E-mail to Michael J. Elston

Michael J. Elston
McGuire Woods, LLP
Washington Square, 1050 Connecticut Avenue, N.W., Suite 1200
Washington, District of Columbia 20036-5317
Telephone: 202-857-1700
Fax: 202-857-1737
melston@mcguirewoods.com

Dear Mr. Elston,

I have been researching the conduct of various attorneys in the service of the government of the United States, whether that conduct is a violation of the rules of professional conduct with which each such attorney must comply and authoring factual allegations of conduct that establish violations of the applicable rules of professional responsibility, including Alberto Gonzales, Kyle Sampson, Harriet Miers, Lisa Murkowski, John Yoo, Mark Everett Fuller, Monica Marie Goodling, Thomas W. Hartmann and, now, yourself. In addition to the allegations in the complaint recently filed against you in Virginia by CREW, your conduct in the firing of the United States Attorneys also violated several of the rules of professional conduct of the Illinois, Kansas, Missouri and Virginia Bars. These actions also raise a substantial question as to your honesty, trustworthiness and fitness as a lawyer.

I’m interested in your response to the criticisms that your conduct in your handling of both the firing of the United States Attorneys and hiring practices at DoJ violated your ethical obligations as a member of the Illinois, Kansas, Missouri and Virginia Bars.

E.M./The Grievance Project

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Thomas W. Hartmann

After summarizing multiples instances in which Thomas W. Hartmann‘s conduct raises the question as to his fitness to practice law, Scott Horton concludes with this comment:

For an attorney to be formally admonished and removed from legal proceedings twice for unprofessional conduct is an extraordinary matter. However, Hartmann is defiant, insisting that his actions are proper. One wonders if the disciplinary authorities of the Connecticut[, Illinois and/or Missouri] bar[s] are following these developments.

While this question is more than appropriate to ask, it can be made moot if and when a grievance is filed against Mr. Hartmann. To do so, simply:

  1. Print, complete and sign the official Complaint Form for Illinois and Missouri (or .pdf);
  2. Print and attach this page to the Complaint Form; and
  3. Mail the complaint to the address noted on the Complaint Form.

Personal Information:

  • Bar: Illinois
    • Full Licensed Name: Thomas W. Hartmann
    • Date of Admission as Lawyer by Illinois Supreme Court: April 29, 2002
    • Registered Business Address:
      DOD General Counsel

      595 Summer St., Suite 300
      Stamford, CT 06901-1407
    • Registered Business Phone: (703) 699-2761
    • Illinois Registration Status: Active and authorized to practice law – Last Registered Year: 2008
    • Malpractice Insurance (Current as of date of registration; consult attorney for further information): In annual registration, attorney reported that he/she does not have malpractice coverage. (Some attorneys, such as judges, government lawyers, and in-house corporate lawyers, may not carry coverage due to the nature of their practice setting.)
  • Bar: Missouri

Bar Information: Illinois

Bar Information: Missouri

While reviewing this matter, it is important to keep in mind that the privilege to practice law imposes duties and responsibilities on each attorney who accepts a license to practice law. These obligations are described in the Preamble to the Illinois Rules of Professional Conduct :

The practice of law is a public trust. Lawyers are the trustees of the system by which citizens resolve disputes among themselves, punish and deter crime, and determine their relative rights and responsibilities toward each other and their government. Lawyers therefore are responsible for the character, competence and integrity of the persons whom they assist in joining their profession; for assuring access to that system through the availability of competent legal counsel; for maintaining public confidence in the system of justice by acting competently and with loyalty to the best interests of their clients; by working to improve that system to meet the challenges of a rapidly changing society; and by defending the integrity of the judicial system against those who would corrupt, abuse or defraud it.

To achieve these ends the practice of law is regulated by the following rules. Violation of these rules is grounds for discipline.

* * *

The quality of the legal profession can be no better than that of its members. Lawyers must exercise good judgment and candor in supporting applicants for membership in the bar.

Lawyers also must assist in the policing of lawyer misconduct. The vigilance of the bar in preventing and, where required, reporting misconduct can be a formidable deterrent to such misconduct, and a key to maintaining public confidence in the integrity of the profession as a whole in the face of the egregious misconduct of a few.

It is also important to bear in mind that although Mr. Hartmann may deny improper motives or conduct, any such denial or protestation must be evaluated based on the totality of the circumstances. As noted in the Illinois Rules of Professional Conduct, for Mr. Hartmann to believe that his conduct was proper, he must have “actually supposed the fact in question to be true” (which belief “may be inferred from circumstances”) and for that belief to be reasonable requires “that the circumstances are such that the belief is reasonable.” Additionally, because “a lawyer of reasonable prudence and competence would ascertain the matter in question” to be improper, Mr. Hartmann reasonably should have known that his conduct was improper.

Accordingly, Mr. Hartmann’s conduct violated the following the following rules of professional conduct:

Illinois Rules of Professional Conduct:

Missouri Rules of Professional Conduct:

Allegation: Mr. Hartmann made extra-judicial statements regarding pending prosecutions in violation of the Illinois and Missouri bar associations.

As noted by Prof. Horton in his post, Mr. Hartmann “appeared on national television brandishing harsh labels and prejudging cases on which he was slated to exercise an appellate review function—raising questions under professional ethics rules which later fueled challenges against him. Specifically, on February 14, 2008, Mr. Hartmann appeared on PBS‘s NewsHour in which he made the following statements, which, even if factually accurate (which they are not), violate the Illinois and Missouri rules of professional conduct:

JIM LEHRER: Next, the 9/11 trials. Ray Suarez has our story.

RAY SUAREZ: The six Guantanamo detainees now set to face trial by military commission all face charges announced on Monday for their direct involvement in planning the September 11th terrorist attacks.

They include: Khalid Sheikh Mohammed, the alleged mastermind of the attacks; Waleed bin Attash, alleged to have selected and trained two of the hijackers; Ramzi Binalshibh; Ali Abdul al-Aziz Ali; and Mustafa Ahmad al-Hawsawi, each charged with coordinating and financing and training for the attacks; and Mohammed al-Qahtani, the so-called 20th hijacker, who was barred entry to the U.S. a month before 9/11.

If convicted, each could face the death penalty.

The legal process was outlined by an act of Congress in 2006. The trials themselves will take place in a specially designed set of courtrooms known as Camp Justice on the U.S. naval base at Guantanamo.

Here to walk us through that process is Brigadier General Thomas Hartmann, the legal adviser to the convening authority for the Office of Military Commissions at the Department of Defense.

General, welcome.

BRIG. GEN. THOMAS HARTMANN, Legal Adviser, U.S. Military Tribunal System: Good evening.

RAY SUAREZ: How will these trials differ from a conventional criminal trial in the United States? Will the defendants be able to examine the evidence against them and directly confront their accusers?

BRIG. GEN. THOMAS HARTMANN: Yes, absolutely. Every piece of evidence that goes before the jury, the finder of fact, will be subject to their review, cross-examination, challenge, objection, just like you would see in an American court or a military court martial. So they have those full rights in the courtroom.

RAY SUAREZ: One aspect that’s gotten a lot of attention and is likely to come up in the trial is the source of that information. There’s a theory in legal circles, “fruit of a poisoned tree.” If information is introduced in court that was obtained by torture, could that end up slowing or even preventing these trials from moving forward?

BRIG. GEN. THOMAS HARTMANN: The trials will be governed by the rules of evidence and the rules of procedures that Congress has put in place under the Military Commission Act that you mentioned. And we will leave it up to the trial counsel and the defense counsel and the judge to make the determinations of what’s admissible in the court.

We’re a country that is governed by the rule of law and not by the rule of men, and we will follow the rule of law in these proceedings. It’s not effective to be able to try these cases in the press or anywhere else. We’ll decide them in the courtroom on Guantanamo.

RAY SUAREZ: So at this point, it’s not clear exactly how evidence that may have been obtained by physical coercion will be treated when we’re actually at trial?

BRIG. GEN. THOMAS HARTMANN: All the evidentiary decisions will be made by the trial counsel and the defense counsel duking it out in the courtroom, and the judge will make that final decision.

RAY SUAREZ: Who’s going to be sitting in judgment on these defendants?

BRIG. GEN. THOMAS HARTMANN: Military judges. Each of the judge advocate generals, the uniformed judge advocate generals, have nominated people, and the chief judge will appoint a particular judge to a case, but there are 12 sitting judges who are available to take the trials. They’re all experienced military judges; they’re all uniform; they’ve got decades of experience.

RAY SUAREZ: As this process is approached, various defense counsel have expressed concerns, misgivings about whether they’re going to be able to examine all the evidence that’s being brought to bear against their clients or whether they’ll be roadblocks, impediments where people will say, “Sorry, you just don’t have the clearance to see this stuff.”

BRIG. GEN. THOMAS HARTMANN: Well, they will — if they need discovery, they have the rights to discovery, reasonable and material evidence, as it’s set forth in the manual for military commissions, very similar to the manual for military court martial.

And they will have the right to seek discovery. The judge will rule if there are any challenges on that discovery, and it will proceed very much like a normal trial.

RAY SUAREZ: You use the word “reasonable.” Who decides what’s reasonable?

BRIG. GEN. THOMAS HARTMANN: The reasonable is an objective standard. And ordinarily in discovery the two trial counsel, the trial counsel and the defense counsel, try to reach a conclusion. And if they cannot, the judge makes the decision of what’s reasonable.

RAY SUAREZ: Have members of the military legal profession raised any concerns about their ability to try this case? Has it been hard to fill all the slots you need to move forward because of misgivings in the uniformed ranks about this process?

BRIG. GEN. THOMAS HARTMANN: I don’t think so. The uniformed ranks are stretched thinly because of the global war on terror and trying to deal with all that.

But we’re getting the resources we need from the judge advocates general from the uniformed services, and we continue to get resources from them as the process expands and more trials are brought, more charges are sworn.

RAY SUAREZ: One of the prominent members of the team, Colonel Steven David, said of the process, when reporters were asking him how to proceed, “You’re asking me to tell you how we’re going to get to a place we’ve never been with a map I don’t have.”

He seemed to be a little unsure about how all this is going to work once it really gets going.

BRIG. GEN. THOMAS HARTMANN: Well, in the defense community, they have today, as we speak, nine uniformed counsel, and they’ll get another one within one day. They have four civilian counsel, and they have three more military counsel in the hopper on the way through the process.

One will come in April, and two more will come in May. And at this point, there are only 12 accused, the six that were accused the other day, and then you had six before that. So there are 12 people. That’s a good ratio of support.

The defense also has analysts, and they will get more analysts. They have interpreters, and they have computer resources. They have places to review classified information. So we’re resourcing them very well.

RAY SUAREZ: Do these defendants, because of the highly charged nature of this case, worldwide audience, the conflict about how exactly to proceed, can they go into court and say, “I want my own legal team, and I don’t want to be tried with these guys because of what we’re all being charged with”?

BRIG. GEN. THOMAS HARTMANN: The chief prosecutor has recommended that these cases, the ones I announced on Monday, be charged jointly and be tried jointly. That decision still needs to be made by Judge Crawford, the convening authority. And even if she should decide to send them to trial jointly, they can challenge that in the courtroom.

And the judge can say, “I’m going to sever these.” You’re either joint or severed, so the judge can decide if he wants to sever them.

And each of them has the right to a detailed military counsel effective on the swearing of the charges on Monday, so that right has kicked in. They haven’t all received one yet.

But they can also get civilian counsel of their own choosing at their own expense. And Hamdan is one of the cases that was tried last week in connection with motions and discovery, and Hamdan had sitting at his defense table at Guantanamo Bay five defense counsel, one military defense counsel, one Department of Defense civilian, two members of a distinguished law firm in the United States, and one professor from Emory University.

And Hamdan on his appeal to the Supreme Court had seven counsel, all of them civilians. So we think that they’re well-represented, the resources are there, and the resources will continue to be there.

RAY SUAREZ: Well, how important is that? Are you very conscious in this process, as we begin it, that the world is watching this, and to the degree that it deviates from the kind of trial someone would be able to demand on United States soil, that there may be questions around the world about how this works?

BRIG. GEN. THOMAS HARTMANN: Very conscious of it. If you study the rights, the rights are amazing that are made available to these accused, the right to remain silent, the right to have — the right to see all the evidence that goes to the finder of fact, the beyond-a-reasonable-doubt standard.

The burden of proof is on the government, presumption of innocence. The presumption of innocence and the burden of proof beyond a reasonable doubt did not even exist at Nuremberg. They get to call witnesses. They get to cross-examine witnesses. They get to call their own witnesses.

If they are found guilty, they get an automatic right of appeal to the Court of Military Commission Review. That doesn’t exist anywhere but in our system that they get an automatic right of appeal. So these rights are tremendous.

We think that they equate very closely to the rights we make available to our own soldiers, sailors, airmen and Marines in the uniformed services. And I think many, many people out there watching will think that they are a national treasure, our soldiers, sailors, airmen and Marines, and to provide the same thing is a reflection of the American standard of justice.

RAY SUAREZ: But you’ve also announced your intention to seek the death penalty in these cases. Does that add a burden for the prosecution that may be difficult to carry, given the rules under which this is moving forward?

If there are any circumstances where people can’t see the sources of evidence, where they can’t find out where information being introduced against them came out, wouldn’t that be mitigation if they appeal their death penalty?

BRIG. GEN. THOMAS HARTMANN: Well, let me take you way back. The prosecutors have recommended that it go forward as a capital case. Judge Crawford, the convening authority, still needs to make that decision as to whether that will be a capital charge.

And even then, even then a jury of at least 12 members, at least 12 members must unanimously agree on the findings and the sentence. And, as I mentioned, they will have access to the discovery and to the extent that they don’t think they’re getting the right discovery, they will bring that to the attention of the judge, and the judge will fix that within the rule of law.

RAY SUAREZ: And the 12 members are all active-duty military?

BRIG. GEN. THOMAS HARTMANN: The 12 members — it’s at least 12 members. It could be more. But if it’s more, it’s still unanimous. It has to be a unanimous decision.

They’re military personnel chosen based upon their age, experience, judicial temperament, and factors of that sort, in terms of sitting in the trial. It’s virtually identical to the process we use in a military court martial practice.

RAY SUAREZ: And very quickly before we go, how soon might we see the first opening arguments?

BRIG. GEN. THOMAS HARTMANN: Opening arguments, I can’t predict. We expect that you will see arraignments probably sometime in the spring, and that’s when the accused is read the charges, announces his rights to counsel, what he wants for counsel, and how he enters a plea.

After that, the case will proceed through discovery, motions, and that will take some time, and then you’ll see opening statements after that.

RAY SUAREZ: General Hartmann, thanks for joining us.

BRIG. GEN. THOMAS HARTMANN: Thank you.

(Emphasis supplied.)

Prior to his appearance on PBS, Mr. Hartmann penned this op-ed that ran in the Los Angeles Times on 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.

Both of his PBS interview and his LA Times op-ed were made in violation of the Illinois and Missouri rules of professional conduct.

Allegation: Contrary to his role as legal advisor to the Pentagon, a purportedly neutral position, Mr. Hartmann failed to retain the required independence from the prosecution, and has been barred from participating, in military war tribunals.

Prof. Horton also identifies additional conduct of Mr. Hartmann that violated the Illinois and Missouri rules of professional conduct, including “accounts of Hartmann’s bullying and intimidation of other lawyers participating in the process circulated[,]” “specific allegations that he was jockeying to have cases publicized and tried “before the elections,” that he refused to resign once “he was banned from involvement in the case” and that he “was inappropriately aggressive in pushing for prosecution of certain cases that he felt had media value.” These general allegations are fully supported in the public record, including but not limited to the following articles:

As reported by William Glaberson in the New York Times :

The former chief military prosecutor for the planned war-crimes trials of Guantánamo detainees said yesterday that he had been pressured by military officials to rely increasingly on classified evidence, which would require that long trial sessions be held behind closed doors rather than in open proceedings.

“Who ever said we had to have open trials?” the former chief prosecutor said a military official, Brig. Gen. Thomas W. Hartmann, told him in September.

The former prosecutor, Col. Morris D. Davis, described the dispute in an interview yesterday. Colonel Davis said it was part of an internal disagreement over whether war-crimes trials at Guantánamo Bay, Cuba, are to be largely public, displaying evidence against terrorism suspects, or largely closed, which could increase criticism of Guantánamo.

Colonel Davis, a career Air Force lawyer, said one of his priorities as chief prosecutor had been to get as much evidence as possible declassified so people around the world could assess the strength of cases against terrorism suspects. But he said two officials told him in September that he was wasting time declassifying evidence and that it was more important to move quickly by filing charges against detainees.

“No matter how perfect the trial is,” Colonel Davis said, “if it’s behind closed doors, it’s going to be viewed as a sham.”

Colonel Davis resigned Oct. 5 after a bitter turf dispute with General Hartmann, who was named legal adviser this summer to Susan J. Crawford, the senior official in the Office of Military Commissions at the Defense Department.

* * *

In the interview yesterday, Colonel Davis read from notes he said he made after a telephone conversation with General Hartmann on Sept. 10. He said the general expressed irritation at the slow pace of prosecutions and made the remarks about conducting trials with closed sessions.

* * *

In August, Colonel Davis filed a formal complaint at the Pentagon claiming that General Hartmann had overstepped his role by asserting control over the prosecution office. This month, Pentagon officials told Colonel Davis that they were backing General Hartmann, and Colonel Davis asked to be reassigned.

In the interview, Colonel Davis said General Hartmann noted twice in September that a legal rule permitted military commission proceedings to be closed when classified evidence was being presented and said, “We’ve got to use it.” He said that on Sept. 21, Ms. Crawford told him she agreed with General Hartmann.

Colonel Davis, who has been assigned to another legal position after two years as the chief military prosecutor for Guantánamo, said he felt it was important to keep trials as open as possible.

He said that while he supported the use of military commissions, “this whole process is under a cloud” because of critics who have asserted that the administration created a legal system for detainees that gives them fewer rights than the country’s civilian justice system. He said the criticism could be mitigated “by keeping it as open and transparent as possible.”

Colonel Davis said he had worked with prosecutors to select evidence that could secure convictions while trying to limit the need to close the Guantánamo trials, which are expected to draw international attention.

And as reported by Jess Bravin at the Wall Street Journal:

WASHINGTON — In March, a plea bargain guaranteed Australian David Hicks, an inmate at the U.S. military prison in Guantanamo Bay, his freedom by year’s end. The deal helped Australian Prime Minister John Howard, a U.S. ally, avoid a bruising domestic controversy.

Now, the former chief prosecutor at the Guantanamo military commission in Cuba for suspected terrorists says in an interview that the Hicks case was the beginning of political interference in the offshore justice system. Col. Morris Davis resigned earlier this month to protest new rules he says will ensure that political officials have similar control over future war-crimes prosecutions.

* * *

Gen. Hemingway’s successor, Brig. Gen. Thomas Hartmann, arrived in July and asserted direct control of the prosecution effort, prompting conflict with Col. Davis over the office’s leadership. Gen. Hartmann is neither a judge nor a prosecutor. He is appointed by the Pentagon general counsel to advise the administrator of the military commission — a position that has no exact analogy in civilian courts.

An internal review ultimately sided with Gen. Hartmann, rejecting Col. Davis’s view that federal law insulated the chief prosecutor from the legal adviser’s direct control. Earlier this month, Deputy Secretary England issued memorandums that essentially put the prosecutions under the control of the Pentagon’s general counsel.

Marc Falkoff, who was the principal lawyer in the habeas representation of seventeen Yemeni men detained by the U.S. military at Guantanamo Bay, confirms Col. Davis’ allegations of the improper politicization of these trials in this op-ed at the Jurist:

Last month, Colonel Morris Davis stepped down as chief prosecutor for the military commissions at Guantánamo, citing political interference with the independence of his office. The resignation was a remarkable development in Guantánamo’s embattled history, illuminating the degree to which politics rather than principle governs our notorious offshore prison.

* * *

We already know, therefore, that the military commissions are a bad idea for those of us who want to see speedy justice at Guantánamo. But with the resignation of Colonel Davis as chief prosecutor, we are now learning that the military commissions – whatever their inherent flaws and virtues – have themselves been corrupted by politics. If Davis’s allegations are to be credited, then the commissions system is being manipulated by political actors in an improper, unethical and potentially illegal manner – a politicization of the Guantánamo justice system that echoes the U.S. Attorneys scandal.

According to Davis, for more than a year Pentagon officials have sought to influence his decisions about “who we will charge, what we will charge, what evidence we will try to introduce, and how we will conduct a prosecution.” * * *

More recently, Davis filed a formal complaint alleging that Brigadier General Thomas Hartmann, the Legal Advisor to the authority overseeing the military commissions process, had pushed him to file cases that would attract more public attention and garner support for the tribunal system, even though such cases would require secretive, closed proceedings. (By Pentagon regulation, the Legal Advisor is supposed to be an impartial administrator of justice, not an arm of the prosecution.)

In September of this year, Davis threatened to resign if anyone tried to intimidate him. He has now done so, stating bluntly that, “as things stand right now, I think it’s a disgrace to call it a military commission – it’s a political commission.”

What makes this all the more alarming is that Colonel Davis is the last person you would expect to stand up as a whistleblower. To be sure, other officers have gone public about abuses in the Guantánamo system. * * * But none of these men had, like Colonel Davis, previously spoken out in support of all things Guantánamo.

For years, Davis has been the Administration’s de facto spokesperson in defense of the military commissions. * * *

And now we have the spectacle of Davis resigning and speaking out about the intimidation and political interference he encountered as Guantánamo’s chief prosecutor. * * *

* * *

For the majority of the prisoners at Guantánamo, the value of Davis’s resignation is that it may finally signal to the American public that politics rather than principle reigns at Guantánamo, and that decisions about the administration of justice at the camp are being made – largely outside of public view and without accountability – by political actors for nakedly political reasons. How else, for example, are we to explain the fact that every European who was dragged to Guantánamo has been returned to his home country, but that nearly ninety percent of the Yemenis who have been detained at the naval base remain there today – even though a number of them have actually been cleared for release by the military?

For more than three years, my colleagues and I have visited with our clients at Guantánamo dozens of times, frequently bringing them “good news” about court victories we have won. To a man, upon hearing our news, our clients have smiled politely and shrugged, pointing out to us that they still have not had their day in court and that they still are not treated in accord with the Geneva Conventions. “You have to understand,” they tell us, “this is all a big game.” More and more, I am starting to think they are right.

Marc Falkoff teaches criminal law and criminal procedure at Northern Illinois University College of Law. Prior to joining the NIU faculty, he was an associate at Covington & Burling, where he was the principal lawyer in the habeas representation of seventeen Yemeni men detained by the U.S. military at Guantanamo Bay. He is the editor of Poems From Guantanamo: The Detainees Speak (University of Iowa Press, 2007).

Col. Morris D. Davis, in his op-ed printed in the Los Angeles Times explains how the Convening Authority, of which Mr. Hartmann was the Legal Advisor, improperly imposed political consideration in the prosecution of these cases:

I was the chief prosecutor for the military commissions at Guantanamo Bay, Cuba, until Oct. 4, the day I concluded that full, fair and open trials were not possible under the current system. I resigned on that day because I felt that the system had become deeply politicized and that I could no longer do my job effectively or responsibly.

In my view — and I think most lawyers would agree — it is absolutely critical to the legitimacy of the military commissions that they be conducted in an atmosphere of honesty and impartiality. Yet the political appointee known as the “convening authority” — a title with no counterpart in civilian courts — was not living up to that obligation.

In a nutshell, the convening authority is supposed to be objective — not predisposed for the prosecution or defense — and gets to make important decisions at various stages in the process. The convening authority decides which charges filed by the prosecution go to trial and which are dismissed, chooses who serves on the jury, decides whether to approve requests for experts and reassesses findings of guilt and sentences, among other things.

Earlier this year, Susan Crawford was appointed by the secretary of Defense to replace Maj. Gen. John Altenburg as the convening authority. Altenburg’s staff had kept its distance from the prosecution to preserve its impartiality. Crawford, on the other hand, had her staff assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases (which began while I was on medical leave), drafting charges against those who were accused and assigning prosecutors to cases, among other things.

How can you direct someone to do something — use specific evidence to bring specific charges against a specific person at a specific time, for instance — and later make an impartial assessment of whether they behaved properly? Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused.

The second reason I resigned is that I believe even the most perfect trial in history will be viewed with skepticism if it is conducted behind closed doors. Telling the world, “Trust me, you would have been impressed if only you could have seen what we did in the courtroom” will not bolster our standing as defenders of justice. Getting evidence through the classification review process to allow its use in open hearings is time-consuming, but it is time well spent.

Crawford, however, thought it unnecessary to wait because the rules permit closed proceedings. There is no doubt that some portions of some trials have to be closed to protect classified information, but that should be the last option after exhausting all reasonable alternatives. Transparency is critical.

* * *

The Military Commissions Act provides a foundation for fair trials, but some changes are clearly necessary. I was confident in full, fair and open trials when Gen. Altenburg was the convening authority and Brig. Gen. Tom Hemingway [as opposed to Mr. Hartmann] was his legal advisor. Collectively, they spent nearly 65 years in active duty, and they were committed to ensuring the integrity of military law. They acted on principle rather than politics.

The first step, if these truly are military commissions and not merely a political smoke screen, is to take control out of the hands of political appointees like Haynes and Crawford [whose Legal Adviser was Mr. Hartmann] and give it back to the military.

* * *

Morris D. Davis is the former chief prosecutor for the Office of Military Commissions. The opinions expressed are his own and do not represent the views of the Department of Defense or the Department of the Air Force.

As reported by William Glaberson, in the New York Times:

GUANTÁNAMO BAY , Cuba — The former chief prosecutor here took the witness stand on Monday on behalf of a detainee and testified that top Pentagon officials had pressured him in deciding which cases to prosecute and what evidence to use.

The prosecutor, Col. Morris D. Davis of the Air Force, testified that Pentagon officials had interfered with his work for political reasons and told him that charges against well-known detainees “could have real strategic political value” and that there could be no acquittals.

His testimony completed one of the more unusual transformations in the contentious history of Guantánamo. Colonel Davis, who is on active duty as a senior Air Force official and was one of the Pentagon’s most vocal advocates of the Guantánamo military commissions, has become one of the most visible critics of the system.

Testifying about his assertions for the first time, Colonel Davis said a senior Pentagon official who oversaw the military commissions, Brig. Gen. Thomas W. Hartmann of the Air Force Reserve, reversed a decision he had made and insisted that prosecutors proceed with evidence derived through waterboarding of detainees and other aggressive interrogation methods that critics call torture.

Called to the stand by a Navy defense lawyer and testifying before a military judge, Colonel Davis said General Hartmann directed him last year to push war crimes cases here quickly. He said the general was trying to give the system legitimacy before a new president took office. He testified that General Hartmann referred to the long difficulties the Pentagon had had in operating the military commissions and said, “If we don’t get some cases going before the election, this thing’s going to implode.”

Spokesmen for the Pentagon and General Hartmann declined to comment on Monday, saying that the questioning was continuing before the military judge. In the past, they have said that they disagreed with some of Colonel Davis’s assertions.

The extraordinary testimony featured Colonel Davis, in uniform and perspiring slightly in an air-conditioned courtroom, being cross-examined by his successor, Col. Lawrence J. Morris of the Army. The two uniformed officers faced each other with natural military politeness, giving way occasionally to a brisk question or stiff response.

The awkward moment of one military officer’s taking on another occurred because lawyers for a detainee facing war crimes charges called Colonel Davis to the stand after he had given news interviews criticizing General Hartmann and the running of the military commissions.

The defense lawyers for the detainee, Salim Ahmed Hamdan, once a driver for Osama bin Laden , said Colonel Davis’s contentions amounted to unlawful influence over the prosecution.

* * *

Mr. Hartmann’s actions as a Pentagon Legal Adviser began to have an affect on the prosecution of the military commission trials. Specifically, Mr. Hartmann was deemed ineligible to participate in the first military commission trial, as reported by Bernard Hibbitts at the Jurist:

[JURIST] A US military judge has ruled that US Air Force Reserve Brig. Gen. Thomas Hartmann [Air Force Link profile], a top Pentagon legal adviser on the Guantanamo military commission trials, is ineligible to participate in the first military commission trial of a detainee because he is too closely associated with the prosecution , the New York Times reported Saturday. The Times said it had a copy of the decision by Navy Capt. Keith Allred, although it had not been publicly released. The paper quoted Allred as concluding that “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”. Hartmann is legal adviser to Susan J. Crawford, the Convening Authority [backgrounder] for the military commissions. * * * (Emphasis supplied.)

* * *

As reported by William Glaberson, in the New York Times :

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.

* * *

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.

* * *

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.

* * *

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.”

* * *

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.

* * *

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.

(Emphasis supplied.)

Mr. Hartmann has now not only been barred from fulfilling his function as Legal Advisor in the Hamdan prosecution. As Prof. Horton notes:

Now a second military judge, Col. Steve Henley, has ordered Hartmann’s removal from the proceedings, [the prosecution of Afghan detainee Mohammed Jawad] sustaining the accusations raised against him. In an order handed down on Friday, Hartmann was banned from participation in the case, and the defense counsel were advised that they could make submissions in their quest for access to exculpatory evidence directly to Crawford, bypassing Hartmann. (Emphasis supplied.)

These general allegations are fully supported in the public record, including this report by Jane Sutton for Reuters:

* * *

In the case of alleged Sept. 11 mastermind Khalid Sheikh Mohammed and four other prisoners who could face execution if convicted, the military defense lawyers said the charges were tainted by meddling and “overreaching” on the part of Air Force Brig. Gen. Thomas Hartmann.

Hartmann was assigned to provide impartial legal advice to the Pentagon appointee overseeing the Guantanamo trials.

But the former chief prosecutor of the tribunals testified last month that Hartmann essentially took over the prosecution team, pushing it to use evidence obtained through coercion and demanding “sexy” cases that would pique the interest of the American public.

Military defense lawyers asked the tribunals’ chief judge, Marine Col. Ralph Kohlmann, to dismiss the charges on grounds that Hartmann was so heavily involved in drafting them that he “failed to retain the required independence.”

“When the government seeks the death penalty, it must not reduce legal procedures to mere formalities. The integrity of the system must be upheld, regardless of the nature of the crimes charged or identity of the accused,” they said in the documents. “The accused are entitled to due process and a fair trial”

* * *

The judge in the Hamdan case had already barred Hartmann from further involvement in those proceedings.

* * *

Carol Rosenberg of the Miami Herald also reports on this ruling:

GUANTANAMO BAY NAVY BASE, Cuba — One general testified against another at the war court Wednesday, describing a Pentagon official fast-tracking trials here as “abusive, bullying, unprofessional.”

Moreover, Army Brig. Gen. Gregory Zanetti, deputy prison camps commander, in testimony described the approach his counterpart, Air Force Brig. Gen. Thomas Hartmann, employed earlier this year this way:

“Spray and pray. Charge everybody. Let’s go. Speed, speed, speed.”

The colorful testimony — evoking battlefield language — came in pre-trial hearings in the case of Afghan detainee Mohammed Jawad, accused of wounding two U.S. troops by throwing a grenade in a bazaar in Kabul.

Hartmann is the legal advisor overseeing the first U.S. war crimes tribunals since World War II. Jawad’s attorney, Air Force Reserves Maj. David Frakt, wants the Afghan’s charges dismissed on grounds that Hartmann exerted ”unlawful influence” on the trials from his perch at the Pentagon.

Frakt alleges in his motion that Hartmann usurped the role of a prosecutor — rather than act dispassionately — and pushed to get Jawad charged because the case involved battlefield bloodshed.

In June, Hartmann defended his ”intense and direct” management style in testimony, saying he had pressured for speed to kick-start sluggish commissions, not for political reasons.

What was unusual about Wednesday’s testimony was that, while subordinates have described Hartmann’s style as abusive ”nano-management,” this was the first time a general officer of equal rank gave the similar testimony.

In telephone calls and teleconferences from the Pentagon, Zanetti said, Hartmann’s demeanor ”as an attorney from a thousand miles away” was “abusive, bullying and unprofessional. . . pretty much across the board.”

The Pentagon’s chief war crimes prosecutor at the time, now retired Air Force Col. Morris Davis, resigned to protest Hartmann’s behavior.

Davis testified Wednesday at a hearing in the case of another war crimes defendant captured in Afghanistan as a teen, Canadian Omar Khadr. The Jawad prosecution ”went from the freezer to the frying pan, thanks to General Hartmann,” Davis told Khadr’s lawyer.

* * *

Zanetti described struggling with Hartmann over who would run U.S. forces working on trial logistics.

To try to work with Hartmann, who like Zanetti has a one-star on his uniform, the Army brigadier said he sought to discuss the concept of ”command unity” with the Air Force brigadier.

”As a principle, it’s really been around since Alexander The Great. Most military people understand this one,” Zanetti said, with a laugh. “General Hartmann really wanted to run things.”

* * *

(Emphasis supplied.)

Finally, Mike Melia of the Associated Press reports these details:

* * *

The former chief prosecutor, Air Force Col. Morris Davis, testified that Hartmann pushed for Jawad to be charged because the American public would be gripped by the details of the case — a grenade attack on two U.S. soldiers and their interpreter in Afghanistan.

“The guy who threw the grenade was always at the top of the list,” Davis said.

* * *

The judge also ruled that Frakt can submit exculpatory evidence to the tribunals’ top official, Susan Crawford, for her to review whether the charges against Jawad are warranted — without input from Hartmann.

“For the first time, she will be presented with a balanced portrait of the facts and circumstances in this case,” Frakt said.

Hartmann supervises the chief prosecutor at Guantanamo and has extensive powers over the tribunal system. He testified Wednesday that he believed he was doing his job properly and said he has not offered to resign.

* * *

Based on these allegations, Mr. Hartmann’s conduct, as described above, violates the Illinois and Missouri rules of professional conduct.

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Text of the Virginia and Missouri Rules of Professional Conduct violated by Mr. Hartmann.