BG Martins
Brigadier General Mark S. Martins

One of Barack Obama’s first acts when he took office as President was to sign Executive Order 13493 (pdf). The key activity of this EO was:

There shall be established a Special Task Force on Detainee Disposition (Special Task Force) to identify lawful options for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.

The composition of the task force was to include the highest level individuals mostly from military and security posts: Attorney General (Co-Chair), Secretary of Defense (Co-Chair), Secretary of State, Secretary of Homeland Security, Director of National Intelligence, Director of Central Intelligence, Chairman of the Joint Chiefs of Staff. Farther down in the instructions, we find that the "Co-Chairs shall jointly select an officer or employee of the Department of Justice or Department of Defense to serve as the Executive Secretary of the Special Task Force". From this structure, it would appear that the Executive Secretary would be the person to wield the most power in putting together the policies to be put forward by the Special Task Force.

The person chosen as Executive Secretary for this Special Task Force was Brigadier General Mark S. Martins. The linked biography of Martins shows a career marked by a rapid rise through a legal system that has been at the heart of many spectacular cases in the sordid history of US prisoner treatment in Iraq and Afghanistan. I encourage comparison of the dates and assignments with Emptywheel’s Torture Timeline and with the events in the prosecution of David Passaro (yes, this is ostensibly a CIA case, but JSOC personnel certainly were around the periphery, so Martins had to be aware of the process leading to charges for Passaro and not JSOC personnel for this case or for the earlier Salt Pit murder) to see how Martins keeps turning up in offices that seem to be handling the cases where US behavior is at its worst.

Of special note, of course, is that Martins now is Deputy Commander (the biography appears to be in error with "Interim Commander"; all other references I’ve found put him at Deputy to Vice Admiral Harward) of Joint Task Force 435, which is in charge of all prisoner operations in Afghanistan. The bottom line, then, is that Martins was key in crafting prisoner policy and now has been sent to Afghanistan to carry it out.

Martins has clearly been "flying under the radar", as press references to him are relatively few. In fact, he seems to have somehow impressed reporter Gareth Porter, who has this to say about Martins’ current assignment:

Harward and other present and past JSOC officials, including Gen. Stanley A. McChrystal, who was then overall commander of JSOC, have an obvious interest in ensuring that the results of case reviews do not reflect negatively on JSOC’s detention decisions.

Putting an officer with such an obvious conflict of interest in charge of the Task Force – and assigning Martins, a lawyer who is clearly more sympathetic to detainee rights, as his deputy – has all the earmarks of a Pentagon compromise.

Although I agree with Porter in his description of the conflict of interest for Harward and McChrystal in enforcing the new prisoner policy, I disagree with his conclusion that Martins is "more sympathetic" to prisoner rights.

In fact, the Porter article from which the quotation is lifted, and this article in the New York Times, point out that the new rules still leave many Afghans angry. From the Times:

No one answered because Commander Zazai had just touched on the crux of the legal debate that has raged for nearly a decade in the United States: Does the United States have the legal right to hold, indefinitely without charge or trial, people captured on the battlefield? His question also exposed a fundamental disagreement between the Afghans and the American military about whether people had been fairly detained.

Both articles point out that Harward and Martins started the new round of releases by insisting that those released sign a form saying they were part of the insurgency, even though the Afghans insist that those being released were improperly detained. For the short term, the compromise has been for the form to state that those released were viewed by the US as being part of the insurgency.

Sadly, the New York Times ariticle is written from the point of view that this new program for prisoners to have their status reviewed is a big step forward. That view is completely refuted by reading the description of the new process in this habeas corpus case (pdf) filed on behalf of two prisoners at Bagram:

49. Even under the new process, Bagram prisoners are not permitted any access to lawyers. Bagram prisoners are instead assigned a “personal representative” – a member of the U.S. military responsible to the U.S. chain of command, who is not a lawyer, who has no duty of confidentiality to the prisoner, who has no ethical duty to zealously advocate on the prisoners’ behalf, and who is assigned to detainees by the military convening authority.

50. Bagram prisoners also are not permitted any access to a judge or an independent and impartial tribunal. Prisoners’ status determinations are made by Detainee Review Boards (“DRBs”) comprised of three military officers responsible to the U.S. chain of command. These officers need not be lawyers. The officers are appointed, and can be removed at will by, the military convening authority. They have no protection against command influence or protections against retaliation for DRB rulings.

51. Bagram prisoners are not entitled to see most of the evidence the U.S. military is relying upon to justify their detention. Prisoners must receive notice of the basis for their detention and an unclassified summary of the facts that support the basis for their detention, but are denied access to classified and other evidence in the government’s possession.

52. DRBs may rely on evidence obtained through torture or coercion.

53. The military has no obligation to disclose relevant exculpatory information to the detainee or to his personal representative.

54. A Bagram prisoner’s ability to present witnesses or documentary evidence is left to the discretion of the DRB. Prisoners may present witnesses or evidence only if the military panel deems the witnesses or evidence to be “reasonably available.”

55. Bagram prisoners can be excluded from their own hearings if “operational” concerns arise as to their presence.

56. DRB determinations cannot be appealed to any court or to any higher, independent and impartial administrative body.

I fail to see how the process described above is any kind of improvement in achieving release of prisoners who have been improperly detained. This description of the process also serves to expose as a sham the entire Special Task Force’s charge of improving how the US handles prisoners. And right in the middle of this mess is Obama’s hand-picked (through Gates) architect of the process, who now is dutifully overseeing its implementation.

There is no getting around the fact that it would have been known that Martins would come up with a program designed to continue the efforts to cover up the imprisonment of innocent citizens. As I noted above, his previous assignments overlap with previous significant cover-ups. Also, as just one more example, Martins wrote an article (pdf) in 2004 that lovingly described the legal justification for the Commander’s Emergency Response Program (CERP) in Iraq. This program was in reality so loosely set up that it has been the subject of significant attention for misuse of funds.