Former detainee czar urges war court shake-up
September 5, 2008   By:    Brig Gen Thomas Hartmann, Omar Khadr   Comments are off   //   425 Views

By Carol Rosenberg

MIAMI — A former Bush administration official responsible for detainee operations urged the Pentagon on Friday to replace the war court’s top lawyer — an Air Force Reserves general whom three military judges have excluded from portions of military commissions at Guantanamo Bay, Cuba.

In the latest ruling, an Army judge said Thursday that the terror murder trial of Canadian captive Omar Khadr, 22, can go forward on Oct. 8. But, should there be a conviction, the legal adviser, Air Force Brig. Gen. Thomas Hartmann, would be disqualified from reviewing it because of an appearance of pro-prosecution bias.

On Friday, Heritage Foundation scholar and former Pentagon Detainee Affairs czar Charles “Cully” Stimson fundamentally invoked a three-strikes-you’re-out argument.

Because three military judges have now barred Hartmann, whose title is “legal advisor to the convening authority,” from various stages of different trials, the process was inviting more challenges and appeals in military commissions, he said. Specifically, he cited the prosecution of five alleged Sept. 11 co-conspirators, which Hartmann helped shepherd.

Stimson’s comments were noteworthy in part because he had been deputy assistant secretary for detainee affairs at the Defense Department for nearly three years, then resigned that job amid another detainee controversy.

“If Hartmann continues in this role and soils each case that he touches, by definition it will result in reversal or it will result in the next judge removing Hartmann and the next judge removing Hartmann,” Stimson said. “How many times do you have to get kicked in the shins and say ouch?”

Stimson said the Air Force general who in civilian life is general counsel at a Connecticut-based energy firm should be “thanked and excused from his service.”

Also, he said, the Defense Department should reorganize the role of legal advisor to separate the supervision of the Pentagon’s War Crimes Prosecutor from the legal authority that independently reviews the cases.

In response, Pentagon war court spokesman Joseph DellaVedova said Friday that Hartmann “remains focused on doing his job as the Legal Advisor to the Convening Authority and he will continue to do it.”

Besides legal issues, Hartmann was also working on logistics, staffing, developing policy and “public education,” he said.

“We cannot speculate,” DellaVedova added on what other war court judges might do about Hartmann’s three disqualifications because, under military commissions law, one military judge’s finding is not precedent in another case.

But down the road, Stimson said, in either a John McCain or Barack Obama administration, there will still likely be military trials of Guantanamo detainees and the structural problem should be repaired.

McCain’s campaign has said the former Vietnam POW would keep military commissions, the post 9-11 war crimes tribunals but does not feel bound to stage them at the remote U.S. Navy base at Guantanamo Bay, Cuba. Obama’s team has advocated traditional trials in federal court and by military court martial.

“For the good of the commissions process or the court-martial process going forward, Hartmann’s role needs to be reassessed or altered,” he said.

Hartmann has been one of the biggest champions of kick-starting the sputtering war court system. Since he was mobilized to duty last year, more than a dozen war crimes cases have been charged. Seven of the alleged terrorists under charges at Guantanamo could face execution if convicted.

Hartmann himself has defended his aggressive management style as apolitical no-nonsense management, but two Army judges and one from the Navy have ruled after taking testimony at Guantanamo that there was a perception that he favored the prosecutors.

Stimson, also an attorney, is a Navy reserves JAG officer who in February 2007 left a top Pentagon post after becoming mired in a Guantanamo legal controversy.

On the fifth anniversary of creation of the prison camps, Stimson used a radio interview to name law firms that gave free defense services to war-on-terror captives and said corporate executives should “choose between representing terrorists or representing reputable firms.”

The remark ignited fury in U.S. legal circles that see so-called pro-bono defense services as a bedrock American principle. Stimson apologized but the controversy did not abate, so he resigned.

“He had come to the determination that the controversy surrounding him was hampering his ability to be effective in this position,” Defense Department spokesman Bryan Whitman said at the time. “And he wanted to put the needs of the department ahead of his own.”

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