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Adviser Barred From Detainee Case Over Bias Concerns

By Josh White
Washington Post Staff Writer
Sunday, May 11, 2008

The Pentagon's top legal adviser in the Office of Military Commissions was disqualified late last week from participating in the prosecution of a detainee at Guantanamo Bay, Cuba, by a Navy officer who ruled that the adviser exerted improper influence over a team of prosecutors and may have compromised the case's fairness.

Capt. Keith J. Allred, who is presiding over hearings in preparation for the military's trial of an alleged driver for Osama bin Laden, determined that Air Force Brig. Gen. Thomas W. Hartmann was too closely tied to prosecutors. He is supposed to be a neutral adviser to the official directing the commissions.

In a 13-page ruling issued Friday, Allred found that Hartmann pressured prosecutors to present certain cases because they were "sexy," suggesting that factors other than a case's merits "were at play." He also found that Hartmann appeared to be pushing for prosecutors to use evidence derived by coercion, something Allred found to be "an effort to influence the professional judgment" of the prosecutors.

Cmdr. J.D. Gordon, a Pentagon spokesman, said defense officials are reviewing the ruling and cannot yet comment on it. The trial against the detainee, Salim Ahmed Hamdan, was expected to begin next month.

Hartmann's removal from the case could mean that top Defense Department officials will need to appoint a new legal adviser to the commission process in Hamdan's case and might also need to consider doing so in other cases in which Hartmann has been involved, including pending military trials against six alleged Sept. 11 co-conspirators.

Hartmann announced the charges against those men, including alleged Sept. 11 mastermind Khalid Sheik Mohammed, and has been supervising the prosecution of those cases. Arraignments are expected within the next few months.

"The Commission is not persuaded, beyond a reasonable doubt, that the Legal Advisor to the Convening Authority retains the required independence from the prosecution function to provide fair and objective legal advice to the Convening Authority," Allred wrote, according to a copy of the ruling. The ruling was first reported by the New York Times yesterday.

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