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Unlawful Command Influence

Jamil Dakwar,
Director, ACLU Human Rights Program
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June 23, 2008

Mohammad Jawad's military commission hearing last week was unusual for many reasons. Jawad was a minor when he was captured in Afghanistan and now faces life in prison if convicted for allegedly throwing a hand grenade that wounded two U.S. soldiers and their Afghan interpreter in December 2002. Not only did the pre-trial hearing last 14 hours, but there were several "firsts:" a prisoner (Jawad) testified about the mental torture and abuse he suffered under the frequent flyer sleep deprivation program; a civilian sleep deprivation expert, Harvard Professor Dr. Janet Mullington, testified via video conference from Hanscom Air Force Base about the short- and long-term mental effects of sleep deprivation; and, finally Brig. Gen. Thomas Hartmann, the Legal Advisor to the Convening Authority, testified before the commission.

Brig Gen. Hartmann, a witness for the government, was called to testify to counter the defense testimony of Col. Morris Davis. Col. Davis, the former chief prosecutor of the military commissions, quit his position in October 2007 in protest of Brig. Gen. Hartmann's overbearing interference in the work of the prosecution, and immediately thereafter became a popular defense witness, testifying and speaking publicly about Hartmann's improper political interference. It was truly a surreal scene watching a military supervisor cross-examine his subordinate (Col. Lawrence Morris, the chief prosecutor, cross-examined the deputy chief prosecutor, Lt. Col. William Britt, who served under Col. Davis) and military defense counsel challenge the credibility of a superior officer in the Air Force JAG Corps Reserve. (Unlike Office of Military Commission's-prosecution team, Maj. Frakt of the Office of the Chief Defense Counsel is independent and is not subordinate to the Legal Advisor, Brig. Gen. Hartmann).

The chief prosecutor's task was more than just defending the government's case against Jawad's motion to dismiss all charges due to unlawful influence. Col. Morris also attempted to seize the moment to defend the integrity of this tainted and discredited system and, more importantly, discredit the validity of the former chief prosecutor's account. Col. Davis' testimony in the case of Salim Hamdan resulted in the disqualification of Brig. Gen. Hartmann in any future dealing with that case (PDF), and caused serious damage to the world's perception of this system of injustice.

The military defense counsel, Maj. David Frakt, relied heavily on Col. Davis' testimony and tried to show that Jawad's case was prioritized and charges were advanced only to satisfy Brig. Gen. Hartmann's eagerness to move the process forward. Lt. Col. Britt testified that Brig. Gen. Hartmann was "very enthusiastic" about Jawad's case, believing it would "grab the public's attention." Lt. Col. Britt testified that "there is no doubt in my mind that [Brig. Gen. Hartmann] was the driving force behind the prosecution's effort." Lt. Col. Britt said on the witness stand that he was not aware of any evidence of abuse against Jawad and was not aware of the fact that Jawad was subjected to the frequent flyer sleep deprivation program. He stated this despite the clear evidence revealed in the prison logs that were turned over to the defense team. However, Lt. Col. Britt made it clear on the stand that he would not, as a matter of personal ethics, allow charges against anyone he believed to have been tortured to move forward. This testimony supported the defense assertion that had the prosecution not rushed to file the charges and done their due diligence, as required of them, the charges against Jawad would probably not have been filed.

While Col. Davis' testimony was not very different from his testimony in the Hamdan case, he appeared more wounded, having been denied a medal from the Department of Defense for his service. Col. Davis testified that under Brig. Gen. Hartmann's tenure, the prosecution's office suffered from an "environment of fear" which discouraged prosecutors from speaking their minds. Although the defense's request to get access to Col. Davis' emails when he was the chief prosecutor was not processed, Col. Morris, in cross-examination, used one of the old emails in an attempt to discredit Col. Davis' assertion that charges against Jawad weren't ready to be filed and referred by the Convening Authority.

The prosecution invited Brig. Gen. Hartmann to provide testimony — something that it did not seek in the Hamdan case — in an attempt to offer him the chance to set the record straight. The prosecution asserted that there was no unlawful command influence and tried to paint a picture of, at best, an unpleasant work environment due to personality issues. Brig. Gen. Hartmann testified that his authority over the prosecution does not enable him to order charges, but does enable him in to insure that the system moves in a systematic speed. He expressed dissatisfaction with the work of Col. Davis and defended the statement attributed to him as saying the prosecution should bring cases that capture the imagination of the American people. He confirmed that he created a timeline for the cases to be filed by the prosecution and described his management style as "intense and direct."

Asked specifically about Jawad's case, Brig. Gen. Hartmann testified that he believed Jawad was 16, 17, or 18 years old, and was not aware of the criticism regarding the age of Omar Khadr, another minor (when he was first detained) who is also facing a military commission. But, Brig. Gen. Hartmann denied ordering the prosecution to file charges in this case. Finally, he testified that he was not aware of the frequent flyer sleep deprivation program. He stated this in spite of the fact that Jawad's military defense lawyer, Maj. Frakt, shared with him prior to his testimony a classified version of the prison logs which revealed the frequent flyer program! While the military judge will rule soon on the defense's motion to dismiss all charges due to unlawful influence, the judge ordered a medical examination of Jawad to determine if he is competent to stand trial.

The new details published in a front page story in last Sunday's New York Times about how Khalid Sheikh Mohammed was waterboarded 100 times should make people question how this system will deliver justice. These doubts are only exacerbated when we learn that the Legal Advisor charged with overseeing the process seems to be less interested in whether torture was used against the prisoners than in pushing the trials forward in the midst of the presidential election.

CORRECTION: An earlier version of this post incorrectly stated that officially, Maj. Frakt is under Brig. Gen. Hartmann's command. The Office of the Chief Defense Counsel is independent of the Legal Advisor. Brig. Gen. Hartmann is, however, a superior to Maj. Frakt within the Air Force JAG Corps Reserve.

In addition, the previous version of this post should have emphasized that the charges against Jawad would have undergone due diligence — and probably would not have been filed — had Hartmann not pressured the prosecution to file charges.

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