Thomas J. Fiscus, 14th Judge Advocate General United States Air Force
3. Protected Communications Concerning the Military Commission Process.
a. Protected Communications Regarding Military Commissions. I made oral and written protected communications to the DOD GC and AF GC during Nov 2001 – April 2002, which asserted the process created to prosecute detainees at Guantanamo Bay, was inadequate by nearly every legal standard, including that established after World War II. I repeatedly advised both DOD GC and AF GC that the American people and the international community would not accept prosecutions that appeared to be patently unfair by American standards of due process. This advice and advocacy was interpreted as disloyal and disruptive. A Military Commission process that reflected the Administration’s view that the process required only a semblance of due process was implemented over the objections of me and the other service JAGs. The Supreme Court recently declared illegal the Commission process implemented over the objection of me and the other JAGs. (U.S. v Hamdan) To this day, the Administration asserts that the detainees have no rights.
b. Protected Communications Regarding Military Commission Prosecution Staff. Based on information I received from Majors John Carr and Rob Preston of mismanagement and failure of leadership of the prosecution staff by Colonel Fred Borch, USA, I suggested to Brigadier General Tom Hemingway, Staff Judge Advocate to the Military Commissions Appointing Authority, that Colonel Borch needed to devote more time to managing the prosecution function. When I learned from Majors Carr and Preston that my suggestion had not solved the systemic problems in the Prosecution Office, I made a personal visit to the Military Commission Prosecution staff. That visit revealed a completely dysfunctional operation. I immediately made a protected communication to DOD GC William J. Haynes that the Military Commissions Prosecution staff was misleading the DOD senior leadership about its readiness to prosecute detainees at Guantanamo. I also made a protected communication to Mr. Haynes of allegations made to that effect by Majors Carr and Preston. Mr. Haynes, who had a vested interest in the Military Commission process, regarded my effort to seek integrity in the process and warn the DOD leadership of the potential for failure of the prosecution function as disloyal and disruptive. Mr. Haynes felt forced by me to direct an inquiry into the workings of the Military Commission Prosecution staff, which eventually resulted in the replacement of Colonel Borch. To date, no prosecution of a detainee has ever occurred and likely never will.
Factors Demonstrating Violation of the MWPA
Following the attacks of 11 Sep 2001, I was part of the DOD GC oversight group that was charged with implementing a Presidential Executive Order (E.O.) prescribing the creation of military commissions to prosecute those found to have engaged in terrorist acts against the United States. The E.O. had been largely lifted wholesale from that issued by the President immediately after World War II, before the creation of the Uniform Code of Military Justice. The E.O. posited an antiquated and legally unacceptable system by modern standards. In fact, the military lawyers found themselves trying to work around the E.O. to design a military commission process that could handle allegations of crimes committed by those detained at Guantanamo Bay with some semblance of due process. From the beginning of the process, it was clear that the advice of military lawyers was not desired or respected. I found myself constantly on the defensive justifying why the detainees should be granted the rights that other prisoners of war received under the Geneva Conventions. I often pointed out that if the detainees were not considered prisoners of war and hence eligible for the protections of the Geneva Conventions, then they had to be criminals subject to international and domestic criminal law, with a right to habeas corpus and trial, legal counsel, etc. It was only with the greatest effort that the military lawyers were able to convince the DOD civilian lawyers that in order to have a credible process, it would have to be one that reflected American values of justice, else we would appear to be hypocrites domestically and internationally.
I want it understood that I accepted the idea of military commissions, as there was ample precedent for them, but in my view, the Administration position on the rules to be applied to them was clearly outside the law. I unstintingly supported the Commission process by nominating some of my very best judge advocates for positions on both the prosecution staff and the defense staff. All those I appointed acquitted themselves with distinction, especially Colonel Will Gunn and Lt Col Sharon Shafer on the defense side and Majors John Carr and Rob Preston on the prosecution side. Colonel Craig Smith and Mr. James Russell worked diligently to help create a process that included at least minimal indicia of due process. We were nonetheless unsuccessful in convincing the DOD leadership to create a legally viable military commission process.
Despite my support for the Commissions, in December 2003, I became convinced that the actions of Colonel Fred Borch, Chief Prosecutor, were taking the commission process into sure embarrassment for the United States. Based on information I received from Majors Carr and Preston, I was uneasy about the statements of Colonel Borch that charges were about to be pressed against several detainees and that trials by military commissions would soon follow. I completely trusted the judgment of Majors Carr and Preston. In their view, there was no possibility of prosecution based on the totally inadequate information available to present a case. They were convinced that Colonel Borch had lost touch with the process and was misleading the DOD leadership about the Prosecution staff’s readiness to present cases. Based on my discussions with them, I asked General Hemingway to suggest to Colonel Borch that he spend less time at the Pentagon briefing the DOD staff and more time verifying the reports of his staff of progress toward prosecution of actual cases.
After several weeks, Majors Carr and Preston came back to me saying that they were now considered non-team players because they raised issues about the adequacy of the prosecution evidence, which they clearly saw as lacking in substance. In order to see for myself, my deputy and I visited the Prosecution and Defense staffs at their offices in Crystal City. The Prosecution staff gave us a briefing on the cases most ready to prosecute. After hearing the briefing, I was dismayed. It was clear that the Prosecution staff was in serious denial over the lack of information suitable for presenting a case and further had rationalized around the almost total lack of inter agency cooperation, thus making actual prosecution nearly impossible. For his part, Colonel Borch referred to my deputy and me as “spies” upon our departure. He made clear that the other prosecution staff members should regard Majors Carr and Preston as untrustworthy. Following my visit to the Prosecution staff, I briefed DOD GC Haynes and Mr. Dan Dell’Orto that there were serious, probably fatal, flaws in the Commission Prosecution staff’s approach and that I was concerned that SECDEF and the President might be getting misinformation about the readiness of the Commission staff to prosecute any detainees. This assessment was greeted with an icy agreement to “look into it.” That did not happen.
On 15 March 2004, Majors Carr and Preston authored an email to Colonel Borch outlining their concerns about the prosecution effort (Exhibit 13). Colonel Borch’s overreaction to their concerns, broadcast to the entire prosecution staff, was presented to me by Carr and Preston shortly after it was received, on 15 March 2004. Sensing that, if released to the media, the email exchange would be New York Times and Washington Post front page news, I immediately went to see AF GC Walker and DOD GC Haynes to present them with copies of the email exchange so that both would be aware of the issue. Mr. Haynes reaction surprised me. Instead of appreciating the effort to keep him informed, he appeared to blame me for the problem. He was not happy. He indicated that he wanted prosecutions to go forward and did not want (me) to disrupt the process. He insisted that I temporarily detail Major Carr to his office, no doubt to get one “disruptive” influence out of the prosecution office. I had clearly gained his enmity by bringing this problem to his level. The next day, following a meeting among Mr. Haynes, Mr. Dell’Orto, myself, Maj Gen Tom Romig, Admiral Mike Lohr, Colonel Al Droneberger, and a Marine representative whose name I do not recall, he reluctantly determined that the allegations of Major Carr and Major Preston could not be ignored and directed an inquiry. In order to protect the two officers, I requested that Majors Carr and Preston be returned to the AF for reassignment, with their permission. My request was later granted and I reassigned them to AF judge advocate duties and advised Mr. Haynes that I would not be nominating anyone to replace them, given the climate that then existed in the Prosecution staff toward AF personnel. When the inquiry report came back, it was clear that it had been significantly edited to characterize the situation as a personality conflict among high powered prosecutors. Nonetheless, it was determined that Colonel Borch was due to be relieved for a new assignment. Shortly thereafter he was moved to the Army JAG School as its historian. He clearly saw himself as being fired. Mr. Haynes clearly saw me as the architect of a setback for the effort to prosecute the detainees.