Brig. Gen. Hartmann Responds to Col. Morris Davis

In the op-ed below, Brig. Gen. Thomas Hartmann responds to Col Morris Davis’ op-ed (LA Times, Dec 10, 2007) regarding the reasons for his resignation.

In the op-ed, BG Hartmann does not address the essence of Davis’ argument: that he was forced to use illegally obtained evidence. To that end, in his Congressional testimony (Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security, Tuesday, December 11, 2007) BG Hartmann suggested that information received from a detainee subjected to water-boarding would be admissible evidence in a military commission trial.

Furthermore, Hartmann’s claim that “the process offers unprecedented rights to alleged war criminals” is troubling as, to the best of my knowledge, the US has not declared GITMO detainees to be “war criminals.”

In that context, it is important to note that according to various reports, Chairman of the Joint Chiefs of Staff, Navy Adm. Michael Mullen, will order use of the term “War on Terrorism” be discontinued.

BG Hartmann has on two occasions failed to address the most important issue raised by Morris-the use of illegally obtained evidence in the military commissions. That, it seems to me, must be the essence of the ongoing debate regarding future interrogations.

L.A. Times

There will be no secret trials

A Defense Department legal advisor responds to his subordinate’s resignation. By Thomas W. Hartmann

December 19, 2007

I have read with great disappointment the Op-Ed article by Morris D. Davis, former chief prosecutor for the Office of Military Commissions, particularly his comments with regard to Susan Crawford, the military commissions convening authority.

Since October, Davis has repeatedly complained about the very military commissions he oversaw for two years. He has criticized the commission process for moving too slowly, resulting in only one case being tried, by a guilty plea. After that plea was negotiated, with Davis’ written concurrence, he claimed publicly that he was not properly consulted.

Davis has recently protested that politics has been inserted into the process, which he in many ways controlled, alleging improper pressure from me, from the department’s general counsel, Jim Haynes, and now from Crawford. Specifically, Davis insinuates that she is politically motivated and that she lacks impartiality. He claims – though that he never breathed a word of this to me – that the pressure to move cases more rapidly was politically motivated.

But one should be careful when one challenges the reputation of others. Crawford has not directed or influenced the way any military commission case will be tried. Davis knows that I, without any political interference, directed him to evaluate more carefully the evidence, the cases, the charging process, the materiality of the cases, the speed of charging, the training program and the overall case preparation in the prosecution office. Interestingly, when I testified before Sen. Jeff Sessions (R-Ala.) that some cases are moved more quickly than others because they have the most material evidence, he commented: “Well, I think it’s almost prosecutorial incompetence not to think in those terms. It’s important that you do so.”

Davis further contends that he resigned within hours of learning that I would report to General Counsel Haynes, and as my subordinate, Davis would be under Haynes in the chain of authority. This was also just hours after he learned the results of an independent military panel – appointed by Haynes after consultation with the service Judge Advocates General – that concluded I had not improperly asserted my authority. That report was immediately made available to the public. It is worthy of note that Haynes had, months before, signed a performance evaluation on Davis, suggesting that Davis was already in the chain of command. Davis did not object then.

Davis also charges that the commissions are no longer “full, fair, and open trials.” This is particularly biting as he knows that the process offers unprecedented rights to alleged war criminals. Indeed, he wrote and spoke of that often. He also knows how much effort the prosecution and defense teams have dedicated to the fairness of the process – a process played out in United States vs. Hamdan.

Regarding his new allegations that the trials are not open, Davis knows that national security demands that certain evidence remain classified. He had an especially high security clearance for that very reason. But there will be no “secret” trials. Though we must safeguard classified information in order to protect ongoing operations and our soldiers, sailors, airmen and marines, not one piece of evidence will go to a commission jury without review and the opportunity to object by the accused and his counsel.

Military commissions are now moving forward fairly and transparently. As they continue, critics will see uniformed service members, including judges, prosecutors and defense counsel, conduct trials with the dignity, fairness, and respect for law that defines American military justice – a justice system that remains the envy of the world.

Air Force Brig. Gen. Thomas W. Hartmann is a legal advisor to the Department of Defense Office of Military Commissions.

Cross-posted on the National Security Advisors Blog

For more information, see the Volokh Conspiracy Blog, “Brig. Gen. Hartmann Responds to Col. Davis” view comments here.