NYT : From a Critic of Tribunals to Top Judge

From a Critic of Tribunals to Top Judge

By WILLIAM GLABERSON | December 13, 2007

Back in 2002, a master’s degree candidate at the Naval War College wrote a paper on the Bush administration’s plan to use military commissions to try Guantánamo suspects, concluding that “even a good military tribunal is a bad idea.”

It drew little notice at the time, but the paper has gained a second life because of its author’s big promotion: Col. Ralph H. Kohlmann of the Marines is now the chief judge of the military commissions at the naval base in Guantánamo Bay, Cuba.

The system, Judge Kohlmann wrote in 2002, would face criticism for the “apparent lack of independence” of military judges and would have “credibility problems,” the very argument made by Guantánamo’s critics.

He said it would be better to try terrorism suspects in federal courts in the United States. “Unnecessary use of military tribunals in the face of reasonable international criticism,” he wrote, “is an ill-advised move.”

The paper is becoming a reference work of sorts in the curious history of Guantánamo, which includes a number of former officials who have become outspoken critics, including several former intelligence officers and a former chief military prosecutor.

Judge Kohlmann may be the only one who has switched the order, first delivering a fervent attack on Guantánamo and later becoming one of its officials.

The existence of his paper, written as an independent study project, has been noted occasionally in court in Guantánamo and elsewhere, though detainees’ advocates say it has become more noteworthy since his appointment as chief judge in March. But the details of his arguments escaped wide public notice until a few weeks ago, when David Glazier, an associate professor of law at Loyola Law School in Los Angeles, came across the paper in a mass of newly released documents from a case Judge Kohlmann handled in March.

The documents showed that defense lawyers had asked Judge Kohlmann about the paper in written questions. “I chose the topic because it was in the news at the time,” he explained.

This week, Mr. Glazier said he had been fascinated. “My reaction was, this is pretty amazing, that even the chief judge of the commissions has recognized the horrendous problems of the commission process,” he said.

A few weeks ago, Professor Glazier sent an e-mail message to a group of human rights advocates. He included a link to the Pentagon Web site where the paper could be found in the newly released records of the war crimes prosecution of a former detainee, David Hicks.

Soon there were new readers for Judge Kohlmann’s five-year-old paper. “It seemed ironic in the extreme,” said David H. Remes, a detainees’ lawyer, who said he learned of the paper from Mr. Glazier’s message.

Jameel Jaffer, an American Civil Liberties Union lawyer who has been an observer at Guantánamo commission proceedings, read the paper at the request of a reporter and said it was “perplexing” that someone who seemed to agree with much that the critics have said about the Guantánamo legal system was now helping to run it. As to the judge’s arguments, Mr. Jaffer said, “He was absolutely right.”

Pentagon officials declined to discuss Judge Kohlmann’s paper this week, but in the past they have said the commissions give detainees many important protections, including the right to be represented by a lawyer.

Pentagon spokesmen said Judge Kohlmann declined to comment, and they said the telephone number for his chambers could not be revealed for security reasons.

Judge Kohlmann, a 49-year-old New Jersey native, is a decorated career officer with a down-to-business demeanor. He was a military judge in the first military commission system before it was struck down by the Supreme Court last year. He was appointed the chief judge in March by the Pentagon, after Congress created a new military commission system to replace the old.

Questioned about his paper by defense lawyers in March, he said he could not recall whether he had received a grade.

Mr. Jaffer said he would have given the judge an A. The paper was prickly at times, referring to Bush administration “spinmeisters” and dismissing the argument that the new challenges of fighting terrorism meant that civilian judges and juries would be endangered by federal trials.

Prior terrorism and organized crime cases, he wrote, showed that “the existing United States criminal justice system does not have to be put aside simply because the potential defendants have scary friends.”

Judge Kohlmann has not disavowed the paper. But the documents show that in March, perhaps illustrating the pressures of responsibility, he told defense lawyers for Mr. Hicks that he wanted to correct a misstatement in his paper.

He had been incorrect, he said, when he wrote that President Bush’s original order establishing military commissions “essentially states” that fundamental fairness would not be a part of commission trials.

“That I now believe to be incorrect,” he said.

One of Mr. Hicks’s lawyers, Joshua L. Dratel, said this week that Judge Kohlmann had seemingly reconciled his past as a critic of the system with his new role as one of its managers.

“He seemed to me,” Mr. Dratel said, “like a guy who was given a mandate to make the system work, and he was not going to let anyone interfere with it.”