WASHINGTON – Amid all the attention surrounding the military trials in Guantanamo Bay, Bruce MacDonald fills an obscure but pivotal role. The retired Navy vice admiral serves as the convening authority for the military commissions, a position that some attorneys are concerned is easily susceptible to political manipulation.
The previous convening authority, Susan Crawford, was accused of politicizing the position. Although many of the same people who criticized Crawford say they respect MacDonald, they still believe that the Military Commissions Act of 2009 failed to safeguard the position’s impartiality.
“Without there being any qualifications [for the convening authority] established in the Military Commissions Act of 2009,” said Lt. Col. Darrel Vandeveld, a former prosecutor for the commissions, “a politically minded secretary of defense could appoint someone who is basically a puppet.” Vandeveld said his opinions do not represent those of the Department of Defense.
The convening authority is a central figure in the military justice system; there is no analogous position in the civilian courts. Unlike in the civilian legal system, there are no permanent military courts. Therefore, every time a service member commits a military offense, the appropriate authority must establish, or convene, a court-martial.
In nearly every setting aside from the military commissions, ranking officers such as base commanders serve as that authority. Under the court-martial system, the convening authority has responsibilities that are divided among several people in civilian courts: He serves as a jury commissioner, selecting the pool of officers from which the jury will be selected; he decides whether the prosecution has collected sufficient evidence to move forward with a trial; and, if the accused is convicted, he can reduce the sentence or even overturn the conviction. However he can never make the sentence harsher or proclaim the accused guilty if the jury deemed otherwise.
In March, Secretary of Defense Robert Gates delegated those responsibilities as convening authority to MacDonald in addition to naming him Director of the Office of Military Commissions.
Although MacDonald’s appointment was widely praised, accusations of impropriety about Crawford as well as the absence of a confirmation process or protected terms of office for the convening authority, has left many attorneys familiar with the commissions concerned that the role of convening authority could be abused in the future.
“This is a political appointee running a system of quasi-justice,” said Michael Berrigan, the principal deputy chief defense counsel for the military commissions. “How the convening authority relates to the secretary of defense, who is ultimately responsible for the military commissions under the Military Commissions Act of 2009, is not at all clear.”
“You’re talking about a person without a protected term of office making quasi-judicial decisions,” said Eugene R. Fidell, a Yale Law School professor and expert on military justice. He said protected terms of office for judicial figures are considered crucial to allow an independent interpretation of the law.
A legal representative for the Office of Military Commissions, speaking on the condition of anonymity, disputed the idea that the absence of a protected term of office exposed the position to reprisal. The Military Commissions Act of 2009 explicitly makes illegal any attempt to coerce the convening authority, he said, and being removed from the position for political reasons would certainly constitute coercion.
He also argued against the notion that the position is easily politicized, saying that “none of the enumerated concerns [ or duties of the convening authority] are political concerns.”
According to Vandeveld, Berrigan and other attorneys, political manipulation is not a hypothetical threat; it was a reality under Crawford.
Morris Davis, the former chief prosecutor of the military commissions, resigned in October 2007 over what he perceived to be the deep politicization of the commissions by Crawford.
“She was closely aligned with Vice President Dick Cheney” and his chief of staff, David Addington, he said in a recent interview. Vandeveld went further, referring to her as the vice president’s “crony.” Crawford served as inspector general of the Department of Defense during the administration of President George H.W. Bush, when Cheney was the department’s secretary.
In a December 2007 editorial in the Los Angeles Times, Morris accused Crawford of “assessing evidence before the filing of charges, directing the prosecution’s pretrial preparation of cases, drafting charges against those who were accused and assigning prosecutors to cases, among other things.
“Intermingling convening authority and prosecutor roles perpetuates the perception of a rigged process stacked against the accused,” he wrote.
Morris also claims that Crawford negotiated the plea bargain for David Hicks, an Australian detainee with connections to al-Qaida, without consulting with the prosecution. Hicks, whose charges carried a maximum sentence of life imprisonment, received a sentence of nine months to be served in his home country, even though, according to Morris, the prosecution was pushing for a sentence “measured in years, not months.”
Morris said he believes the deal was made to appease then-Australian Prime Minister John Howard, who was a key American ally in the Iraq war.
“The deal that resulted had a strong odor of impropriety,” Morris said. “In 25 year in the military, that was the only plea agreement I had ever seen that wasn’t negotiated between the prosecution and the defense.”
Neither Morris nor Vandeveld believe MacDonald is as susceptible to outside influence as Crawford was. In fact, Morris said, “If they had let me hand-pick the convening authority, I couldn’t think of anyone better than MacDonald.”
But Fidell was quick to point out that MacDonald’s sterling reputation does not change the structural problems of the office.
“These issues should not be judged on personalities,” he said.