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.