A Top Military Adviser Talks About War Crimes

http://www.usnews.com/articles/news/2008/06/02/a-top-military-adviser-talks-about-war-crimes.html

A Top Military Adviser Talks About War Crimes
Thomas Hartmann discusses military commissions on the eve of a 9/11 arraignment
By Emma Schwartz
Posted June 2, 2008


The military commission process at the U.S. prison at Guantánamo Bay, Cuba, has come under criticism over whether it can be fair to detainees who have been held there for years without charge. But several cases are moving forward to trial. The first, against Salim Hamdan, a former driver for Osama bin Laden, is scheduled to begin in July. And this week, the five defendants charged with crimes related to the attacks of Sept. 11, 2001, will be arraigned before the military judge. Air Force Brig. Gen. Thomas Hartmann, a longtime military lawyer, is the legal adviser for the military commission process. He oversees the chief prosecutor and provides advice to the convening authority. In supervising the first war crimes cases in the United States since World War II, Hartmann also coordinates the cases on the island naval base and works to persuade the public that the oft-maligned system is fair. Hartmann, however, was removed from overseeing the Hamdan case because of allegations by a former prosecutor that he urged prosecutors to use secret evidence in closed-door proceedings as well as evidence derived from what critics say is torture. In an interview with U.S. News, Hartmann explained his role and belief in the process. Excerpts:

In announcing the charges against the 9/11 detainees, you said "there will be no secret trials." But you were dismissed from the Hamdan case over allegations you encouraged closed-door proceedings. Do you think the removal was fair? Do you think you could continue to be a fair arbitrator in these other cases?
I can't comment on the Hamdan case or any specifics with regard to any of the cases where there are motions with regard to this. But I will say that I would not and have not directed anybody to use any particular form of evidence. It would not be appropriate for me to do that. So I think that answers your question. But that's a general comment.

The tribunal has come under criticism for the use of evidence. Do you think the past treatment of these five detainees—including the waterboarding of Khalid Shaikh Mohammed—will hinder the prosecution and the use of evidence?
I will not comment on any specifics of the 9/11 trial simply because that is the purpose of the trial. It is to allow the prosecution to present its evidence, for the defense to exercise the protections and the discovery rights that are available to them so they can find out what evidence they need to vigorously defend their client. I think the trial process is the fairest process on Earth that exists to resolve divergent issues of facts and law and come to a reasoned and solid and just conclusion, and that's what we'll apply here.

http://www.newsweek.com/id/139664/page/1

How much of the total evidence against the detainees was declassified?
I don't know. The entire process has been an effort to declassify as much of the evidence as possible to make the process as transparent as possible to avoid anything that would keep the information from going to the press.

I want to get back to Khalid Sheikh Mohammed. He and others were re-interrogated in what's been called a "clean team" process. Can you talk about that?
No. For me to comment on the evidence or the method by which evidence was gathered or reviewed is wrong.

How long will it be before evidence is actually heard ?
I can't predict that. You've got five accused in these cases. Just generally speaking, statistically speaking, I expect you'll see motions and a good bit of activity in regard to discovery, but I don't know for sure. The ability to predict when a trial will go is hard.

I've read the opinion of lawyers and legal scholars who say that in such a complicated series of cases getting to the stage of a full-blown trial will take months and maybe years.
I'm not going to make an assessment. It's just going to take a long time. National security cases are complex.

I want to ask you about waterboarding, which most security officials now agree is torture, including CIA Hayden. What's your opinion on that?
I don't give an opinion on that. I allow the courts to decide whether it falls in a particular category. Torture is illegal. The president of the United States has said we do not torture. Statements derived from torture are inadmissible in these proceedings. Beyond that, we allow the courts to evaluate the evidence. Ninety-five to 99 percent of what goes on in the trial is fact, and you evaluate the facts against the law.

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