The prickly, controversial Legal Advisor to the Convening Authority, Brig. Gen. Hartmann, is in the news again.
According to a story today in the Miami Herald, military commissions judge Colonel Patrick J. Parrish barred Hartmann from acting as the legal advisor in the case of United States v. Omar Khadr. The Herald reports that Colonel Parrish found that Hartmann appeared to have lost his neutrality and that there is a perception that he favors the prosecution.
This is the third military commissions’ judge, in as many cases, to find that Hartmann has abused his role as the Legal Advisor. Hartmann was previously slapped down by two separate judges in the Hamdan case and the Jawad case.
It seems to me that the trend of judges slapping Hartmann down will continue, and for good reason. Judge Keith Allred, the judge in the Hamdan case, held a hearing about Hartmann’s behavior, and, as a result of that hearing, issued devastating findings of fact and conclusions of law against Hartmann. You can’t ignore the record.
It is quite possible that every case that Hartmann touches will create a big fat hanging curve ball of an appellate issue. If that is true, and many think that it is, then what value is there in keeping him in the position as Legal Advisor?
In the past (NPR’s Diane Rehm show on July 22, 2008) I have called for Hartmann to be thanked and excused – – -fired – – from his present position. He is a legal liability, a burden on the commissions process itself. I still believe that he should be relieved of his duties.
As an alternative to firing Hartmann, they could bi-furcate the role of the Legal Advisor, since the Legal Advisor wears two hats. Hartmann could wear one hat; the one he has most closely associated himself with—that of energizing, educating, and working closely with the Chief Prosecutor (but not stepping on the independence of the Chief Prosecutor, or micromanaging the prosecution’s efforts). The other hat should go to the new co-Legal Advisor, who would dispense independent legal advice to the Convening Authority. It’s not perfect, but it might work.