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“The Exponential Growth” of Show Trials

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Thomas Hartmann, the "legal advisor" to the Gitmo show trials who has already been forbidden from involvement with two Gitmo cases because of his bias, just failed upwards: he has been named Director of Operations for the show trials (h/t scribe).

Air Force Brig. Gen. Thomas Hartmann was named to the newly created position of director of operations, planning and development for military commissions, as the trials are called.

The new job takes Hartmann away from direct supervision of the prosecution. The former chief prosecutor, Air Force Col. Morris Davis, and others had accused the general of pushing for prosecutions that would captivate the public for political gain, even before the detainees were ready to be charged.

 The AP cites Davis, Deputy Chief Defense Counsel Michael Berrigan, and a Human Rights Watch lawyer, all saying the move of promoting Hartmann up isn’t enough–he’ll still be around to "monkey around" and taint the already tainted military commissions.

Those doubts are well-founded. Hartmann sounds like this move has only made him more determined to build a nice little show trial industry down at Gitmo.

In an interview, Hartmann put his transfer in a positive light.

"I feel like it’s an elevation, a promotion, because it recognizes … the exponential growth of the commissions," Hartmann said.

 [snip]

Hartmann said he is proud of the way he has helped move the trials forward and intends to keep doing so in his new role.

"We are not going to wilt under pressure," he said.

Goodie. After destroying our credibility overseas and ensuring the exponential collapse of our economic system, about the only growth industry coming from the Bush Administration is in show trials. 

The 9/11 Detainees Want Hartmann Disqualified, Too

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In thoroughly unsurprising news, the defense attorneys for the five 9/11 High Value Detainees (including Khalid Sheikh Mohammed and Ramzi bin al-Shibh) have moved to either have the charges against their clients dismissed or, at least, have General Hartmann disqualified as Legal Advisor to the Show Trials. Here’s Carol Rosenberg on that story–as well as the news that Judge Allred will delay the start of Salim Hamdan’s trial until after SCOTUS rules in Boumedienne.

This motion obviously piggy-backs on Judge Allred’s decision from last week to have Hartmann disqualified in the Hamdan trial. The 9/11 defendants largely replicate the Hamdan complaint in their own motion–with one significant addition. They also argue that Hartmann illegally tried to coerce defense counsel, in addition to Colonel Morris Davis, the Chief Prosecutor. As they describe:

On January 25, 2008, a member of the Convening Authority’s staff, Colonel Wendy Kelly, inadvertently emailed a draft copy of the charges against Khaleed Sheikh Mohammed and five other detainees to Mr. Michael Berrigan, the Deputy Chief Defense Counsel. The draft charges were being circulated within the Office of the Convening Authority. Mr. Berrigan immediately notified Colonel Kelly of the disclosure and ascertained it was inadvertent, but after seeking counsel from his state bar, refused to return the draft charges.

On February 1, 2008, the Legal Advisor to the Convening Authority wrote a memorandum to the Chief Defense Counsel, Colonel Steven David. General Hartmann stated that he had contacted the professional responsibility offices for the Army, Navy, and Marine Corps and they had opined that Mr. Berrigan must return the draft charges in this case; charges which approximately two weeks later General Hartmann claimed to have just received.

[snip]

The fact that the Legal Advisor, rather than the Chief Prosecutor, sent the Memorandum to the Chief Defense Counsel illustrates the point that the Legal Advisor failed to retain the required independence from the prosecution function and maintain his ability to provide independent, neutral, and impartial advice to the Convening Authority.

The [Military Commissions Act] prohibits attempting to coerce or unlawfully influence the professional judgment of trial or defense counsel. While the Secretary of Defense has attempted to circumvent the statutory prohibition against unlawful influence of trial counsel by regulation, he has not done so for defense counsel. When unlawful influence is directed against a defense counsel, it "affects adversely on accused’s right to effective assistance of counsel." [citations removed]

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Politicizing Show Trials at the Same Time as Politicizing DOJ

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Marty Lederman links to the important opinion disqualifying General Thomas Hartmann from any involvement in Salim Ahmed Hamdan’s–Osama bin Laden’s driver–military tribunal. (Kudos to Marty Lederman for thwacking the traditional media for touting an opinion’s limited availability–and then not providing a link to that opinion.)

As Marty notes, the opinion does much more than the traditional press coverage of the opinion lets on–though as always, Carol Rosenberg’s coverage of the show trials is quite good. The opinion basically affirms that the Gitmo show trials under Hartmann have been just that–trials driven by political motivations rather than legal evidence. Go read the opinion, written by Judge Keith Allred, for the timeline it offers of Hartmann’s (and others’) attempts to tailor the show trials to political considerations.

I’m particularly interested in the coincidence of timing the opinion reveals. The Bush Administration started crafting its show trials at precisely the same time–fall 2006–when it was engineering the firing of 8 US Attorneys for political reasons.

5. About 28 September of 2006, [Colonel Morris Davis] attended a meeting of the Senior Oversight Group, held in the office of Deputy Secretary of Defense Gordon England. During one of these meetings, Mr. England said "there could be strategic political value in getting some of these cases going before the [November 2006–editorial comment original] elections. We need to think about who could be tried" or words to that effect. The commission takes judicial notice that the Supreme Court issued Hamdan v. Rumsfeld in June 2006 and that the Military Commissions Act was not signed until late October 2006. Consequently, there was no possible way in which any military commission case could be referred, much less brought to trial, before the November 2006 elections.

[snip]

Colonel Davis viewed [England’s] remark as an opinion, rather than a command. Colonel Davis affirmatively denies that this statement had any effect on any decision he made with respect to Mr. Hamdan’s case.

7. During the same meeting, then-Under Secretary of Defense for Intelligence Mr. Steve Cambone opined that Department of Defense (DoD) attorneys were not sufficiently experienced to handle these cases, and that they needed to get some Department of Justice (DOJ) attorneys involved. Although no DOJ attorney had made an appearance in a military commission hearing before that date, they have since been assigned to military commission trial teams.

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