Tribunals overseer under investigation
A Pentagon official overseeing the Guantanamo war crimes tribunals is the subject of two investigations into his conduct, including one wide-ranging ethics examination into whether he abused his power and improperly influenced the prosecutions of enemy combatants.
An internal Air Force investigation into the activities of Brig. Gen. Thomas W. Hartmann appears to be the more significant of the two probes because it was launched only after a preliminary inquiry found sufficient grounds to move forward, military officials said.
The Air Force is reviewing allegations that Hartmann bullied prosecutors, logistics officials and others at Guantanamo -- resulting in cases going to trial that were not ready and the prosecution of at least one individual on charges that were unwarranted -- and assertions that he advocated using coerced evidence despite prosecutors’ objections.
It also is looking into allegations that Hartmann made intentionally misleading statements, both in public and during the Guantanamo tribunal proceedings, in an effort to downplay the direct role that he played in the overall prosecution effort and in several cases, according to interviews with military lawyers.
A second investigation, being conducted by the Department of Defense’s Office of the Inspector General, was sparked by the complaints of at least two military officials about Hartmann’s allegedly abusive and retaliatory behavior toward them within the Office of Military Commissions. That office oversees the prosecutors and defense lawyers in the terrorism trials taking place at the U.S. naval base at Guantanamo Bay, Cuba.
The investigations will further undermine the credibility of the tribunals just as some of the most high-profile cases -- including the trial of five men alleged to have helped plot Sept. 11 -- are getting underway, according to some military defense lawyers at Guantanamo, former prosecutors who have quit in protest and human rights officials.
The investigations will “cast doubt on all of the decisions that have been taken under his tenure,” said Hina Shamsi, a staff attorney for the American Civil Liberties Union and an officially designated trial observer at Guantanamo.
Hartmann, 63, was the legal advisor to the administrator of the tribunals until last month, when he was given the newly created position of director of operations, planning and development for military commissions.
The chief counsel to Connecticut-based MXenergy Holdings Inc. and an Air Force reservist with experience as a military prosecutor, he was called up for active duty in July 2007 specifically for the Guantanamo post.
Joseph DellaVedova, a spokesman for Hartmann and the Office of Military Commissions, said the general was aware of the Air Force investigation but neither he nor the office could comment. “Typically on investigations there is not much we can say until the investigation is done,” he said.
Hartmann’s dual legal role at Guantanamo was controversial from the beginning.
He was responsible for providing legal advice to the war crimes administrator, known as the convening authority, who must make impartial rulings on issues raised by both the prosecution and defense. Hartmann was also responsible for supervising the prosecution of enemy combatants, but not personally intervening in the work of the prosecutors.
Hartmann has steadfastly denied any wrongdoing, testifying in several Guantanamo cases that he acted aggressively but not improperly. The Pentagon has publicly portrayed his transfer as a promotion, given in appreciation for his work in successfully pushing the embattled military commissions process forward after years of delays.
But three Guantanamo judges since May have barred Hartmann from serving as legal advisor in their cases, after supporting at least a portion of defense claims that he exerted “unlawful influence.”
Air Force Col. Morris D. Davis, who resigned as chief Guantanamo prosecutor in October 2007 after frequent clashes with Hartmann, said that “full, fair and open trials were not possible under the system,” and that it had become deeply politicized under the hard-charging general.
He and others said Friday that they welcome the investigation, because the Pentagon has, for the most part, skirted the issue of whether Hartmann undermined the tribunal process by repeatedly overstepping his legal authority and improperly meddling in cases.
Davis and a military defense lawyer told The Times that they have been interviewed at length by the probe’s chief investigator, Air Force Brig. Gen. Steven J. Lepper, about a wide range of issues involving Hartmann’s conduct.
In his interview, Davis said, he told Lepper that Hartmann “grossly exceeded his role as a neutral and independent and impartial legal advisor.”
At least three other prosecutors quit the tribunals in recent years, claiming improper political meddling and other inappropriate behavior by Hartmann and others that they believe stacked the deck against defendants there.
One of them said he too was contacted by Lepper as part of the investigation. He spoke only on the condition of anonymity, citing the ongoing investigation. He said he believes Hartmann “was hammering on other prosecutors to move faster on cases, in one instance demanding that three or more cases a month be initiated” even if they were not ready.
A Pentagon inquiry last year into similar accusations by Davis largely absolved Hartmann, but warned him to avoid getting personally involved in prosecution efforts.
Lepper, a widely regarded staff judge advocate at Scott Air Force Base in Illinois, was tapped for the investigation after one military defense lawyer brought detailed complaints about Hartmann to Lt. Gen. Jack L. Rives in July.
Rives, the judge advocate general for the Air Force, referred the matter to his advisory committee on professional responsibility, which launched a preliminary inquiry and reported that a full investigation was warranted, according to Lt. Col. Alan Liu, chief of the JAG Corps’ professional responsibility division.
Liu said that there is no timeline and that the probe is likely to involve numerous interviews, given Hartmann’s central role in the tribunals. He said that if Hartmann was found to have acted improperly, he would face administrative sanctions that could include removal of his judge advocate general certification. Other military lawyers familiar with the probe said that Rives could transfer Hartmann away from the Guantanamo cases or even ask for his retirement.
Air Force Maj. David J.R. Frakt, a defense lawyer for Guantanamo detainee Mohammed Jawad, said he came forward with allegations about Hartmann because military regulations require one lawyer to report another if there is “a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.”
“I do believe that Brig. Gen. Hartmann has acted in a manner that raises substantial questions as to his honesty, professionalism and fitness as a lawyer,” Frakt said, “and I believe his conduct has been prejudicial to the fair administration of justice in the military commissions.”
The Air Force website says Hartmann in his new role “acts as the senior and single point of contact within the Department of Defense for the initiation, review, staffing, coordination and execution of all planning and development matters relating to military commissions.”
Scott Silliman, a Duke University law professor and 25-year veteran of the Air Force Judge Advocate General Corps, said the case is extremely significant, in that only a handful of U.S. military investigations in recent years have focused on a general -- especially one at the heart of the tribunals that have been a centerpiece of the Bush administration’s global war on terrorism.
“If there is a finding that Hartmann exceeded his role,” Silliman said, “I think every defense lawyer is going to walk in and move for some kind of relief in their case, and say it was not handled properly and move for the charges to be dismissed or refiled based on Hartmann’s activities.”