In the clearest sign yet that the Obama administration is re-energizing tribunals for captives at a Guantanamo it wants closed, the Pentagon this week installed a retired three-star admiral with national security and international law experience to run the war court.
The appointment also comes as Congress is still resisting a White House plan to hold military trials in Illinois, and while the administration is reviewing Attorney General Eric Holder’s decision to hold the Sept. 11 mass murder trial in Manhattan.
Retired Vice Adm. Bruce MacDonald replaces Susan Crawford as the war court gatekeeper or Convening Authority for Military Commissions. Crawford, a Bush-era appointee, decided which cases could be tried, which experts could get government funds to help defend suspected terrorists and which captive’s treatment amounted to torture.
MacDonald’s last job in the military was as the Navy’s top lawyer. He had repeatedly testified at Congress as a bullish backer of the at-times controversial tribunal system.
Retired Navy Lt. Cmdr. Charlie Swift, who took the war crimes case of Osama bin Laden’s driver to the U.S. Supreme Court, said the appointment signals the new White House’s continued commitment to military trials.
“He holds a master’s in international law from Harvard. He’s experienced in National Security matters. He was the Navy JAG corps solve-the-problem guy,” he said. “If it’s high profile, difficult and needs a solution, one generally calls Bruce MacDonald.”
MacDonald arrives at a key military commission moment: As the White House is deciding whether to reverse Holder’s decision in November to bring alleged 9/11 mastermind Khalid Sheik Mohammed and four alleged co-conspirators to New York for civilian trial. They are now at Guantánamo in a compound for former CIA prisoners.
Given MacDonald’s National Security experience, Swift said, “his appointment is absolutely consistent with persistent reports that KSM is going back to commissions. He’s the type of guy one would trust with this mission.”
MacDonald, a Naval officer since 1978, became the Navy’s Judge Advocate General in 2006, a post that earned him a prestigious third star.
He got his law law degree in 1987 from the California Western School of Law, according to his Pentagon biography, and has both defended and prosecuted sailors.
He retired in August, a month after he testified at the Senate of his concerns that not enough staff or funds were made available to defense lawyers. He reported to work at the Defense Department Monday as “director” of the Office of Military Commissions. Secretary of Defense Robert Gates announced his appointment Thursday.
The admiral also arrives just weeks before suppression hearings at Guantánamo in one of its most controversial prosecutions — the case of Canadian captive Omar Khadr, accused of throwing a grenade, at age 15, that killed a U.S. soldier in a July 2002 firefight in Afghanistan.
Critics call it the West’s first prosecution of a “child soldier” and say the boy should have been rehabilitated, not jailed at Guantánamo where he has grown into manhood.
The war crimes court has been dark all year, and is due to gavel back into session in April — three months past President Barack Obama’s missed deadline for emptying the prison camps. The U.S. this week freed five prisoners to resettlement in Georgia and Switzerland, leaving the prison camps census at 183 — about a dozen facing war crimes charges.
Unlike MacDonald, Crawford never served in the military but spent years as a civilian Pentagon lawyer — starting with her 1989 appointment as inspector general when Dick Cheney was defense secretary.
She gave only one interview as convening authority — to veteran Washington Post journalist Bob Woodward. In it, she revealed that a one-time suspected 9/11 co-conspirator was so profoundly tortured at Guantanamo that he could never face trial, even at a war court designed to accommodate battlefield evidence.
“His treatment met the legal definition of torture,” she said of Saudi Mohammed Qahtani in a January 2009 interview that sent shock waves through a Pentagon bureaucracy that had consistently maintained that the prison camps in southeast Cuba were humane, safe and transparent.
Qahtani was interrogated in isolation — sometimes for up to 20 hours at a time — across a 50-day period from November 2002 to January 2003, menaced with dogs, forced to wear a bra and left naked. Crawford retired in January and quietly left.
In 2006, as the Navy’s top lawyer, MacDonald told South Carolina Republican Sen. Lindsay Graham, an architect of the commission process, that he preferred prosecutions by military commissions for suspected terrorists captured on the battlefield.
“Working together to carefully navigate these important issues, I am confident that we can develop a system that balances the needs of national security with the importance of affording all accused, whether terrorists or American service members, a fair and full judicial proceeding.”
He also argued that, while military judges are capable of evaluating in a closed session what classified evidence can be brought to court, if it is too dangerous to show the evidence to an al Qaida accused the Pentagon should not be allowed to prosecute using it.
Sen. Arlen Specter: Isn’t there some problem — would there be a problem in showing an al Qaida defendant, for example, classified information under those terms?
MacDonald: Yes, sir, there would. And I think that the answer may be that in that instance you would have to give up the prosecution of that particular charge.
Specter: So you’d say it wouldn’t be a matter of proceeding without informing the defendant so that he would not be denied the confrontation, but you’d have to drop the charge?
MacDonald: Yes, sir.