Balkinization: Attempt at Show Trials--US Military--And Why it Failed

Attempt at Show Trials--US Military--And Why it Failed

Brian Tamanaha

The following are passages from Military Judge Captain Allred’s recent findings of fact in US v. Hamdan (link to opinion can be found in Marty's post below):

During the interview, [Chief Prosecutor, Office of Military Commissions] Colonel Davis observed that the reputation of the commissions for fair treatment might be enhanced if there were some acquittals, as there had been in Nuremburg. Mr. Haynes [Legal Counsel, Department of Defense] responded "We can't have acquittals. We've got to have convictions. We can't hold these men for five years and then have acquittals," or words to that effect. Colonel Davis was surprised that Mr. Haynes did not appear to have considered the possibility of acquittals....

About 28 September of 2006, [Colonel 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 thee cases going before the [November 2006] elections. We need to think about who could be tried..."

On 18 July [Legal Advisor] General Hartmann announced that he was going to select the next cases to go forward. He wanted cases that would be "sexy" enough to capture the public interest, or cases in which an accused might have blood on his hand, rather than cases involving low level actors transporting documents, etc....

On 15 August 2007....General Hartmann directed that three cases be ready to refer [the day an anticipated decision comes down by the Court of Military Commission Review]. Colonel Davis objected that three cases could not be ready by that date, and thought it odd that the Legal Advisor should be directing a particular number of cases to be referred on a date certain. General Hartmann stopped the discussion by saying "I said we are going to have three cases ready on that day. Does everyone understand me?"

In an article published in February of 2008, Colonel Davis wrote that he had resigned because he concluded that "full, fair and open trials were not possible under the current system."

Captain Allred's legal findings:

The Commission is troubled by the following actions of the Legal Advisor that reflect too close involvement in the prosecution of commission cases:

Telling the Chief Prosecutor (and other prosecutors) 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.

Appearing to direct, or attempting to direct, the Chief Prosecutor to use 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. While it is true that the trial judge is ultimately the gatekeeper for each item of evidence, each Prosecutor also has an ethical duty not to present evidence he considers unreliable.

The Legal Advisor's intimate involvement in the details of prosecutorial decision making have led one prosecutor to resign, another to seek ethical guidance from the Navy JAG ethics office, and has led both prosecutors in this case, and their former supervisor, to believe they were being micro-managed in both the performance of his duties and the exercise of their discretion.

Based upon these findings, Captain Allred ordered that the Legal Advisor be removed from further participation in the case, and ordered that the Department of Defense not subject any of the prosecutors who protested these actions to "any adverse consequences, professional embarrassment, unfavorable performance rating, or other disadvantage as a result of such participation."

Once again, we see an instance where higher-ups in the Bush Administration with no respect for the rule of law are resisted by lawyers in the trenches who refuse to do their bidding (at the cost of their professional careers). As disgraceful as is the conduct of the former, we must celebrate and be thankful for the conduct of the latter.

Posted 8:44 PM by Brian Tamanaha [link]

Comments:

I'd like to believe that this represents an honorable step by an honest judge. The tragedy is that I've grown so cynical of the Bush Administration, that I'm tempted to see this ruling as theatre -- gives the appearance of a fairness, but the actual trial will fail the test.

# posted by

Mark Field : 11:06 PM

Mark,

He did the right thing. We'll see what follows.

Brian

# posted by

Brian Tamanaha : 11:12 PM

The ruling found no substantive undue command influence and denied every substantive remedy sought by the defense to dismiss the charges or to remove anyone actually trying the case.

Mr. Haynes (who is not trying this case) was removed from this case to avoid the perception of undue command influence by a judge who has been proceeding very cautiously indeed.

This ruling could only occur in a military setting because civilian judges have no power to remove elected DAs who are pushing their own prosecutorial agendas.

# posted by

Bart DePalma : 9:03 AM

Bart,

Is your point that these actions do not suggest an effort at show trials (no acquittals, bring case before election, pick sexy cases, use evidence prosecutor considers unreliable)?

If your point is that DA offices are also influenced by such considerations, so it's no big deal, keep in mind that the Commissions have been created solely for the purpose of trying these prisoners (and to justify the fact that they have been imprisoned for so long without charges), a fact which raises legitimate concerns about "kangaroo courts."

Brian

# posted by

Brian Tamanaha : 9:27 AM

some defects in the Guantanamo trial structure from a posting by Frank Kendall on the ACS blog:

"First, the right to a speedy trial was violated long ago for the people confined at Guantánamo. They have almost all been in custody for several years without charges or trial. One of them, now 21, has been here since he was 16. [the MCA has a proviso waiving the speedy trial clause]

Second, evidence obtained by coercion, and therefore inherently unreliable, may be admitted at the discretion of the judge. The degree of coercion detainees have been subjected to may be disputed, but the fact of coercion - even extreme coercion - is undeniable. The government likes to take credit for its “program” of “enhanced” interrogation. Much of the evidence against the detainees is believed to originate with other detainees who provided the information under interrogation at Guantánamo and elsewhere. It is hard to see how this “evidence” could be considered reliable.

Third, classified information will not be made available to defendants or, in many cases, even to their attorneys (including appointed military attorneys), contradicting the right to confront evidence and prepare a defense. The alternatives of redacted evidence, summaries, or stipulated facts based on classified information will be compiled largely by military commission prosecutors. I spoke yesterday with one of the military defense attorneys, a Navy Lt. Cmdr. He has a top secret clearance, but he is not allowed full discovery of classified information that could be relevant to his client’s defense.

Finally, there is the likelihood of bias or command influence on the military judges and the officers who will be members of the commissions. (There is also the policy problem of the perception of command influence in a military commission setting, but my intent here is to address legal rather than policy issues). The MCA and implementing rules provide that no participant’s efficiency report or promotion is to be influenced by a participant’s conduct in a military commission. But it is hard to imagine members being free of any concern that an acquittal would be looked upon unfavorably by the chain of command. Command influence does not have to be overt to be real."

# posted by

Michael Sweney : 1:18 PM

This ruling could only occur in a military setting because civilian judges have no power to remove elected DAs who are pushing their own prosecutorial agendas.

That's not really true. A criminal court judge can disqualify a prosecutor for misconduct. He or she can also, in rare cases, reverse a conviction, grant a JNOV or directed verdict, or dismiss an indictment for prosecutorial misconduct.

And further, it's worth remembering that this particular problem, command influence, is a problem that is inherent in the military tribunal structure, because the judges are theoretically subject to the commands of their superiors, whereas a criminal trial judge is independent of the prosecuting authority.

# posted by

Dilan : 3:38 PM

From the opinion:

During the interview, [Chief Prosecutor, Office of Military Commissions] Colonel Davis observed that the reputation of the commissions for fair treatment might be enhanced if there were some acquittals, as there had been in Nuremburg. Mr. Haynes [Legal Counsel, Department of Defense] responded "We can't have acquittals. We've got to have convictions. We can't hold these men for five years and then have acquittals," or words to that effect. Colonel Davis was surprised that Mr. Haynes did not appear to have considered the possibility of acquittals....

This may explain the dropping of charges against "20th hijacker" al-Qahtani. Better to drop a case (and claim the right to reinstate it later) than suffer the humiliation of an acquittal. For these people, it's all about "winning".

FWIW, under standard Article III procedures, the maladministration may have fatally poisoned any potential case against many of the main defendants by using the techniques they used (read: "torture"). FOTPT analysis might prevent even any subsequent investigation by someone behind a "Chinese Wall". Which explains the maladministration push for the MCA and its whacked procedures.

Cheers,

# posted by

Arne Langsetmo : 6:16 PM

Prof. Tamanaha:

He did the right thing. We'll see what follows.

Indeed. Allred did, as did Charles Swift and Morris Davis. There are plenty of people in the military that take their job seriously (and that job isn't to make the maladministration look good).

But the tentacles of those like Cheney, Addington, Rumsfeld, Haynes, Hartman, Miller, Boykin, etc., are long....

Cheers,

# posted by

Arne Langsetmo : 6:26 PM

"Bart" the intentionally obtuse says:

The ruling found no substantive undue command influence ...

Oh, BS. This is a huge slap at Hartman, much as the "Bartster" wants to pretend it's de minimus or "technical".

... and denied every substantive remedy sought by the defense to dismiss the charges ...

That is an extreme remedy. Even for regularly constituted Article III courts, the remedy of barring a prosecution is an extremely uncommon occurrence; the general relief is to fix the problem and give a new trial if necessary.

... or to remove anyone actually trying the case.

They canned Hartman's a$$. And in part because he was running the show. The defence wasn't complaining about the regular prosecutors.....

Mr. Haynes (who is not trying this case) was removed from this case to avoid the perception of undue command influence by a judge who has been proceeding very cautiously indeed.

What a load of total cr&p. See above.

Cheers,

# posted by

Arne Langsetmo : 6:42 PM

Michael:

some defects in the Guantanamo trial structure from a posting by Frank Kendall on the ACS blog:...

I do pretty much the same run-down on this claim that the detainees will be afforded "exceptional rights" on my old post on that subject (linked in above post under the "whacked procedures" blue clicky).

The string of "exceptional" provisions in the MCA intended to ensure a "positive" outcome is profuse. The provisions that actually would help ensure fairness and justice -- given the political and emotional winds blowing WRT such trial -- are non-existent.

Cheers,

# posted by

Arne Langsetmo : 6:53 PM

Minor correction:

What the maladministration is offering the Guantánamo detainees is an "extraordinary set of rights".

As in "far, far, far removed from the ordinary". They don't say which direction.

Cheers,

# posted by

Arne Langsetmo : 6:59 PM

Professor Tamanaha:

I served as a prosecutor for almost five years.

Apart from disgraces to the law like Niphong, ethical prosecutors dismiss cases for which they have no proof and try cases for which they do.

When a prosecutor tries a case for which he has evidence, then he always does his best to gain a conviction. To do any less and to allow the guilty to go free is malpractice.

My jaw dropped when I heard that Col Davis suggested that the military commissions should lose a few cases to make it look fair. If I trotted into the DA's office and announced that the office should lose a few cases just to make it look fair, I would be lucky to just get chewed out as was Davis and could be justifiably fired for not doing my job.

I want every single terrorist for which they have evidence to be convicted. Don't you? (I also want them publicly hung at the WTC ground zero, but I would forgive you if you do not share my brand of justice.)

Wanting to win every single case is not evidence of a "kangaroo court."

Wanting to try sexy cases is the dream of every prosecutor and defense attorney. That does not make a "kangaroo court."

Wanting to try and win big cases before elections is the bread and butter of DAs, if you haven't noticed. That also does not make a "kangaroo court."

A kangaroo court is where people are tried and convicted without evidence. If the military has evidence to back up the allegations in their very lengthy charging documents, then there is not even a hint of a kangaroo court.

# posted by

Bart DePalma : 9:23 PM

michael said...

some defects in the Guantanamo trial structure from a posting by Frank Kendall on the ACS blog:

"First, the right to a speedy trial was violated long ago for the people confined at Guantánamo.

Foreign enemy combatants have no rights under the United States Constitution. In any case, these prisoners were not being held awaiting trial but rather as POWs, which is also perfectly permissible under the law of war.

Second, evidence obtained by coercion, and therefore inherently unreliable, may be admitted at the discretion of the judge.

That is why the FBI reinterviewed them. In any case, there is usually also physical evidence and other witnesses.

Third, classified information will not be made available to defendants or, in many cases, even to their attorneys (including appointed military attorneys), contradicting the right to confront evidence and prepare a defense.

Foreign enemy combatants have no rights under the United States Constitution. However, the defendant has a representative who will review all the evidence against him.

It makes no sense to provide a terrorist with the information of who his informants were so the terrorist group can murder them. This is war, not a civilian trial.

I spoke yesterday with one of the military defense attorneys, a Navy Lt. Cmdr. He has a top secret clearance, but he is not allowed full discovery of classified information that could be relevant to his client’s defense.

Access to classified intelligence not being used against the defendant is still being worked out. You have two competing interests here. The more people read into intelligence, the more likely it will leak and the sources get killed. On the other hand, defendant's should be provided with all truly exculpatory evidence. Thus, the question is how to disclose just the exculpatory evidence without allowing a wholesale disclosure of closely held intelligence.

Finally, there is the likelihood of bias or command influence on the military judges and the officers who will be members of the commissions.

Based on what evidence? Col. Davis could not show any evidence that the prosecutors or court in the Hamdan case were at all influenced to do anything improper.

# posted by

Bart DePalma : 9:37 PM

dilan said...

This ruling could only occur in a military setting because civilian judges have no power to remove elected DAs who are pushing their own prosecutorial agendas.

That's not really true. A criminal court judge can disqualify a prosecutor for misconduct.

There was no misconduct here and Haynes was not the prosecutor. Rather, Haynes is the equivalent of a civilian DA.

He or she can also, in rare cases, reverse a conviction, grant a JNOV or directed verdict, or dismiss an indictment for prosecutorial misconduct.

No misconduct here. What Haynes is accused of is wanting to try the sexy cases sooner for political effect in an election and wanting to gain 100% convictions.

If you want an example of DA misconduct, look at the prosecutions of the Duke students and the indictment of Tom Delay on a charge no one ever heard of before taking multiple grand juries to indict. The reason this is misconduct is not that the prosecutions were politically motivated, but that they were not based on evidence.

That is not the case here. The military is going after the terrorists against which they have soldi evidence so they do not get embarrassed

# posted by

Bart DePalma : 9:43 PM

Bart,

I was a prosecutor for two years and a public defender for two years. It's about personal integrity and the integrity of the process. The job of the prosecutor, the oath we too, is to do justice.

Brian

# posted by

Brian Tamanaha : 11:12 PM

My jaw dropped when I heard that Col Davis suggested that the military commissions should lose a few cases to make it look fair.

Indeed. Let's go for the 100% (that currently doesn't exist, and that's not even counting the folks set free by such as the Innocence Project). That will save money in the long run too. We can then dispense with trials, because we know that the prosecutors wouldn't try anyone they didn't have dead to rights, for fear of the embarrassment of losing the first case ever lost by a DA. And that will save an awful lot of money wasted on that "quaint" thing called "trial by jury". And just think, all you "important" people, no jury duty either for you! What could be more 'Merkun?

Cheers,

# posted by

Arne Langsetmo : 11:13 PM

Wanting to try and win big cases before elections is the bread and butter of [Dubya-appointed prosecutors], if you haven't noticed.

Yes, we did. It was part and parcel of the "U.S. Attorneys" scandal.....

Cheers,

# posted by

Arne Langsetmo : 11:15 PM

"Bart" DePalma:

[Michael quotes Frank Kendall]:

"Third, classified information will not be made available to defendants or, in many cases, even to their attorneys (including appointed military attorneys), contradicting the right to confront evidence and prepare a defense."

["Bart"]: Foreign enemy combatants have no rights under the United States Constitution....

Nice assertion. But opinions (particularly unsupported ones) are like ....

... However, the defendant has a representative who will review all the evidence against him.

Yeah. Called "the prosecutor" (or the man behind the curtain, the "legal advisor"....)

Or the attorney the military provides for him (the title of my post a while back on the subject).

It makes no sense to provide a terrorist with the information of who his informants were so the terrorist group can murder them. This is war, not a civilian trial.

So says "Bart". Which is a great excuse for not giving people what the Constitution requires the gummint to give people accused of crimes.

I'd note that the "state secrets privilege" must, in the realm of an Article III criminal prosecution, yield to the right of the defendant to defend themselves. The gummint is given the choice of disclosing the information ... or dropping the prosecution. This is true of axe murderers ... or spies. Pretending that we are in such parlous straits, such great danger, in this new "post-9/11" era, that we need a new set of "rules", a new fast track" around out Constitution, is just persiflage, lies, fear-mongering, to cover for the grab of essentially dictatorial powers by the RWAs that make up the Rethuglican party. Why "Bart" pretends to piss his pants is beyond me. Or does he?....

[Kendall]: I spoke yesterday with one of the military defense attorneys, a Navy Lt. Cmdr. He has a top secret clearance, but he is not allowed full discovery of classified information that could be relevant to his client’s defense.

["Bart"]: Access to classified intelligence not being used against the defendant is still being worked out. You have two competing interests here. The more people read into intelligence, the more likely it will leak and the sources get killed. On the other hand, defendant's should be provided with all truly exculpatory evidence. Thus, the question is how to disclose just the exculpatory evidence without allowing a wholesale disclosure of closely held intelligence.

You know, the most closely held "nash'null securitah" secret of the Dubya maladministration is: The extent of their own law-breaking, incompetence, and eedjitcy. They regularly leak stuff and/or admit stuff when it is in their 'political interest'. Maybe it would be a bad thing if the nature of the maladministratio leaked out ... but I don't think so.

Cheers,

# posted by

Arne Langsetmo : 1:37 AM

Just to echo Brian's cogent remarks, I am reposting this from a post I made on an earlier thread about the commissions:

"What worries me are the two provisos that allow the presiding judge too much (I think) latitude in determining admissibility of evidence obtained both before and after the DTA, providing there is probative value or that the vague boilerplate "interests of justice" be served by its introduction.

Now granted unlawful enemy combatants are not US citizens, but it seems that there are a very long stream of cases in the US courts that established that the goal of denying such coerced evidence was out of concern for the integrity of the legal process itself.

Such concerns would of course be equally relevant to mirror- or alternate legal pathways such as the UCMJ or the military commissions.

What is being set up is a kind of "second class" administration of justice with important safeguards missing or waivable.

This can't be acceptable, especially since this system is being granted the power to dole out death penalties.

Our country's long-standing solicitude for the rights and protection of the individual (not "citizen") qua individual, reaches its zenith when the State has the life of the individual in its power. I do not think that the MCA's protections of individuals reach that level and so in this at least the Act is defective."

Sorry to sound so faux-dicta-ish" but these kind of issues get my dander up.... As the Act is defective, so too are the commissions it sets up.

# posted by

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# posted by

Osman Atarci : 11:57 AM