Out of Bounds
Over the last seven years, military officers and senior political appointees have skirmished on a variety of topics, from pre-Iraq war intelligence to troop levels to the conduct of counterinsurgency operations. But in one area, detention and interrogation policy, military officers have pushed back particularly hard against what they perceive to be fundamentally flawed (and blatantly unlawful) decisions by the Bush administration.
The latest skirmish takes place at Guantanamo Bay. Navy Capt. Keith Allred, a judge presiding over the military commission for Salim Ahmed Hamdan, issued an opinion barring Air Force Brig. Gen. Thomas Hartmann from any further participation in the prosecution, because of his vigorous public advocacy on behalf of the Pentagon and pressure on lawyers handling the cases, among other things.
According to the Times:
The judge, a navy captain, provided the critics with pages of new material to underscore their attacks on the system. He said he accepted accusations by a former GuantÃ¡namo chief prosecutor, Col. Morris D. Davis, that a military official with broad powers over the tribunal system, Brig. Gen. Thomas W. Hartmann, had exerted improper influence over the prosecutors.
"Telling the chief prosecutor (and other prosecutors)," the decision said, "that certain types of cases would be tried and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play."
In the past, General Hartmann had denied that he had political motives in pressing for progress in what has been a problem-plagued war crimes system.
But the decision sided with Colonel Davis, who has become a harsh critic of the system he once helped run. His most contentious claim has been that General Hartmann pressed him to use evidence that he had rejected because it had been obtained through interrogation techniques critics view as torture, like the simulated drowning known as waterboarding.
The judge, Capt. Keith J. Allred, noted that prosecutors have an ethical obligation to present only evidence they consider reliable. At a hearing in GuantÃ¡namo on April 28, Colonel Davis testified that before General Hartmann was appointed last summer, prosecutors had been building cases without using evidence derived through waterboarding because Colonel Davis considered it unreliable. He testified that General Hartmann overruled that approach.
Judge Allred wrote that directing the use of "evidence that the chief prosecutor considered tainted and unreliable, or perhaps obtained as a result of torture or coercion, was clearly an effort to influence the professional judgment of the chief prosecutor."
It's looking increasingly likely that the military commissions at Guantanamo Bay will never go forward. Which may or may not be a good thing, depending on your perspective. Nonetheless, this ball is going to be punted into the hands of the next administration, and they're going to have to run with it. All three candidates have said they plan to close Guantanamo Bay. But that will not moot the issue of what to actually dowith these prisoners -- particularly the decision to as whether to try them or not.
I tend to think that we have botched the commissions process so badly that the only viable path at this point is to try these men in federal criminal court or by military courts-martial. At least then we could trust the process, and hope that the process would confer some legitimacy on the results.
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