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

By Jack M. Balkin

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.

Full post as published by Balkinization on May 11, 2008 (boomark / email).