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Gitmo Chief Judge in 2002: Tribunals Would Have "Credibility Problems"
The military commissions at Guantanamo Bay have plenty of critics. But here are two in particular worth mentioning.
Earlier this week, the former chief prosecutor at the tribunals, Col. Morris Davis blasted the system in an op-ed, calling the system "deeply politicized" (that same day, the administration arbitrarily barred him from testifying to Congress).
And today The New York Times has this:
Back in 2002, a master’s degree candidate at the Naval War College wrote a paper on the Bush administration’s plan to use military commissions to try Guantánamo suspects, concluding that “even a good military tribunal is a bad idea.”It drew little notice at the time, but the paper has gained a second life because of its author’s big promotion: Col. Ralph H. Kohlmann of the Marines is now the chief judge of the military commissions at the naval base in Guantánamo Bay, Cuba.
The system, Judge Kohlmann wrote in 2002, would face criticism for the “apparent lack of independence” of military judges and would have “credibility problems,” the very argument made by Guantánamo’s critics.
He said it would be better to try terrorism suspects in federal courts in the United States. “Unnecessary use of military tribunals in the face of reasonable international criticism,” he wrote, “is an ill-advised move.”...
Prior terrorism and organized crime cases, he wrote, showed that “the existing United States criminal justice system does not have to be put aside simply because the potential defendants have scary friends.”
Kohlmann appears to have taken the attitude that it's better to work to fix the system from the inside than criticize it from outside. He hasn't disavowed the paper, the Times reports, though he's changed his original opinion that "President Bush’s original order establishing military commissions 'essentially states' that fundamental fairness would not be a part of commission trials." Comforting.
Comments (11)
Republican Muscle wrote on December 13, 2007 4:48 PM:You whiney Democratic wimps
Oh gosh, gee wiz, oh your so strong,
can I feel your muscles. Oh I am just swooning over the raw display of Democratic prowess. Oh my , I feel a bead of sweat trickling down my breast bone.
I do declare I think I may swoon.
Yeah , all you Democratic losers are so pitiful. Get use to republican power -
because there is more to come for many many years.
George Bush is the best thing that ever happened to you all, your like a bunch of
Orwell's Intuition wrote on December 13, 2007 4:48 PM:babies who need to be suckled on a republican tit.
"Republican Muscle":
Yell Loud and Furious wrote on December 13, 2007 4:49 PM:One more stellar example of the degradation of civility whenever Repubs appear on the scene.
Don't you see
The power does not reside in civility
The power resides in the law
Be uncivil goddamn it, and stick up for those laws
Or the republicans will shout you down every time
shipwreckedcrew wrote on December 13, 2007 4:51 PM:This is the trouble with congress
Republicans only hear at a certain uncivil dicible level
Well then yell - damn it
Are you afraid they will beat you up -
that's what the law is for
Note that his concerns all stem from what the public's perception would be of such tribunals -- not whether they could constitute sufficient process due to the detainees under the circumstances.
And, I question how much experience Col. Kohlmann had in federal district court and how familiar he was with the rules of discovery and the rules of evidence -- which are quite different than under the UCMJ.
And, did he advocate application of all procedural protections under the Bill of Rights and various Supreme Court decisions for terrorism detainees?
What about the application of the 4th Amendment? What about application of the Exclusionary Rule or the prohibition on testimonial hearsay under the Supreme Court's Crawford decision?
Col. Kohlmann's suggestion offers many more questions than solutions.
HUH wrote on December 13, 2007 4:55 PM:blah blah blah
no one is listening
Pelosi and Reid have thier ears and eyes covered
S. L. wrote on December 13, 2007 5:51 PM:Given that Guantanamo and the military tribunals hearings were rammed down the military's throats by Rummy and Addington and Yoo, without the consent (and against the advice) of the JAGs, this does not surprise me. Perhaps the person who assigned him to this role actually knew of his paper and said, "go in and try to make this system as fair and credible as it can be, so the military is not completely disgraced." It seems that the chief prosecutor and the other prosecutors who recently resigned were also trying to make an honorable show of a dishonorable enterprise. Think also of the military judges (two of them) who threw out cases because the detainees weren't proven to be "unlawful" enemy combatants, and the defense attorney, Charles Swift, who was ordered to "help Hamden plead guilty," but took his case all the way to the SCOTUS and won, before being booted from the military. I would guess if any of these cases really come to "trial" and these judges feel their decisions are being undermined, they may end up resigning as well.
This is actually the thing that gives me (bipartisan) hope when the Democratic Congress so pathetically fails to deliver: that so many individuals in these various institutions risked their careers and even jail time to try to keep the ship of state afloat under a drunken and suicidal captain. While the Dems in Congress often seem spineless, I think of the people in the DOJ, FBI (somehow those Republicans keep getting indicted), the CIA (how do we know about waterboarding, anyway?),etc,etc who exposed the Bush administration's misdeeds, often risking their careers just for the outcome of a "stern letter" from Durbin. Sometimes, sadly, the most heroic (James Comey, Jack Goldsmith, the aforementioned prosecutors) were probably Republicans or Republican-leaning, but had a moral compass that would only swing so far.
The other thing that gives me hope is places like TPM Muckraker--without whom I think it is absolutely safe to say, Alberto Gonzales would still be the AG.
Anonymous wrote on December 13, 2007 6:31 PM:S. L. wrote on December 13, 2007 5:51 PM:
"Given that Guantanamo and the military tribunals hearings were rammed down the military's throats by Rummy and Addington and Yoo, without the consent (and against the advice) of the JAGs, this does not surprise me."
With all due respect for your optimism, there was nothing stopping the JAGs from pubilcly resigning, and making public statements in 2001 when the problems were first disclosed. Yes, there was pressure; but there was also a duty to resist, and resign.
It's a little late in 2007 to believe he's suddenly concerned. Sounds like he's got a feeling that he's run out of excuses not to resign. He was there, part of the system, knew it was wrong, but kept "hoping" for changes. He didn't timely leave.
S.L. wrote on December 13, 2007 7:17 PM:Anonymous wrote on December 13, 2007 6:31 PM:
"With all due respect for your optimism, there was nothing stopping the JAGs from pubilcly resigning, and making public statements in 2001 when the problems were first disclosed. Yes, there was pressure; but there was also a duty to resist, and resign."
I don't know that this is such an obvious moral choice. In 2001, who would even have given him a forum? The Admin PR machine always finds a way to spin retired generals as "disgruntled" former employees, or to make them sound out of the loop. (The chief prosecutor who resigned was forbidden to talk to Congress, and even his objections are being spun as personnel issues). And if you knew that the military would just replace you with a true-believer, wouldn't the moral choice be to stay in your job and try to provide as fair a trial as you could, resigning only when all legal maneuvers failed (as the prosecutors did)?
I just don't think it's a simple choice to make. I think you are right in the end, though. The mistake they made was thinking that good people can make up for a bad system. A good system can sometimes guard against bad people, but I'm not sure the reverse is true, especially when there are VERY BAD people at the top.
Anonymous wrote on December 13, 2007 7:59 PM:[ S.L. wrote on December 13, 2007 7:17 PM ]
SL, thank you for your comments. I concur with your points, but disagree with the timing and decision to remove onself.
A. Duty of Independent Action Regardless Media Support
SL: "In 2001, who would even have given him a forum?"
The issue isn't the forum (outflow of information to the public), but whether he, as a JAG, was still supporting that. People who opposed Hitler: Were they to do nothing because they couldn't get the right "coverage"? No, they acted to do what was right, not make excuses to keep doing what was wrong.
B. Option and Duty To Resign Existed
SL: "I just don't think it's a simple choice to make. " Maybe for you, but that doesn't mean the option wasn't there: Resign.
The issue isn't morality, but legal duties of JAGs and Attys to resign from illegal actdivity. It's not a personal matter of right or wrong, but a legal obligation to refuse to stay connected with what is not lawful.
C. Public Legal Obligations Before Personal Financial Interets
SL: "And if you knew that the military would just replace you with a true-believer, wouldn't the moral choice be to stay in your job and try to provide as fair a trial as you could, resigning only when all legal maneuvers failed (as the prosecutors did)?"
This isn't an argument, but an excuse. People who are in the US government and continue doing what they know is wrong have no defense.
The real issue appearse to be: People in the US government were paid money to be silent about illegal activity; and they though if they refused to stand up, that they would lose money to pay for their retirement and mortages. That was their choice. But it's not a financial issue when the laws of war are ignored: It's a legal issue.
D. Monitoring Results
SL: "The mistake they made was thinking that good people can make up for a bad system"
Indeed, that is an error: When good people are chewed up, and the system does not change despite the efforts from within or without. But the "momentum" of what is wrong does not justify staying with that momentum, it compels a decision: Can I afford to be wrong?
There are options. This JAG appears to have attempted to do something, but failed to remove himself. it's one thing to claim one "tried" to change things; but the reality: Despite "trying" things were not changing. There have been alleged war crimes. These appare to have been well known since 2001. JAGs raised the issues and concerns in 2001 with the memos to the POW working groups.
E. Duty to Disobey Illegal Orders to Suppress Alleged War Crimes Evidence
SL: "(The chief prosecutor who resigned was forbidden to talk to Congress, and even his objections are being spun as personnel issues)."
This doesn't mean that an apparent illegal order to be silent about illegal acdtivity should be followed. Curious they claim they resigned because of illegal activity; but would not disobey apparently illegal orders to be silent about that illegal conduct.
Anonymous wrote on December 13, 2007 7:59 PM:Lt. Watada refused.
S. L. wrote on December 14, 2007 1:28 PM:Anonymous:
I agree with you (and Lt. Watada) that the entire war was illegal and I personally would choose not to participate in any way. Then again, I am a pacifist and would never have joined the military.
However, I think even at Nuremberg, the foot soldiers of the German military were not charged if they, themselves, did not commit war crimes, even though the German occupation of Poland, etc. were clearly illegal. The US courts have not convicted Lt. Watada (mistrial I believe) but they did not allow his argument that the war itself was illegal, either.
You have a duty (in US military law) to disobey and report illegal orders, but if that information is classified and you report it all the way up the chain of command and nobody cares, I believe you are out of legal options. I'm not saying you are out of moral options, just legal ones. (IANAL, though, so I could very well be wrong.) But it seems that some of these JAGs did balk when they were asked to do something that would make them personally guilty of war crimes--the prosecutor who refused to prosecute someone whom he knew had been tortured, for example. The chief prosecutor was only willing to bring cases where the evidence was acquired by legal means and could be declassified, the pressure to do otherwise is why he ultimately resigned.
The line they seemed to be walking reminds me of the scene in Man for All Seasons when St. Thomas More is given the oath to sign swearing his allegance to the Act of Succession. He tells his daughter he must scrutinize the oath to see if there is any way that he can sign it in good conscience, because God does not like people to martyr themselves needlessly. He found he could not, and was beheaded. Having the moral courage to do that made him a Saint in the eyes of the Catholic church. I think Lt. Watada is in the same class, but these are the exceptions, rather than the rule.