Wednesday, October 1, 2008

Gitmo Prosecutor Quits Over Suppressed Exculpatory Evidence

A whole lot of shakin' is going on in Guantanamo - Cheney's sham "Military Commissions" are further brought into question, and the whole "terror trial" thing is going down as an attempt to set up a kangaroo court to railroad minor "suspects", picked up in the GWOT's web of suspicion, into a conviction to "show off" their fake "success" in their propagandized "war on terror." Andy Worthington reports:

On September 24, Col. Lawrence Morris, the chief prosecutor of Guantánamo's Military Commission trial system, announced that Lt. Col. Darrel Vandeveld, the prosecutor in the case of Mohamed Jawad (an Afghan -- and a teenager at the time of his capture -- who is accused of throwing a grenade at a jeep containing two U.S. soldiers and an Afghan translator), had asked to quit his assignment before his one-year contract expired.

Although Col. Morris attempted to explain that Lt. Col. Vandeveld was leaving "for personal reasons," the real reasons were spelled out in a statement issued by Vandeveld, in which (as the Associated Press explained) he wrote that "potentially exculpatory evidence" had "not been provided" due to a failure on the part of the "prosecutors and officers of the court." On Thursday, the Washington Post reported that he had stated, "My ethical qualms about continuing to serve as a prosecutor relate primarily to the procedures for affording defense counsel discovery. I am highly concerned, to the point that I believe I can no longer serve as a prosecutor at the Commissions, about the slipshod, uncertain 'procedure' for affording defense counsel discovery."

Specifically, the denial of exculpatory evidence.
According to Michael Berrigan, the Commissions' deputy chief defense counsel, Vandeveld said that prosecutors knew that Jawad, who has always denied throwing the grenade, may have been drugged before the attack and that the Afghan Interior Ministry said that two other men had confessed to the same crime.

In his statement, Lt. Col. Vandeveld also wrote that he had wanted to offer Jawad a plea deal "that would allow him to receive rehabilitation after a short period of additional confinement," but that his commanding officers had disagreed. "As a juvenile at the time of capture," he wrote, "Jawad should have been segregated from the adult detainees, and some serious attempt made to rehabilitate him." He added, "I am bothered by the fact that this was not done."

Note that their high-profile cases are all juveniles "at the time of capture". The other high-profile no-holds-barred case being against Omar Khadr. This has not gone unnoticed.

Lt. Col. Vandeveld's departure -- and his reasons for leaving -- are another serious blow to the credibility of the Military Commissions, which were established by Dick Cheney and his close advisers in November 2001. In June 2006, they were ruled illegal by the U.S. Supreme Court, and although they were revived by Congress later that year in the much-criticized Military Commissions Act, they have never escaped accusations that they are a parody of justice, designed to secure convictions at all costs. Even so, Lt. Col. Vandevelt's profound criticisms of a system that imprisons juveniles instead of rehabilitating them, and that suppresses evidence relevant to the defense, is just part of a much darker narrative that has been unfolding for the last eighteen months.

That darker narrative includes torture, of course. And a refusal to relent from the untenable stance of denying justice to these accused who have fallen into Cheney's netherworld entitled "detainees."
From this perspective, an even more significant event was the Pentagon's announcement, on September 19, that Brig. Gen. Thomas Hartmann had been removed from his post as legal adviser to the Convening Authority overseeing the Commission process, which, as the Washington Post recently explained, is "a Pentagon office that is required to exercise a neutral role in the commissions, overseeing but not dictating the work of prosecutors and allocating resources to both the prosecution and defense."

Hartmann, a reservist whose civilian job is chief counsel to the Connecticut-based Mxenergy Holdings Inc., became the legal adviser to the Convening Authority in July 2007, and was also required to "exercise a neutral role." According to the rules set up for the Commissions, he was "supposed to provide impartial advice" to the Convening Authority (retired judge Susan Crawford), and was also supposed to "make an independent and informed appraisal of the charges and evidence," to help Crawford "decide whether charges proposed by the prosecutors are sufficient to go to trial."

So their confidence in the court system, especially of the Military Commissions, was so weak that they needed to hire an "outside point man" to advise their judge. Didn't they trust their own military judges? Aside from this point, was Hartmann's work done as proposed?

However, complaints arose almost as soon as Brig. Gen. Hartmann was appointed. Just two months after he took the job, the Wall Street Journal revealed that Col. Morris Davis, the Commissions' chief prosecutor, had filed a formal complaint alleging that Hartmann had "overstepped his mandate by interfering directly in cases." In a letter, Davis suggested that both he and Hartmann should resign "for the good of the process," adding, "If he believes in military commissions as strongly as I do, then let's do the right thing and both of us walk away before we do more harm."

Now Prosecutors are famous for liking to add convictions to their roster. But here you have a prosecutor who feels strongly that he's being pushed in one direction, and therefore unable to conduct a just and fair prosecution. It speaks volumes about the injustice from Cheney and Bush's side, and at the same time about the sense of justice and fairness from the military prosecution's side.
Officials who spoke to the Journal's Jess Bravin made it clear that Col. Davis was not alone in his complaints. A lawyer close to the process explained that, although Hartmann had complained that, after four years, the prosecution was "still unready to try cases," and was frustrated with their "can't do" approach, some of the prosecutors regarded him as "'micromanaging' cases he doesn't fully understand."

Brig. Gen. Hartmann escaped unscathed from Col. Davis' accusations -- and in fact it was Davis, alone, who resigned on October 4 -- and he also escaped censure the following month, when, during a pre-trial hearing for Omar Khadr (the Canadian who was just 15 years old when he was captured in July 2002), Khadr's defense team announced that they had just been informed of the existence of an eyewitness to the main crime for which Omar was being charged -- the death of a U.S. soldier in a grenade attack -- whose testimony could exonerate their client.

This was extraordinary enough, in and of itself, but what made the story particularly shocking was prosecutor Jeff Groharing's admission that, as the Los Angeles Times described it, "he had been prohibited from talking about the case" by Brig. Gen. Hartmann.

Which brings us to the question: who exactly put up Brig. Gen. Hartmann to this task? What exactly was his purpose? Since when does someone who is not a party to the court itself have the power to interfere with the prosecutor assigned to a case? Why did they impose Hartmann in a role that obviously is designed to practically force a conviction in a sham "trial"???? A sham trial of children???? Are these the terrorists we need to convict? Are we supposed to sacrifice our entire system of justice in order to convict some children of terrorism in order to say "Yes! This War Without End is justified!"????? It defies reason!

Finally, the judge presiding in Salim Hamdan's "terror" case (he was Osama bin Laden's driver), Capt. Keith Allred, disqualified Hartmann from the case, with this explanation:

"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."

What a powerful indictment of the Bush administration's travesty of justice at Guantanamo and their sacrifice of any form of conscience for political gain. It's a pattern observed on every level - from the firing of prosecutors at the Justice Department to the catastrophic invasion of Iraq and the disastrous conduct of the war, and to the destruction of Constitutional guarantees in everything from surveillance of the general public, to their free-for-all economic tsunami to sham justice at Guantanamo - nothing is safe from their lust for power at any cost.

In August, Hartmann was excluded from Mohamed Jawad's trial for the same reasons. Jawad's lawyer, Maj. David Frakt, told the judge, Col. Stephen Henley, that Hartmann "usurped the role of a prosecutor -- rather than acting dispassionately -- and pushed to get Jawad charged because the case involved battlefield bloodshed." Frakt also pointed out that Hartmann had "failed to turn over defense documents" to Susan Crawford, even though these documents "outlined mitigating circumstances that might have altered her decision to endorse the charges." He also secured testimony from an unlikely ally, Brig. Gen. Zanetti, the deputy commander of Guantánamo's Joint Task Force, who declared that Hartmann's demeanor was "abusive, bullying and unprofessional … pretty much across the board," and described his approach to the Commissions as, "Spray and pray. Charge everybody. Let's go. Speed, speed, speed."

Three weeks ago, Hartman was barred for a third time, this time from any post-trial review in Omar Khadr's case. The judge, Col. Patrick Parrish, had refused a request from Khadr's lawyers to disqualify Hartmann from involvement in Khadr's trial, but he barred Hartmann from reviewing it, in the case of a conviction, for the same reasons as those described above.

Sounds like a bullet train to me - but not a trial. Who put this Hartmann guy up to this? Don't we already know?? So what happened to Hartmann? Was it "3 Strikes & You're Out"? No! When the Angler has a hand, his point man gets a promotion. Yes! This sucker got promoted. And it's all hush-hush...
Instead of losing his job, however, Brig. Gen. Hartmann was actually promoted to a new post, as director of operations, planning and development for the Commissions, responsible, as the Associated Press put it, for "such activities as the hiring of dozens of lawyers and paralegals and ensuring there are adequate resources for the massive legal undertaking. His deputy, retired Army Col. Michael Chapman, took over as legal adviser.

This move may have partly been done to take Hartmann off the front burner, as the heat of public scrutiny turns on. But on the other hand, Hartman did just get a promotion, and so he now actually has more power, not less:
Although the Associated Press reported that the new job "takes Hartmann away from direct supervision of the prosecution," other observers were not convinced. The Washington Post reported that Human Rights Watch had stated that "instead of trying to clean up house, the Pentagon has now moved a man accused of bullying prosecutors to bring cases to trial and dismissing concerns about evidence being tainted by torture into a position coordinating all matters relating to the commissions."

This was no mere cover-up ploy. It was a redeployment designed to implant the curse of Cheney's torture and injustice schemes deeper into the system.
Speaking to the AP, Davis was even blunter, comparing Hartmann to a "cancer" that had infected the entire Commission process. "The only way to ensure cancer can do no harm," he said, "is to get it out of the body."

Or, in Hartmann's own words,
"I feel like it's an elevation, a promotion, because it recognizes … the exponential growth of the commissions," the AP reported him as saying, and in the Washington Post he claimed that, although "the recent court rulings forced him and others at the Pentagon to think about his role," the reason for his new assignment was that "he and his superiors thought that the 'best way to run the system was to take this more senior leadership position."

Hartmann continued crowing in comments to the Miami Herald. Likening his new job to that of a "chief executive officer at a 250-staff corporate headquarters," and adding that he "had no fixed budget," he declared that his biggest challenge was "to keep the process moving, really intensely." He added, "Everybody needs to start seeing more trials. I want those courtrooms to be as filled up as they can possibly be -- six days a week."

What "exponential growth"??? Are they planning to make it so nobody can stop them? Is this a train wreck Cheney is pushing down the track of no return?? What the hell kind of justice system wants more, more, faster, faster? A kangaroo court has much more justice than the US Military Commission system as Cheney would style it.

Andy Worthington agrees:
And when this is looked at in detail, Hartmann appears, shockingly, to be little more than a puppet (albeit a willing and hard-working one), whose reassignment is a reward to prevent him from being a sacrifice, which was bestowed upon him by his masters -- in the Pentagon, and in the Office of the Vice President -- who have no interest in establishing a fair or just process at Guantánamo.

Back to the case of Australian David Hicks, who admitted to providing material support for terrorism in March 2007 in exchange for a nine-month sentence to be served in Australia, this was a deal cut directly by Dick Cheney to help his pal Australian Premier John Howard, who at the time was struggling to win re-election, by giving him Hicks as a "trophy". Fortunately for the Australians, they failed to be impressed and voted Howard out.

But how this deal went down shows Cheney's total disregard for the rule of law. He and his pro-torture cronies David Addington and two others - notably William J. Haynes II, the Pentagon's General Counsel, who was "known for his tight connections with the Vice President's Office" - worked out a deal to get Hicks off the hook, cutting off the prosecutor who had just began his seering opening argument painting Hicks as a terrorist. The prosecutor, Col. Davis, didn't find out about the deal until it was done. So instead of the prosecutor cutting the deal, as in actual "courts", here the Vice President and some of his "connections" worked out a deal without the involvement of the prosecution whatsoever, essentially cutting him off at the pass.

Apparently then, this war on terror works as a publicity stunt. Sincere prosecutors, believing themselves to be on the legal end of the war on terror, work on prosecutions. In comes Cheney and cuts a deal without even telling them. The prosecutors have to find out how their cases ended up by reading the newspaper. So it isn't really a war on terror. It's a propaganda tool to gain power, political power, for "Friends of Cheney", Inc.

Col. Davis was also critical of the role played not only by Hartmann and Haynes, but also by Susan Crawford, and he was dismayed by what he described as Hartmann and Crawford's desire to conduct trials "behind closed doors." "Transparency is critical," he wrote, adding that it was "absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality," and pointing out that "even the most perfect trial in history will be viewed with scepticism if it is conducted behind closed doors."

Davis also directed a specific attack at Susan Crawford, explaining that "the political appointee known as the 'convening authority' -- a title with no counterpart in civilian courts -- was not living up to that obligation." As he described it, Crawford, unlike her predecessor Maj. Gen. John Altenburg, whose staff had "kept its distance from the prosecution to preserve its impartiality," had overstepped her administrative role, and "had her staff assessing evidence before the filing of charges, directing the prosecution's pre-trial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases." He continued: "Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused."

As if this were not enough, said in an interview with the Nation:

"[Haynes] said these trials will be the Nuremberg of our time," recalled Davis, referring to the Nazi tribunals in 1945, considered the model of procedural rights in the prosecution of war crimes. In response, Davis said he noted that at Nuremberg there had been some acquittals, which had lent great credibility to the proceedings.

"I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process," Davis continued. "At which point, [Haynes's] eyes got wide and he said, 'Wait a minute, we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.'"

Rigged trials, torture: the legacy of Bush and Cheney... Let's hope this shake-up will uproot the designed injustice those enemies of justice are trying to institute. Let's hope the American public will realize what's going on and let them know...

Only if Cheney et al feel that there is an outcry against them, and that they will be held responsible for undermining justice, then and only then, is there a chance that we can climb out of this darkest era in U.S. history.

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