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Another JAG Officer Butts Heads With Administration

One of the most remarkable, and most ignored, stories of the last 12 years has been the astonishing number of military officers in the JAG corps that have stood up against the military tribunals at Gitmo, first under Bush and now under Obama’s modified system. No fewer than five highly decorated officers resigned their commissions in protest of those kangaroo courts under Bush and now a Brigadier General is pushing back against abuses in the Obama tribunals.

UNTIL recently, no uniformed lawyer was viewed by the Obama administration with greater favor than Brig. Gen. Mark S. Martins, the scholarly chief prosecutor of the military commissions system who is leading the case against Khalid Shaikh Mohammed and four other Guantánamo Bay detainees accused of aiding the terrorist attacks of Sept. 11, 2001.

A Rhodes Scholar who graduated first in his class at West Point and earned a Harvard law degree alongside a young Barack Obama, General Martins served for five years in Iraq and Afghanistan, helped review detainee policies for President Obama in 2009, and was handpicked to reboot commissions in the hope that his image and conduct would persuade the world to respect the outcome of the Sept. 11 case — prosecutors are seeking death sentences — as legitimate.

But next week, when General Martins returns to public view at a pretrial hearing in the Sept. 11 case, he may appear to have gone rogue. He has engaged in an increasingly public dispute with the administration centered on an uncomfortable question he is refusing to drop: is it valid for the United States to use tribunals to charge idiosyncratic American offenses like “conspiracy,” even though they are not recognized as war crimes under international law?…

The current dispute traces back to an appeals court ruling in October that vacated a tribunal’s verdict in 2008 against an Al Qaeda driver because his offense, “material support for terrorism,” was not a recognized international war crime at the time of his actions. The judges rejected the Justice Department’s argument that the charge was nevertheless valid under an American “common law of war” and because Congress had listed the crime as an offense for the tribunals in a 2006 statute.

The ruling raised the question of what to do about other cases with the same defect, including the appeal of a convicted Al Qaeda propagandist whose charges included “conspiracy,” which is also not an international war crime but was sometimes charged by tribunals in American history, including in cases from World War II and the Civil War.

General Martins pushed to abandon the propagandist’s conviction and scale back the charges that are triable in a military commission, contending that pressing forward with failed arguments would delegitimize the system and cast a distracting cloud over the Sept. 11 case. But Attorney General Eric H. Holder Jr. decided to go forward with defending the propagandist’s conviction and the validity of conspiracy as a tribunal charge, and the schism opened.

General Martins refused to sign the Justice Department brief in the propagandist case and announced he would seek to drop conspiracy from the list of charges in the Sept. 11 case and focus on “legally sustainable” ones, like the classic war crime: attacking civilians. But the Pentagon official who oversees tribunals refused to withdraw the conspiracy charge, citing the Justice Department. General Martins responded that his prosecutors would not argue against a defense motion asking a judge to scuttle it.

This is going to be very interesting to watch. And the whole thing reminds us of the bravery of Darrel Vandeveld, Morris Davis, Robert Preston, John Carr, Fred Borch and Carrie Wolf, as well as Stephen Abraham, who wasn’t a prosecutor but worked on the tribunals and quit in protest of the manifest injustice of the proceedings. The fact that so many of these JAG officers have taken such a shocking step should be a huge wake up call.

Comments

  1. says

    JAGs know, better than most, the kind of rock and hard place they are between: US and international law holds them personally responsible if they follow through on an order they know to be illegal. Looking to the precedent of Nuremburg — a precedent set by the United States, mind you — “just following orders” is not a defense.

  2. sundoga says

    Actually, following a direct order generally was accepted as a defence, as they noted that enlisted men in the military cannot actually refuse an order lawfully – they can question an order’s legality, but if confirmed, they must obey it. The responsibility for the action then falls upon the person who gave those orders. Officers, however, were held to a higher standard.
    My main problem with these tribunals is that they go directly against all American tradition of jurisprudence. Since the tried are not members of our military, I cannot acept that our military has any jurisdiction over their crimes or supposed crimes – any such accusations of unlawful acts should be resolved before a jury of their peers.

  3. baal says

    I’m more than a little impressed with these JAG officers. Bucking command may well cost them promotions, a military career and limit future jobs outside the military. That’s well beyond the usual taking a stand.

  4. abb3w says

    There’s limited scope for further promotion at the Brigadier level.

    And outside the military, there are law firms that value a lawyer who respects the limits of the law’s scope.

  5. Michael Heath says

    The media harms the country and these JAG officers when it fails to get the President and relevant leaders in Congress on the record in response to these resignations – repeatedly on the record, with lots of follow-up inquiries.

  6. Draken says

    The lesson the authorities will pick up from this is that, in future cases, terrorism suspects should never be brought to trial. When they’re not shot on the spot, they have to be flown to a secret offshore CIA (or “friendly” service) prison where they can be tortured to death without anyone even hearing their name.

    Think I’m too cynical?

  7. caseloweraz says

    What puzzles me about this case is why the AG and others in charge insist on including the conspiracy charge. Surely they have enough on KSM without it — including that he ordered the murder of Daniel Pearl, plotted Operation Bojinka with Ramzi Usef, and was the architect of the 9/11 WTC attacks.

    But then, this too continues the Bush administration pattern of clinging to charges shown to be patently false — as in the case of an alleged suicide bomber who was still alive.

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