Officials in Gitmo Trials Not Even Pretending to be Impartial

By Ross Tuttle, The Nation. Posted April 3, 2008.

On March 27th, 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 received on January 29th. 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.

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