Shake-Up at Gitmo: A Prosecutor Resigns, Citing 'Ethical Qualms' Over Suppressed Evidence

On September 24, Col. Lawrence Morris, the chief prosecutor of Guantánamo's Military Commission trial system, announced that Lt. Col. Darrel Vandeveld, the prosecutor in the case of Mohamed Jawad (an Afghan -- and a teenager at the time of his capture -- who is accused of throwing a grenade at a jeep containing two U.S. soldiers and an Afghan translator), had asked to quit his assignment before his one-year contract expired.

Although Col. Morris attempted to explain that Lt. Col. Vandeveld was leaving "for personal reasons," the real reasons were spelled out in a statement issued by Vandeveld, in which (as the Associated Press explained) he wrote that "potentially exculpatory evidence" had "not been provided" due to a failure on the part of the "prosecutors and officers of the court." On Thursday, the Washington Post reported that he had stated, "My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain 'procedure' for affording defense counsel discovery."

According to Michael Berrigan, the Commissions' deputy chief defense counsel, Vandeveld said that prosecutors knew that Jawad, who has always denied throwing the grenade, may have been drugged before the attack and that the Afghan Interior Ministry said that two other men had confessed to the same crime.

In his statement, Lt. Col. Vandeveld also wrote that he had wanted to offer Jawad a plea deal "that would allow him to receive rehabilitation after a short period of additional confinement," but that his commanding officers had disagreed. "As a juvenile at the time of capture," he wrote, "Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him." He added, "I am bothered by the fact that this was not done."

Lt. Col. Vandeveld's departure -- and his reasons for leaving -- are another serious blow to the credibility of the Military Commissions, which were established by Dick Cheney and his close advisers in November 2001. In June 2006, they were ruled illegal by the U.S. Supreme Court, and although they were revived by Congress later that year in the much-criticized Military Commissions Act, they have never escaped accusations that they are a parody of justice, designed to secure convictions at all costs. Even so, Lt. Col. Vandevelt's profound criticisms of a system that imprisons juveniles instead of rehabilitating them, and that suppresses evidence relevant to the defense, is just part of a much darker narrative that has been unfolding for the last eighteen months.

The role of Brig. Gen. Hartmann

From this perspective, an even more significant event was the Pentagon's announcement, on September 19, that Brig. Gen. Thomas Hartmann had been removed from his post as legal adviser to the Convening Authority overseeing the Commission process, which, as the Washington Post recently explained, is "a Pentagon office that is required to exercise a neutral role in the commissions, overseeing but not dictating the work of prosecutors and allocating resources to both the prosecution and defense."

Hartmann, a reservist whose civilian job is chief counsel to the Connecticut-based Mxenergy Holdings Inc., became the legal adviser to the Convening Authority in July 2007, and was also required to "exercise a neutral role." According to the rules set up for the Commissions, he was "supposed to provide impartial advice" to the Convening Authority (retired judge Susan Crawford), and was also supposed to "make an independent and informed appraisal of the charges and evidence," to help Crawford "decide whether charges proposed by the prosecutors are sufficient to go to trial."