Document | Judge Allred's ruling disqualifying the general
Document | Unlawful Command Influence motion
The judge, Navy Capt. Keith Allred, ordered the Pentagon's General Counsel to assign a new official to oversee the trial in place of Air Force Brig. Gen. Thomas W. Hartmann, the Defense Department's legal adviser for military commissions.
Allred issued the 13-page ruling Friday little more than a week after lawyers for the driver, Salim Ahmed Hamdan, 36, of Yemen, called witnesses to testify that during nearly a year as legal adviser Hartmann had pressured for swifter more numerous prosecutions at the commissions.
Hamdan's trial is presently slated to open June 2 as the first full U.S. war crimes tribunal since World War II. Whether that schedules still holds is uncertain.
Allred wrote that he found ''substantial doubts'' about Hartmann's independence from Hamdan's prosecutors, in part ''based on the length and intensity of the Legal Adviser's involvement with the prosecution in general, as well the impact of his actions'' in Hamdan's case.
The driver, the Navy captain wrote, should be assured "fair and objective advice to which he is entitled during the balance of this case.''
Hamdan's lawyers had asked the judge to go further, and dismiss the case. Allred did not.
''It's a pretty powerful repudiation of the role that he [Hartmann] sought to play in the last 10 months,'' said Hamdan defense attorney Andrea Prasow, a civilian member of the team on the Pentagon payroll.
Hartmann had succeeded a more soft-spoken, low-key legal adviser who had commented sparingly to the public in the role of an adviser who analyzed cases for senior leadership.
In contrast, Hartmann was a more aggressive player. During hearings at Guantánamo, he would frequently ring the base from his Pentagon perch, offering a steady steam of commentary and instructions to prosecutors, defense lawyers, aides, clerks and, in some instances, reporters.
No detail seemed too small or too large -- from flight schedules and who would sleep in tents versus trailers to selection of which of the 270 or so detainees would face trial as war criminals.
In his ruling, Allred also ordered the Defense Department's General Counsel, currently Daniel J. Dell'Orto, to make sure that Hamdan's trial prosecutors suffer no ''adverse consequence'' or "professional embarrassment.''
Allred had received written testimony that the Hamdan prosecutors had complained, through Pentagon channels, about Hartmann's meddling.
The timing of Allred's decision is significant: It comes just weeks after Hartmann sent to the Pentagon's war court Convening Authority his recommendation on how to proceed with a complex death-penalty prosecution of six alleged al Qaeda conspirators in the Sept. 11, 2001, attacks on the Pentagon and World Trade Center. Chief among the accused is reputed 9/11 mastermind Khalid Sheik Mohammed.
In light of Allred's ruling, military defense attorneys predicted more challenges of the independence of the military commissions.
Allred's ruling noted that he was ''troubled'' by testimony indicating that Hartmann pick and chose among cases ''because of political factors'' including ``whether they would capture the imagination of the American people, be sexy or involve blood on the hands of the accused.''
Such reasoning, he said, "suggests that factors other than those pertaining to the merits of the case were at play.''
Hamdan's attorneys took an earlier commissions format to the U.S. Supreme Court and won a ruling that President Bush exceeded his authority in setting it up; Congress has since authorized the format, with some modifications.
Hartmann's successor will have the power, among other things, to fund defense experts, travel and staff for Hamdan's four-attorney legal team, including a consulting psychiatrist.
Hamdan faces a maximum of life in prison for allegedly providing material support for terror and being an al Qaeda co-conspirator; prosecutors say while he may not have known or plotted al Qaeda attacks, he should be found guilty for driving in al Qaeda leader Osama bin Laden's motor pool and serving as his sometime bodyguard.
U.S.-allied forces captured Hamdan, a father of two with a fourth-grade education, in November 2001 in southern Afghanistan, allegedly with two surface-to-air missiles in his car -- driving toward the Battle for Kandahar.
A Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, declined to discuss the ruling, saying "Defense Department officials" were reviewing it. He did not specify who was reviewing it, although typically it would be the job of the legal adviser, meaning Hartmann.
Calls and emails to Hartmann's staff also went unanswered, including an inquiry on whether and how he might appeal it.
The ruling came a week after Hamdan's Navy lawyer called the Pentagon's Chief War Court prosecutor as a defense witness in a motion arguing ''unlawful command influence'' -- a grave accusation in military circles.
The ex-prosecutor, Air Force Col. Morris Davis, testified that he believed Hamdan was a war criminal, but that he resigned his post because Hartmann had pressured prosecutors to rush ahead with other cases even before evidence was declassified, meaning they would require secret sessions and secret evidence.
Davis testified that he resigned in October after losing a power struggle to Hartmann over the independence of his office, and feared cases would be brought with from rough interrogations. The CIA has confirmed that it subjected three Guantánamo detainees to waterboarding -- simulating drowning to break them -- in secret custody elsewhere.
Moreover, the deputy defense counsel, Mike Berrigan, testified that Hartmann had not sufficiently resourced the military attorneys assigned to defend suspected terrorists with everything from experts to paralegals to space to handle secret evidence.
Hartmann has been an outspoken advocate of the special war-on-terrorism court, defending the process as granting alleged terrorists unprecedented rights akin to U.S. service members at traditional courts-martial.
His opponents have argued that he has not served as an independent intermediary at the war court, and has acted as proxy prosecutor by having attorneys in his office, rather the prosecutor's, prepare charge sheets against six Guantánamo captives accused in the 9/11 conspiracy.
In the latest example of Hartmann's hurry-up leadership style, his staff brought on-line a $12 million ''expeditionary'' courtroom on Wednesday -- only to have the audio, video, then electrical systems fail during arraignment of an alleged al Qaeda propagandist, Ali Hamza al Bahlul
The judge in that case, Army Col. Peter E. Brownback III, continued with the formal read of charges in a dimly lit ostensibly state-of-the-art court, with guards surrounding the accused who had sat passively throughout the morning's glitch-riddled proceedings.
