1115.org

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Army Col. Peter Brownback III is a combat veteran who served two tours in Vietnam. A retired military officer and lawyer, he was appointed to be a presiding officer on the Guantánamo military commissions. Ironically, back in September 2004, lawyers for Guantanamo detainees wanted Brownback to be disqualified from this post:

In hearings last month at the U.S. Navy base at Guantanamo Bay, attorneys for the detainees argued that Brownback should quit because he is close friends with retired Army Maj. Gen. John D. Altenburg Jr., who oversees the military trials as the tribunals’ “appointing authority.”

Brownback burst into the limelight in June 2007, when he produced a stunning ruling dismissing all charges against Omar Khadr because the tribunal he was presiding over was empowered only to try “unlawful enemy combatants”, and Khadr — like other Guantánamo detainees — had been designated an “enemy combatant”. (The same day Navy Capt. Keith Allred produced an identical ruling with regard to Salim Hamdan.)

The Bush regime really didn’t care very much for how this little drama played out. The Bush administration filed a you-were-just-kidding-right? motion. Col. Brownback affirmed his decision:

Prosecutors asked Brownback to reconsider and reinstate the charges, but he ruled on Friday that they had presented no new evidence or arguments.

A military panel had declared Khadr an “enemy combatant” but Brownback said that did not meet the strict definition of the law that authorized the tribunals.

He said the distinction was critical because international law requires other types of trial for captives who are considered “lawful enemy combatants.”

“The term ‘unlawful’ is not excess baggage, and it is not mere semantics, it is a critical predicate to jurisdiction,” Brownback wrote in the ruling.

The government hastily constituted the U.S. Court of Military Commission Review, packed it with judges much more reliable than Brownback and, lo and behold, in short order they found that it was indeed just mere semantics.

… Pentagon officials argued that the June 4 ruling was just a matter of semantics and was insufficient to dismiss the case.

Monday’s decision, the first ever by the newly formed appeals court, agreed.
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The decision was written by Navy Capt. John W. Rolph, deputy chief judge of the military appeals court. Concurring were the panel’s other two judges, Army Col. Paul P. Holden Jr. and Air Force Col. David Francis.

(1115 has it on good authority that Rolph, Holden and Francis have been unable to shave since they handed down this verdict. That’s a by-product of the fact that they are unable to look at themselves in the mirror.)

Brownback must have dozed off for a while there in the middle, but he was back in the limelight last month, with another ruling that did not exactly endear him to the Bush regime:

A military judge in the trial of Canadian captive Omar Khadr threatened Thursday to suspend the terror trial unless the prison camp releases a detailed log of Khadr’s treatment in more than five years of detention as an alleged al Qaeda terrorist.
[...]
Thursday morning, the military judge, Army Col. Peter E. Brownback III, agreed with the defense that it should get copies of the log entries from the prison camp’s Detainee Information Management System, or DIMS.

Brownback is believed to be the first war court judge to threaten to ”abate” the proceedings if the prison camp’s command staff does not turn over the evidence.

As I wrote at the time:

One of the issues that Brownback is going to have to rule on if the trial continues is whether statements made by Khadr to interrogators, both at Bagram air base in Afghanistan and at Guantánamo, were obtained by coercion or torture. The entire TWAT chain of command is surely looking forward to that ruling. Brownback sounds like just the judge they would hand-pick to draw the dividing line between coercion and torture.

Someone high up in the Bush administration obviously decided that enough was bloody enough:

A judge hearing a war crimes case at Guantanamo Bay who publicly expressed frustration with military prosecutors’ refusal to give evidence to the defense has been dismissed, tribunal officials confirmed Friday.

Army Col. Peter Brownback III was presiding over the case of Canadian detainee Omar Khadr. Marine Col. Ralph Kohlmann, in his role as chief judge at Guantanamo, ordered the dismissal without explanation and announced Brownback’s replacement in an e-mail this week to lawyers in Khadr’s case.

We have been unable to confirm whether Kohlmann already had a beard, or whether he has started to grow once since last week.

This development does, of course, make perfect sense. When all you’re doing is holding show trials in kangaroo courts — mostly for political effect — and when the integrity of these so-called legal proceedings has already been thoroughly compromised in the public eye, why shrink from blatant acts like dismissing judges who don’t produce the rulings and verdicts you’ve made it clear you want to see?

When the mantra is “How can we explain acquittals? We have to have convictions.”, and you have clowns like Brownback compromising The War Against Terror and jeopardizing national security by issuing the rulings he has issued, there’s really only one choice. On the one hand “senior officials in President George W. Bush’s administration (are urging tribunal judges) to move high-profile trials along quickly for political reasons”, and on the other hand, clowns like Brownback are refusing to set trial dates:

Brownback had threatened to suspend the proceedings against Khadr unless prosecutors handed over Khadr’s medical and interrogation records since his July 2002 capture in Afghanistan.

Khadr’s Navy lawyer, Lt. Cmdr. William C. Kuebler, had asked for the records months ago, and Brownback had ordered the government to produce them.

The lead prosecutor in the Khadr case, Marine Maj. Jeffrey Groharing, this week reiterated to Brownback his view that the defense wasn’t entitled to the records. He urged the judge to set a trial date.

Brownback said during an April hearing that he had been “badgered and beaten and bruised by Maj. Groharing” to set a date but couldn’t do so in good conscience when the prosecution was withholding evidence.

Yes, there’s really only one choice when a tribunal judge insists on behaving like this. Especially when you try to quietly take him aside and tell him off, and he brings that up in open court:

Brownback revealed in a November 2007 session that Pentagon officials had made clear they “didn’t like” his decision the previous June to dismiss the Khadr case for lack of jurisdiction.

Brownback was clearly begging to be fired. The only surprise is what took them so long to do it.

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True to type, the first thing the Pentagon did after Brownback was fired was put out a false story explaining the development:

The initial explanation turns out to have been not the whole truth. Last week, a tribunal spokesman, Air Force Captain Andre Kok, said the removal was “a mutual decision between Col. Brownback and the Army that he revert to his retired status when his current active-duty orders expire in June.”

Apparently, after everything that had occurred, someone felt that Brownback would quietly go along with this story. So Monday, they had to scramble and do a complete about-face:

Colonel Ralph Kohlmann said yesterday he felt it necessary to address concerns about the independence of the judiciary. Col. Brownback, the chief judge said in a written statement, had been recalled from retirement by the military in 2004 to serve for one year on the Guantanamo military commissions. Three times, the military extended his recall orders, a year at a time, and Col. Kohlmann had personally requested an additional extension so Col. Brownback could see the Khadr trial through to its completion. Col. Brownback, too, was prepared to stay on; he had said he would “continue in the service of his country for as long as deemed appropriate by the cognizant authorities.”

As for why those authorities deem it no longer appropriate, Col. Kohlmann said “my understanding” is that it was “based on a number of manpower management considerations unrelated to the Military Commissions process.”

To which Khadr’s lawyer had this response:

Khadr’s lawyer, Navy Lt. Cmdr. William Kuebler, called the explanation “odd to say the least,” given that the Defense Department had recently put out a call urging Navy lawyers to volunteer as judges, prosecutors and defense attorneys in the Guantanamo trials, as a national priority assignment.

So much for manpower management considerations. At some point someone will no doubt be able to cook up an explanation for Brownback’s removal from the case that cannot be immediately dismissed. How many iterations that will take is anyone’s guess.

There is also this unanswered question: why was Brownback removed from the case now, when his active duty status expires only on June 29?

“Moreover, Colonel Kohlmann’s e-mail statement fails to indicate why it was necessary to relieve Colonel Brownback now, rather than allowing him rule on outstanding disclosure and other legal issues, currently set to be argued at a Guantanamo Bay hearing this month,” Kuebler said.