Amid a controversy that has been brewing for some time, lawyers for Guantanamo (GITMO) guest and former Osama bin Laden bodyguard and chauffeur Salim Hamdan have called for the case against their client to be dismissed. The reason: “Unlawful command influence” over commission defense and prosecution attorneys.
The latest motion cites, among other things, a September 2006 meeting that GITMO legal types had with Deputy Defense Secretary Gordon England who reportedly stated, “We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election.”
Unlawful command influence? Maybe not, or so we concluded after consulting with legal sources on both sides. Although unlawful command influence is always a concern in military justice, according to our most impartial source, the example cited by the Hamdan team might simply amount to prosecutorial discretion. He reminded us that this often happens, “try the high-profile cases first.” Although there is a right to a speedy trial (yes, the Hamdan case has dragged on for years), there is “no right to be tried in a certain order.” A district attorney will move up high-profile cases prior to an election. (Anyone seen “Law and Order” lately?)
Let’s be honest: Few care about what happens to the GITMO guys. That said, the implications for the military justice system cannot be ignored. Is political influence undermining any standard of impartiality and, well, justice? The very public and prolific Air Force Col. Morris “Mo” D. Davis resigned as the commissions’ chief prosecutor because of this issue and has published a number of pieces slaying his former employers at DoD. (Given his passion, we are surprised he has not taken out a full-page ad in The New York Times or hired a bi-plane to tow his message across the skies above Washington, D.C.) If Davis and the Hamdan defense team are right, just toss out that “J” word and remove Lady Justice’s blindfold. Might as well burn the Uniform Code of Military Justice (there’s that “J” word again) while you’re at it, too. Clearly, this is a matter to be reviewed further by the competent, the knowledgeable, and the impartial.
Back to Hamdan. While the defense has the advantage of pretrial publicity, this is not a luxury afforded to the prosecution. If we were making the books on this one, we’d lay odds that this latest Hamdan tactic is another attempt to get the prosecution to toss in the towel and deal on this low-value man from Yemen.