In a new blow to the Bush administration’s troubled military commission system, a military judge has disqualified a Pentagon general who has been centrally involved in overseeing Guantánamo war crimes tribunals from any role in the first case headed for trial.
The judge said the general was too closely aligned with the prosecution, raising questions about whether he could carry out his role with the required neutrality and objectivity.
Military defense lawyers said that although the ruling was limited to one case, they expected the issue to be raised in other cases, potentially delaying prosecutions, including the death-penalty prosecution of six detainees at Guantánamo Bay, Cuba, for the Sept. 11 attacks.
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Critics of the military commission system said Friday that the judge’s decision would provide new grounds to attack the system that they say was set up to win convictions.
The judge, Capt. Keith J. Allred of the Navy, directed that Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, a senior Pentagon official of the Office of Military Commissions, which runs the war crimes system, have no further role in the first prosecution, scheduled for trial this month.
General Hartmann, whose title is legal adviser, has been at the center of a bitter dispute involving the former chief Guantánamo military prosecutor, Col. Morris D. Davis of the Air Force.
Colonel Davis has said the general interfered in the work of the military prosecution office, pushed for closed-door proceedings and pressed to rely on evidence obtained through techniques that critics call torture.
“National attention focused on this dispute has seriously called into question the legal adviser’s ability to continue to perform his duties in a neutral and objective manner,” the judge wrote on Friday, in a copy of the decision not released publicly but obtained by The New York Times. Decisions by Guantánamo judges are not typically released publicly until days after being handed down.
Cmdr. Jeffrey D. Gordon of the Navy, a Pentagon spokesman, declined to comment on the ruling, saying senior Defense Department officials were reviewing it.
Reached at his office shortly after the decision was distributed inside the Pentagon, General Hartmann said he could not talk. His spokeswoman did not respond to requests for comment.
General Hartmann, who has been a controversial figure since his appointment last summer, is the legal adviser to the Pentagon official with broad powers over the war crimes system, Susan J. Crawford. She has the military title of Convening Authority of the Guantánamo war crimes cases.
Ms. Crawford has never made a public statement in her role.
General Hartmann has been the military official most publicly identified with prosecutions in recent months. It was he, for example, who announced the Sept. 11 charges and has publicly pressed prosecutors to move faster.
Ruling on a defense lawyers’ request that said General Hartmann had exerted unlawful influence over the prosecution, Judge Allred said that public concern about the fairness of the cases was “deeply disturbing” and that he could not find that the general “retains the required independence from the prosecution.”
Pentagon officials could ask the judge to reconsider, could appeal to a special military appeals court created to hear Guantánamo cases or could replace General Hartmann.
General Hartmann has denied Colonel Davis’s assertions and said the commission system would “follow the rule of law.” He has also said he has pressed prosecutors and others involved in the tribunals to move the cases more quickly.
As convening authority, Ms. Crawford has powers over the entire war crimes system, including the power to approve or reject charges, to reach plea deals and to provide financial resources to the prosecution and the defense.
Among officials in the war crimes system, General Hartmann was assumed to have been acting on her behalf. But the judge did not find there was evidence suggesting she should be removed even from the single case.
Judge Allred’s ruling followed a hearing in Guantánamo on April 28 at which Colonel Davis said General Hartmann pressured him in deciding what cases to prosecute and what evidence to use. The judge called the hearing after lawyers for a detainee, Salim Hamdan, said his charges were unlawfully influenced. – nyt