When the President is Prosecutor

In this past Sunday's NYT, William Glaberson reported on the latest legal travails for the Bush Administration's military commissions set up in Guantanamo to try alleged war criminals. In a case involving Salim Hamdan, characterized by some as Osama Bin Laden's driver, a military judge has issued an order that in effect forbids the Pentagon from continuing to interfere with legal decisions being made by military prosecutors in the Hamdan case. One such decision was whether or not to use evidence derived from interrogations involving torture. The prosecutors had determined to exclude such evidence as unreliable, but that decision was, in effect, overruled by the Pentagon's representative, Brig. Gen. Thomas W. Hartmann.

The military judge, Navy Captain, Keith J. Allred, was particularly stinging in his opinion in denouncing interference by, what is essentially a political agency, in the decisions of military prosecutors.

“Telling the chief prosecutor (and other prosecutors),” the decision said, “that certain types of cases would be tried and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play.”

The American prosecutor, even in military form, is a distinctive legal model that is arguably 100 percent an American invention, even though now much replicated. Where as most legal officials around the world tasked with representing the state in seeking the criminal conviction of an individual are mere agents of national ministries, the American prosecutor is or works for an independent, elected, local official. In Governing through Crime, Chapter 2, I argued that American prosecutors had provided a unique model for the reconstruction of American executive authority in the 1970s. As governors and even presidents have fashioned themselves "prosecutors-in-chief" they have occasionally run into the problem that they cannot easily displace actual control prosecutors.

When the Bush administration, steeped in this crime model from his governorship on, began to construct their scheme for military tribunals, they created a duplicate of the American prosecutor with an important correction, an agent of the President, in this case called "the convening authority" in a position to control the entire proceeding through controlling the decisions of both military prosecutors and military defense lawyers. In this, as in so many ways, Guantanamo reveals the true genealogy of the war on terror, as not a radical rupture with the recent past, but its amplification; as a version of the war on crime with all of the remaining institutional limitations on executive power snipped out.