Team Infidel
Forum Spin Doctor
Wall Street Journal
May 12, 2008
Pg. 3
By Jess Bravin
WASHINGTON -- The Pentagon is set any day now to approve trials at Guantanamo Bay for Khalid Sheikh Mohammed and five others accused in the Sept. 11, 2001, terrorist attacks. But a military-court ruling late last week against a top Defense Department war-crimes official throws a new cloud over the Bush administration's plan to prosecute the alleged Sept. 11 conspirators before the president leaves office in January.
The proposed charges were announced in February by Brig. Gen. Thomas Hartmann, a hard-charging Air Force reservist brought in to jump-start the long-stalled plan for offshore trials.
Friday, a military judge at Guantanamo barred Gen. Hartmann from participating in the case against Salim Hamdan, Osama bin Laden's former driver, who faces a potential life term. The judge, Navy Capt. Keith Allred, granted a defense motion alleging an "unlawful command influence."
Mr. Hamdan's Navy lawyer, Lt. Cmdr. Brian Mizer, had alleged that Gen. Hartmann's dual role of supervising the prosecution and providing legal advice to the commissions administrator, who must make impartial rulings on issues raised by both the prosecution and defense, constituted a conflict of interest.
Pentagon press secretary Geoff Morrell said Sunday that officials were surprised at the ruling, because they believe the structure Capt. Allred rejected is similar to that used in courts-martial. The Pentagon is considering asking the military judge to reconsider his ruling, Mr. Morrell said.
Friday's ruling applies only to the Hamdan case. But defense lawyers say underlying issues apply to every prosecution at Guantanamo and are certain to resurface in other trials. Cmdr. Mizer, who also represents alleged 9/11 conspirator Ali Abdul Aziz Ali, said he plans to file a similar motion in that case.
Unlike most military defendants, Mr. Hamdan had an unusual ally in his motion: Col. Morris Davis, who resigned as chief prosecutor in October after clashes with Gen. Hartmann over control of the prosecution office. Col. Davis claimed that Gen. Hartmann had breached legislation authorizing the military commissions, which seeks to insulate the prosecution from improper influence. The Pentagon backed Gen. Hartmann. Deputy Defense Secretary Gordon England approved the arrangement.
Rather than quietly seeking reassignment, Col. Davis launched a public campaign to vindicate his position, granting interviews and writing opinion articles. Among other allegations, Col. Davis suggested political motivations behind the selection and timing of certain cases, and complained that Gen. Hartmann had second-guessed some of his decisions, such as excluding evidence obtained through waterboarding, an interrogation method critics call torture.
Last month, Col. Davis, called as a defense witness, testified in a Guantanamo courtroom that the process had been tainted.
Mr. Morrell said he didn't expect the issue to resurface in other cases, because Col. Davis left the military commissions office before charges were submitted for the 9/11 conspiracy. But Gen. Hartmann has been involved in developing the 9/11 cases, officials have said, which might still allow defense attorneys to question whether those charges have been tainted.
Capt. Allred denied other defense requests, notably to have Mr. Hamdan's charges dismissed. Capt. Allred's 13-page ruling adopting as official findings many of the allegations Col. Davis had made and that Pentagon officials had previously dismissed.
The order removes Gen. Hartmann from any role in Mr. Hamdan's case, bars the appointment of any of Gen. Hartmann's deputies as his successor and forbids any retaliation against military officers who offered testimony against Gen. Hartmann.
Cmdr. Mizer said the ruling would do nothing to change Mr. Hamdan's immediate circumstances and that he would be back in court for another hearing later this month.
May 12, 2008
Pg. 3
By Jess Bravin
WASHINGTON -- The Pentagon is set any day now to approve trials at Guantanamo Bay for Khalid Sheikh Mohammed and five others accused in the Sept. 11, 2001, terrorist attacks. But a military-court ruling late last week against a top Defense Department war-crimes official throws a new cloud over the Bush administration's plan to prosecute the alleged Sept. 11 conspirators before the president leaves office in January.
The proposed charges were announced in February by Brig. Gen. Thomas Hartmann, a hard-charging Air Force reservist brought in to jump-start the long-stalled plan for offshore trials.
Friday, a military judge at Guantanamo barred Gen. Hartmann from participating in the case against Salim Hamdan, Osama bin Laden's former driver, who faces a potential life term. The judge, Navy Capt. Keith Allred, granted a defense motion alleging an "unlawful command influence."
Mr. Hamdan's Navy lawyer, Lt. Cmdr. Brian Mizer, had alleged that Gen. Hartmann's dual role of supervising the prosecution and providing legal advice to the commissions administrator, who must make impartial rulings on issues raised by both the prosecution and defense, constituted a conflict of interest.
Pentagon press secretary Geoff Morrell said Sunday that officials were surprised at the ruling, because they believe the structure Capt. Allred rejected is similar to that used in courts-martial. The Pentagon is considering asking the military judge to reconsider his ruling, Mr. Morrell said.
Friday's ruling applies only to the Hamdan case. But defense lawyers say underlying issues apply to every prosecution at Guantanamo and are certain to resurface in other trials. Cmdr. Mizer, who also represents alleged 9/11 conspirator Ali Abdul Aziz Ali, said he plans to file a similar motion in that case.
Unlike most military defendants, Mr. Hamdan had an unusual ally in his motion: Col. Morris Davis, who resigned as chief prosecutor in October after clashes with Gen. Hartmann over control of the prosecution office. Col. Davis claimed that Gen. Hartmann had breached legislation authorizing the military commissions, which seeks to insulate the prosecution from improper influence. The Pentagon backed Gen. Hartmann. Deputy Defense Secretary Gordon England approved the arrangement.
Rather than quietly seeking reassignment, Col. Davis launched a public campaign to vindicate his position, granting interviews and writing opinion articles. Among other allegations, Col. Davis suggested political motivations behind the selection and timing of certain cases, and complained that Gen. Hartmann had second-guessed some of his decisions, such as excluding evidence obtained through waterboarding, an interrogation method critics call torture.
Last month, Col. Davis, called as a defense witness, testified in a Guantanamo courtroom that the process had been tainted.
Mr. Morrell said he didn't expect the issue to resurface in other cases, because Col. Davis left the military commissions office before charges were submitted for the 9/11 conspiracy. But Gen. Hartmann has been involved in developing the 9/11 cases, officials have said, which might still allow defense attorneys to question whether those charges have been tainted.
Capt. Allred denied other defense requests, notably to have Mr. Hamdan's charges dismissed. Capt. Allred's 13-page ruling adopting as official findings many of the allegations Col. Davis had made and that Pentagon officials had previously dismissed.
The order removes Gen. Hartmann from any role in Mr. Hamdan's case, bars the appointment of any of Gen. Hartmann's deputies as his successor and forbids any retaliation against military officers who offered testimony against Gen. Hartmann.
Cmdr. Mizer said the ruling would do nothing to change Mr. Hamdan's immediate circumstances and that he would be back in court for another hearing later this month.