Law and Public Policy

Structural Failings in Military Commissions

Over at Opinio Juris, Kevin Jon Heller posted a story about the legal adviser to the convening authority in the Guantanamo military commissions, and why he thinks it’s time for him to go.  

I agree with Kevin that Hartmann should go, however I fear that the problems won’t be solved by removing Hartmann.  Hartmann’s actions are representative of a significant structural flaw in the military commissions which creates a system allowing for direct political influence over the trial process.  I discuss some of the structural problems in my essay Beyond Guantanamo (103 Nw. U. L. Rev. ____ (2008). 

First, MCA § 948h allows for a political appointee to serve in the powerful role of Convening Authority a unique military position with substantial discretionary powers, powers traditionally reserved to commanders as a consequence of their command responsibilities.  At the same time MCA § 949b provides trial counsel with enhanced protection from unlawful influence.  Unsurprisingly, allowing a political appointee to occupy a powerful quasi-judicial position while at the same time mandating protection from undue influence places these two statutory provisions in conflict. 

We saw how this played out in the stories you linked to about Col. Davis’ resignation.  However, the issue goes a bit deeper.  You may recall that during the “debate” over the MCA the President’s proposed legislation stalled when a group of Senators led in part by Senator McCain raised the issue of torture and the use of evidence derived from torture.  While that public debate was ongoing, Col. Davis met with the staff of Senator Lindsey Graham where he specifically requested the enhanced protections from undue influence which ultimately became part of 949(b). 

Specifically, Sectoin 949(b) was intended to create an independent military prosecutor.  Col. Davis argued for protection against the potential for undue influence over the prosecutors legal judgment.  His concern was that he and other trial counsel should be free from influence, coercion, or in his words, “reprisal if someone above me believes waterboarding is an acceptable way to extract evidence.”  Notably, the final version of the MCA guaranteed freedom from influence over trial counsel’s “professional judgment” dropping the “legal” modifier and creating even greater protection than the narrower “professional legal judgment” urged by Colonel Davis.  (I’ve compiled an abbreviated legislative history of 949(b) here) Judge Allred came to a similar conclusion about the protections which the MCA extends to trial counsel in his Ruling on Motion to Dismiss (Unlawful Influence), United States v. Hamdan. 

Unfortunately, as the story you’ve linked to makes clear Hartmann (who reports to a political appointee), the Convening Authority (a political appointee) and political appointees in the DoD General Counsel’s office continue to exercise undue influence over the process.  Removing Hartmann or others can’t fix the structural problems which situate political appointees at the apex of the military commissions system.  As an example consider the fact that Judge Allred, following the Hamdan unlawful influence hearing ordered additional measures to protect against “any adverse consequence, professional embarrassment, unfavorable performance rating, or other disadvantage” for those who participated in the Hamdan hearing.  Despite this order the structure which allowed for undue influence remained, and as a result Colonel Davis was later notified that because of his resignation and testimony on behalf of Hamdan he did “not serve honorably” and was denied a medal for his service as prosecutor.  (Further discussion of these points here)

This coercive political influence has serious implications for the conduct of trials and cannot be resolved by merely removing outspoken individuals from the chain of command.  Before I turn to the implications for the conduct of trials, let me first mention why this coercive political structure violates the spirit of the Supreme Court’s Hamdan decision.  You will recall that Justice Kennedy, interpreting the requirements of Common Article 3 stated that Common Article 3 is concerned with “matters of structure, organization, and mechanisms to promote the tribunal’s insulation from command influence.”  In fact, in Hamdan members of the Court when looking at structure made clear that they were not imputing ill motives to any actors within the military commission process, expressing certainty that officers in the (old Presidential military order) military commissions “would strive to act impartially and ensure that Hamdan receive[s] all protections to which he is entitled.”  Nonetheless, despite a nod to the impartiality of individual officers, Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, reasoned that “the legality of a tribunal under Common Article 3 cannot be established by bare assurances that, whatever the character of the court or the procedures it follows, individual adjudicators will act fairly.”  Structural independence from the influence of executive actors is the central concern. (more on this here)

So while removing Hartmann is a good start, it won’t remedy the structure which undermines “the character of the court.”  The implications for trials are clear.  Beyond Hartmann acting like a bull in a china shop, earning the ire of fellow Generals, the potential for his influence over the trial process raises some significant trial process concerns.  Because he has the authority to write performance appraisals of subordinate trial counsel, and because he and other political appointees have the ability to review and decide whether service medals should be awarded he and other political appointees still have a tool to control trial counsel. 

Allowing political officials to prepare fitness reports and make decisions regarding service medals has the same potential for influence that allowing them to directly make trial decisions does because both compel officers to act in accordance with the wishes of their political superiors instead of the interests of justice. So long as trial counsel fear career impacting reprisals, they will not be free to make independent decisions regarding their trial strategy, the sufficiency of evidence against individual detainees, and the impropriety of using evidence derived from coercion or even torture.

Further, such a structure allows political appointees to escape the consequences of potentially unlawful action by pressuring military officers to act in their stead, forcing those officers to choose between resignation, reprisal, or violations of the law. No system premised upon ethical conduct, should tolerate such a result. 

In short, removing Hartmann will be a nice start, but it won’t fix the underlying structure which requires an independent prosecutor truly protected from political influence. 

For a further and more detailed discussion of these points, see the full essay here