Balkinization  

Sunday, May 11, 2008

Learning to Link: The Military Commission Decision Disqualifying the Legal Adviser, Brig. Gen. Thomas Hartmann

Marty Lederman

On Saturday, the New York Times reported a major development in the military commission proceeding against Salim Hamdan, something it properly called "a new blow to the Bush administration’s troubled military commission system": On Friday, the Commission disqualified from the case Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, because General Hartmann had indicated that political considerations should be brought to bear on prosecution decisions, and because Hartmann had also pressed for the introduction of evidence that had been obtained by use of waterboarding and other forms of torture and cruel treatment. As the Times reported:
[Military judge Capt. Keith J. Allred of the Navy] said the general was too closely aligned with the prosecution, raising questions about whether he could carry out his role with the required neutrality and objectivity. Military defense lawyers said that although the ruling was limited to one case, they expected the issue to be raised in other cases, potentially delaying prosecutions, including the death-penalty prosecution of six detainees at Guantánamo Bay, Cuba, for the Sept. 11 attacks. Critics of the military commission system said Friday that the judge’s decision would provide new grounds to attack the system that they say was set up to win convictions.

* * * *
General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantánamo military prosecutor, Col. Morris D. Davis of the Air Force. Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture.

“National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantánamo judges are not typically released publicly until days after being handed down.
Note the bolded phrase near the end: The judge's opinion was "not released publicly" but was "obtained by the Times." I'm not sure what it means for an opinion to be issued but not to be "released publicly." It wasn't classified; and presumably it was both entered on the docket and provided to counsel, which seems like a "public" release to me. In any event, it appears not to have been publicized by the Commission, or otherwise by the Department of Defense, and therefore it was an important public service for the Times to report it.

The weird thing, though, is that the Times did not provide its readers with a copy of the opinion itself. Nor did the Wall Street Journal in its story. Likewise the Associated Press and the Washington Post. (The Post story oddly states that "[t]he ruling was first reported by the New York Times yesterday." When the Supreme Court issues its decision in Boumediene next month, will the Post report that "the ruling was first reported by SCOTUSblog"?) Reuters and UPI apparently did not even see the opinion themselves, let alone provide it to their readers: they merely reported on the Times story about the decision.

This morning, the Times has published another sharply worded story about Judge Allred's decision, explaining how it is "a major new challenge to the Bush administration’s legal approach to the war on terrorism." And yet, although this story has plenty of links to other stories and sources, it, too, fails to link to the judge's opinion -- which is, after all, the subject of the story.

As far as I can tell from a quick Google search, the only sources that actually bothered to provide their readers with access to Judge Allred's opinion were the Miami Herald and the National Institute for Military Justice. (Those are links to the opinion. The Herald story is here.) Kudos to them. It would be nice if the remainder of the mainstream media finally figured out that they would well serve their readership (and demonstrate respect for that readership) if they provide access to the legal documents that are the subject of their breaking news stories. Hyperlinking: It's not just for bloggers any more.

Comments:

Nah, if the MSM were to start providing links to source material, readers wouldn't have to take their assertions on faith anymore, and slipping in the (more than) occasional questionably sourced assertion would become difficult. And what's the point of BEING the MSM, if you can't mislead the masses when you think it's necessary?
 

Is it shocking to anyone else that the court felt it necessary to repeatedly emphasize that proponents of the disqualification were not to be retaliated against? The judge must think Haynes is scum...
 

The fact that the NYT neglected to link to the actual order in favor of simply parroting the party line that the order is somehow "a major new challenge to the Bush administration’s legal approach to the war on terrorism," simply reveals the reporting to be the usual NYT partisan hit job.

Your answer as to why a press eager to attack the military commission process neglects to link to the actual opinion can be found in the opinion itself. Judge Allred's opinion found no undue command influence on the current court and prosecution of the Hamdan case and denied all the substantive motions to dimiss the charges and disqualify the participants in the trial. No surprise there because Col. Davis' testimony never provided any evidence of undue command influence on the Hamdan trial.

It was also interesting to observe the Court tweak Col. Davis by observing that it was General Hartman's job to motivate (read light a fire under the asses of) his subordinates to bring prosecutions.

However, Captain Allred, who has in past opinions proven himself to be an extremely cautious judge, ordered General Hartman (who is not trying the Hamdan case) to be removed because he feared an appearance of undue command influence. (Translation: Allred did not want to deal with the copy cat motions from the following defendants seeking to further delaying the process).

Can anyone who is able to read the actual opinion seriously consider it a ""a major new challenge to the Bush administration’s legal approach to the war on terrorism?" Hardly. There is your reason for the NYT not linking to or adequately describing the opinion. The opinion does not comport with the NYT's description of the opinion.
 

Can anyone who is able to read the actual opinion seriously consider it a ""a major new challenge to the Bush administration’s legal approach to the war on terrorism?"

No, because he is only banned from the *first* trial. In the judge's words, this brouhaha is all due to public outcry, so I interpret this both as a PR move and an acknowledgement that the public needs to have confidence in these trials. Hartmann and Haynes have caused questions to arise about the latter.
 

Lisa's bro continues to perform his res gestae-like regurgitation role defending whatever the position of the Bush Administration may be on whatever.

By the way, I just watched Bill Moyers' interview of Philippe Sands on his new book "Torture Team" that Marty has referred to on earlier posts. Sands stressed the need to get the facts, all of the facts. He points out that the various documents already released are available worldwide via the Internet such that leaders of other nations might decide to emulate George W on the subject of torture.
 

eric said...

BD: Can anyone who is able to read the actual opinion seriously consider it a ""a major new challenge to the Bush administration’s legal approach to the war on terrorism?"

No, because he is only banned from the *first* trial. In the judge's words, this brouhaha is all due to public outcry, so I interpret this both as a PR move and an acknowledgement that the public needs to have confidence in these trials. Hartmann and Haynes have caused questions to arise about the latter.


We have a BINGO!

You have correctly identified the defense lawyers' intent in filing this motion and the NYT's intent on misreporting the results of the motion - to undermine public confidence in the proceedings.

As was the case with the Padilla trial, the defenses offered for the al Qaeda being tried by military commission are far more about public relations than offering a substantive defense to the charges against them.
 

Bart,

The New York Times article stated that under the MCA evidence obtained from torture was inadmissable but coerced evidence was okay.

Is waterboarding considered torture for the purposes of the Act?

What about loud music, 24 hour lighting, stress positions, etc?

Is there a bright line?

What is meant by "coerced" for the purposes of the Act?

I'm asking in a noncombative tenor, because I read on some earlier thread that you were an acknowledged expert on the MCA...
 

As was the case with the Padilla trial, the defenses offered for the al Qaeda being tried by military commission are far more about public relations than offering a substantive defense to the charges against them.

Much like the John Walker Lindh case.
 

The Court begins by accepting the testimony of Colonel Davis on all issues, finding it supported by the testimony of others, including the prosecutor. This is sufficient to establish a prima facie case for recusal, and the government is required to come forward with sufficient evidence to establish beyond a reasonable doubt that the interference was not coercive. The Court finds that the decision to prosecute Hamdan was made prior to the interference, and so could not have been influenced by the wrongful actions of General Hartmann. The ruling is as follows:

The Commission is not persuaded, beyond a reasonable doubt, that the Legal Advisor to the Convening Authority retains the reqired independence from the prosecution function to provide fair and objective legal advice to the Convening Authority. These are substantial doubts about that ability based on the length and intensity of the Legal Advisor’s involvement with the Prosecution in general, as well as the impact his actions have had on the prosecutors in this case.

With this factual background, is there any doubt that any other decision to prosecute in which General Hartmann played a part will not be thrown out? I bet reasonable lawyers, acting with some sense of professionalism, would advise their clients that they had better figure out a way to do this over without the appearance of coercion. Sounds like a real roadblock to me, or at least it would be if we had any reasonable lawyers left in the DOD
 

michael said...
Bart, The New York Times article stated that under the MCA evidence obtained from torture was inadmissable but coerced evidence was okay. Is waterboarding considered torture for the purposes of the Act? What about loud music, 24 hour lighting, stress positions, etc? Is there a bright line? What is meant by "coerced" for the purposes of the Act? I'm asking in a noncombative tenor, because I read on some earlier thread that you were an acknowledged expert on the MCA...

:::chuckle:::

I do not recall advertising myself as an "expert" in the MCA.

It is my understanding that the MCA permits the court to make a case by case determination of the reliability and admissibility of evidence obtained through coercion for intelligence gathering purposes. Consequently, Judge Allred will have to make those determinations.

In past posts here, I have argued that statements gained through coercive interrogation may be useful for gathering actionable intelligence which can be confirmed, but should not be used as "confessions" for criminal liability at war crimes trials.

I think the prosecution has the same point of view even though Congress gave them more latitude. The media has reported that the FBI reinterviewed each of the defendants and that the prosecution is going to rely on statements made during the FBI interviews. So hopefully this issue does not even arise.
 

Amen to Marty's point about linking. I'm frequently annoyed by major papers failing to link to items that are important to the story -- while linking to all manner of extraneous stuff (names of states, companies, or whatever featured in the story). The latter practice seems designed to increase search engine visibility, with no added value whatsoever for the reade -- the links generally don't lead to anything interesting.

(This has been my cranky Andy Rooney moment for the month, I hope.)
 

Maybe MiamiHerald's posting the actual ruling's link demonstrates a continued new realism in the aftermath of its embarrassing experience with taxpayer sourced payola in news 'gathering', as reported in this early September 2006 article from NYT.
 

Thank you Bart.

Someone on an earlier thread acknowledged you as expert on MCA related matters, but then used that as a preamble to a somewhat more critical view of your expertise in other areas.

What I am trying to learn is whether the MCA relaxes evidentiary standards, and in what ways? I guess I am just too lazy this morning to read it myself.

I always thought that the trials at Gitmo would fail on these points, especially since death penalties are being sought.
 

michael said...

You can find the MCA text here.

The short answer to your question is that the evidentiary standards for a military commission are relaxed when compared to a federal civilian or military UCMJ criminal trial.

There are 61 references to evidence in the MCA, so I would recommend that you read the document for more specific questions.
 

Michael:

Someone on an earlier thread acknowledged you as expert on MCA related matters, but then used that as a preamble to a somewhat more critical view of your expertise in other areas.

Anyone here that has acknowledged "Bart"'s expertise in any area was either joking, sarcastic, or referring to extensive experience with DWI ... "discussing while intoxicated". And this truly is the extend of "Bart"'s expertise in this area.

"Bart"'s legal errors here are legion (I can provide cites if you'd like), and he refuses to provide any 'authority' for his claims in many instances other than simply his own say-so. When he does, they're easily picked apart.

What I am trying to learn is whether the MCA relaxes evidentiary standards, and in what ways? I guess I am just too lazy this morning to read it myself.

I put together a partial summary of a number of the differences between Article III criminal prosecutions and the travesty we call "military commissions" here.

As to Col. Davis's allegations, I did this post. The fact of Hartman's picking of the lawyers goes right to the gravamen of my first post there, and Hartman's (And Hayne's) jiggering the process is in the Scott Horton excerpt in the second.

I always thought that the trials at Gitmo would fail on these points, especially since death penalties are being sought.

I really wonder whether the U.S. Supreme Court is going to accept "trials" where evidence from torture is accepted. Basicaly the whole civilised world condemns such a thing (not to mention treaties and even the U.S. Constitution). Why we should allow it here is simply beyond me.

As "Bart" should know, even subsequent interrogation is tainted when there has been a forced confession earlier, so the effort to "sanitise" the evidence by redoing the interrogations is just an effort by the Dubya maladministration to rescue hopelessly (and needlessly) compromised prosecutions.

I'd note that, TTBOMK, even the FBI interrogations weren't done with lawyers for the detainees (another fatal flaw if so).

Cheers,
 

michael:

A word to the wise about arne.

Read all his "legal authority" carefully. It usually is not what he claims it to be. arne is a perpetual 1L from Berkeley who actually works as an engineer.

If you decide to get into a discussion with him, get ready for a spam attack where he will post a separate response to every individual sentence in your post. arne comes from the quanity over quality school of blogging, Just watch the response to this post for an example.

Finally, arne has some fixation with me. I generally just ignore him. If you decide to correspond with him, I would suggest that you do not discuss me with him. It just sets him off again.
 

Michael:

["Bart"]: A word to the wise about arne.

Read all his "legal authority" carefully. It usually is not what he claims it to be. arne is a perpetual 1L from Berkeley who actually works as an engineer.


Here's some "legal authority" for you to peruse:

"["Bart]: There are two Brown decisions - (Brown I) Brown v. Board of Education, 347 U.S. 483 (1954) and (Brown II) Brown v. Board of Education, 349 U.S. 294 (1955). The first held that de jure segregation violated the EPC and the second held that courts may legislate forced bussing of students to achieve desegregation."

And this he emitted after I'd explained the landscape of the desergregation cases to the eedjit "Bart" above that in that very thread. Read the whole thread for laughs.

I lay it out for him, and he still gets it wrong.

He has never admitted that he was full'o'sh*te there, however.

He also cites the Pentagon Papers case as a "majority" holding that the N.Y. Times could have been prosecuted post-publication. This is wrong on two counts: There was no such holding, and there wasn't even a suggestion of such a sentiment in the obiter dicta of a "majority".

He cut'n'pasted something off the web that cited a case wrongly in another instance; I had to correct him on that (in his favour here, he actually did admit this mistake).

And he's claimed, contrary to law (and even contrary to the express language of the FRCP) that summary judgement is inappropriate before discovery has been completed.

IOW, he's just regularly full'o'it. If I were a client of his, I'd watch his every move like a hawk.

He's right that I'm not an attorney. But that hardly speaks well for him that I'm the one that corrects him. He's the one that has a professional responsibility to actually know the law (and not to lie; see, e.g., MRPC RUle 8.4(c)).

I'd note that he has not managed to find a single instance where I have egregiously and obviously miscited law or cases such as in the instances I've pointed out above. In fact, I don't think he's been able to show me wrong on the law ever (although I think he thinks he has).

You can figure it out....

Cheers,
 

Michael:

["Bart"]: If you decide to get into a discussion with him, get ready for a spam attack where he will post a separate response to every individual sentence in your post.

Others don't have this 'problem'. "Bart"'s problem in this regard is caused by the fact that he gets, on average, one thing wrong per sentence. Slight exaggeration (as is his claim), but not much.

I've told him that if he wants to reduce the number of corrections and rebuttals I write, he should limit himself to one egregious error or outrageous statement per post of his....

Cheers,
 

Thanks Arne.

I went up to your site last week and today also following your links and I must say, on these issues of torture and detainee treatment you have one of the best websites out there (at least that I've found)

Reading your blog, I note you do not care much for the current administration. Neither do I. I definitely have not gotten over Bush v Gore. I too recall those days of litigation, the Republican Riot, the unbelievable SCOTUS stay, and ultimate defeat with a great deal of bitterness that time has not in the least dulled.

And then the incredible attack on our legal system in the last 7 years...and the degradation of our former reputation..and the brutalization of our culture...

The repair work will take at least two full democratic administrations...I hope Obama is up to it.

Meanwhile, congratulations again on your neat website. I have bookmarked it and added it to my "Legal Blogs" folder.
 

Bart,

Thanks for the link and I read through the first 12 pages of the Act before hitting the section on evidence I was looking for.

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.
 

Arne --

"As to Col. Davis's allegations, I did this post. The fact of Hartman's picking of the lawyers goes right to the gravamen of my first post there, and Hartman's (And Hayne's) jiggering the process is in the Scott Horton excerpt in the second."

Arne --

This is the second time I've read your blog on this. The first time I was moved to the thought of re-watching "Judgment at Nuremburg".

This second time: I'm going to watch it again.

It would be difficult to find anything more sobering, and inspiring, than the comments made by Dodd's father, and the other US triers at Nuremburg. That's all we want more of.
 

I am trying to find the DOJ brief in the Miers case. AP story contains no link. Annoying.
 

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