Military Commissions

2/14 Hearing #2: All The Convening Authority’s Men (and Women)

By Raffaela Wakeman, Wells Bennett
Thursday, February 14, 2013, 10:24 AM
The Convening Authority, Ret. Adm. Bruce MacDonald, is sworn.
CDR Walter Ruiz, lawyer for accused Mustafa al-Hawsawi, rises to question him.  It will be a quick-ish examination, evidently, as Judge Pohl desires to finish by noon.  But, as the court mentioned yesterday, there will be an opportunity to recall the witness as needed.  Then there’s some back-and-forth about logistics: how will the parties, court and witness refer to this or that exhibit during our discussion?  And did Cheryl Bormann get a copy of MacDonald-relevant materials provided to Ruiz? Will the court consider exhibits attached to the key motions here, AE08, AE31, and AE47, maybe others?  A short time passes on these issues, and Ruiz begins.
MacDonald was appointed by then-Secretary of Defense Robert Gates, after MacDonald retired from the Navy---where he was the Judge Advocate General---in 2009. Jeh Johnson, the Department’s General Counsel at the time, rang and asked the witness to serve as Convening Authority; the two men had worked together before, during MacDonald’s final year of active duty. Prior to being approached by Mr. Johnson (and as the Navy’s JAG), MacDonald had testified before four congressional committees on the MCA 2006 and the Supreme Court’s Hamdan decision.  (MacDonald testified sometimes in his official capacity; other times, he expressed only his personal opinion.)  He was “disgusted,” he says, with President Bush’s original military order creating military commissions, though MacDonald supported commissions when properly constituted. The sticking point for him: the need to exclude statements procured by torture and abuse.  Apart from Johnson, MacDonald spoke to some other officials about his appointment---including the Deputy Secretary of Defense.  It was a meet and greet, says the witness.

Prompted by Ruiz, the witness talks about his official duties: referral of charges sworn by the prosecutor, approval of pretrial agreements, consideration of mitigation investigations, post-trial clemency, personnel resourcing for counsel, and so on.  MacDonald may or may not have approved agreements containing cooperation clauses (regarding an accused’s future testimony against other detainees facing commission prosecution)---but that’s part of his work.  (Ruiz has Majid Khan in mind.)  The lawyer moves to MacDonald’s legal powers, and the frequency of his travels to GTMO---where the witness meets, among other things, with JTF officials and the JTF SJA.  He’s based in Washington State, but works one week per month in Washington, D.C.  MacDonald acknowledges that his legal advisor supervises the prosecution. At the time of this case’s referral, Ruiz continues, the Chief Prosecutor (CAPT John Murphy) was a Navy officer who, the lawyer seems to say, could have outranked the Convening Authority.  (Could Murphy have unlawfully influenced his inferior officer, MacDonald?)  The witness corrects Ruiz’s facts: Brig. Gen. Martins, he says, and not Murphy, was the lead prosecutor at the time of the referral.

More on personnel, including the Convening Authority’s legal advisor.  The latter signs on MacDonald’s behalf, for example, in responding to resource requests from the defense.  There’s also the amicus brief submitted by the deputy legal advisor, in Al-Nashiri, regarding ex parte and other procedures.  MacDonald agreed with the arguments advanced therein, too, he adds.  What about an email sent from MacDonald’s office, regarding a proposed protective order governing written communications?  He doesn’t remember the message, but does remember wanting to withdraw the order.  Ruiz mentions employees who help to process clearances for defense experts. Those folks monitor investigations and adjudications, and keep defense counsel updated about such things, right?  Yes, MacDonald says.  Other subordinates likewise serve as liaisons for requests for translators.  (The court asks Ruiz not to review the Convening Authority’s human resources arrangements in exquisite detail; the lawyer promises to stick to the relevant stuff.)  Around the summer of 2011, MacDonald had wanted more engagement between his people and clearance personnel, he says.  The concern was poor tracking of clearance applications.

What about forwarding and referral of charges?  The rules for these aren’t in front of MacDonald now, but Ruiz cites them.  The lawyer wants a moment, which the court gives to him (and thus to all of us).  We’re in a quick recess.