get back into court, present evidence, and get convictions and good sentences.’ ”
But according to Frakt, Hartmann appeared to overstep his role in trying to make that happen.
“He went well beyond attempting to motivate and facilitate the military commissions effort,” says Frakt, “he became actively involved in the prosecution strategy, and that wasn’t his job.”
Hartmann’s stance has “eroded the independence of his own function and the independence of the Convening Authority,” says Eugene Fidell, a professor of military law at Yale Law School and Washington College of Law. “This has been the problem from the beginning.”
Fidell is uncertain if this latest revelation is fatal to the entire commissions, but says “the commissions are already under tremendous pressure and at a certain point, even a battleship can take only so many holes in its hull before it rides lower and lower until it eventually sinks.”
“This development is enormous,” says Frakt, who thinks it should spell the end of Hartmann’s association with the military commissions. He also thinks this could spell the end of the commissions themselves. “They’ve taken a lot of body blows over the past couple months. This could be their knockout punch.”