Importantly, LTC Vandeveld highlights one of the key issues with the military commissions specifically, and counterterrorism prosecutions generally— the need to protect intelligence assets. The tension between the interests of law enforcement and intelligence are extremely difficult to resolve. This problem is one of the justifications offered by national security court proponents (and here) it’s also an issue I discuss here. LTC Vandeveld addresses in his statement this tension and how it plays out in discovery disclosures:
From Paragraph 4: “I have divulged…those items of discovery that in my professional judgment the Rules for Professional Conduct, the Military Commissions Act, and the Manual for Military Commissions (MMC) have required me to relinquish, consistent with my ethical obligations as a prosecutor…Where I was unable to provide him with evidence that he requested, I attempted to give him an explanation for why I could not provide the evidence. In some cases, that has meant acknowledging that we have been unable to locate such evidence despite extensive searches. In other cases, that has meant identifying certain agencies, offices, individuals, or procedures which were preventing the disclosure.”
From Paragraph 6: “…discovery in even the simplest of cases is incomplete or unreliable. To take the Jawad case as only one example – a case where no intelligence agency had any significant involvement — I discovered just yesterday that something as basic as agents’ interrogation notes had been entered into a database, to which I do not have personal access, on or about 11 August 2008. These and other examples too legion to list, are not only appalling, they deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct.”
From Paragraph 10: “…I want to emphasize that the efforts of certain intelligence agencies to facilitate this process have been nothing short of herculean. Nonetheless, there is an innate tension between intelligence equities and a prosecutor’s obligation to relinquish information to the defense. In my view, evidence we have an obligation as prosecutors and officers of the court has not been made available to the defense. Potentially exculpatory evidence has not been provided...”
Second, LTC Vandeveld highlights the structural issues of command influence which still exist in the military commissions. On August 15th I pointed out here and at Opinio Juris that the reprisals against Colonel Davis would have a chilling effect on other trial counsel. Specifically, I argued that allowing political officials to prepare fitness reports and make decisions regarding service medals has the same potential for influence that allowing them to directly make trial decisions does because both compel officers to act in accordance with the wishes of their political superiors instead of the interests of justice. So long as trial counsel fear career impacting reprisals, they will not be free to make independent decisions regarding their trial strategy, the sufficiency of evidence against individual detainees, and the impropriety of using evidence derived from coercion or even torture.
This prediction seems to have been borne out in LTC Vandeveld’s statement:
Paragraph 12: “I have previously declined to share the foregoing information with the defense because I believe I have some justifiable concern of retaliation if I am seen as being too cooperative with the defense and because I had hoped to change and improve things from within OMC-P. Other officers who have displeased the powers that be have been subject to treatment that in my opinion was retaliatory in nature. For example, LTC Will Britt, one ofthe most solid soldiers I’ve ever served with, received what was described to me as a mediocre Officer Evaluation Report, and stated at his farewell gathering that the Defense Meritorious Service Medal he received (something given as a matter of course to other departing officers) had been obtained only through extraordinary measures taken by the instant chain of command…” (emphasis mine).
In short, it seems that the dual problems of intelligence protection and undue influence continue to plague the military commissions.
Greg McNeal is a professor and national security specialist focusing on the institutions and challenges associated with global security, with substantive expertise in national security law and policy, transnational crime, global policy studies, and international affairs.
He teaches at Pepperdine University's School of Law and School of Public Policy.
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