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

By Jack M. Balkin

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 dismissed, 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.

Without their courageous actions, without their commitment to uphold the integrity of the law, we would all be witnesses to and parties to show trials.


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Full post as published by Balkinization on May 13, 2008 (boomark / email).