WAR CRIMES DOSSIER: MUST READ by Brig. Gen. Thomas Hartmann

Linda G's comments: Sounds like a load of bull to me but…. okay…. I have always been interested in how a sociopath’s mind works … this guy isn’t even embarrassed. I’m embarrassed for him…almost..

A chat with the adviser to the Gitmo military commissions

Dan Ephron Newsweek

This Thursday, Khalid Sheikh Mohammed will appear in court at Guantánamo Bay for the first time since he was captured in Pakistan in 2002. He and four other detainees accused of engineering the attacks of Sept. 11, 2001, will be arraigned in a newly built courtroom on the island. KSM, as the government refers to Mohammed, is the most senior Al Qaeda leader held by the United States, and he has confessed to plotting not only 9/11 but a raft of other attacks on American targets over the past decade. Yet his interrogation and now his trial by military commission have been marred by allegations of torture. The CIA, which held KSM in secret prisons until he was transferred to Gitmo in 2006, has admitted using harsh interrogation methods—including the near-drowning technique known as waterboarding. Arguments over the abuse and other procedural issues are expected to be heard in pretrial motions over the coming months.

Brig. Gen. Thomas Hartmann is the legal adviser to the convening authority, the Pentagon office that oversees the commissions. He’s been a controversial figure since taking the job last July. Hartmann clashed repeatedly with the commissions’ former chief prosecutor, Col. Morris Davis, who accused him of trying to rush certain cases—including KSM’s—and intervening in decisions that are rightly the prosecutor’s. Last month a Guantánamo judge sided with Davis, ordering Hartmann to back off from the case of one detainee.

At his office in Crystal City, Va., last week, Hartmann sat down with NEWSWEEK’s Dan Ephron to discuss the commissions and the upcoming trial. Excerpts:

NEWSWEEK: Let me start by asking you about the perception problem that the military commissions have. It’s not just the ACLU that believes they’re unfair; it’s a good number of our allies around the world, some former prosecutors in the military commissions office, and some key politicians here in Washington. Even if the commissions are fair, as you’ve said again and again, how do you address the problem of perception?

Gen. Thomas Hartmann: You start with the core. You start with what you’ve got in the statute and the manual for military commissions and the regulation. When you start with those things, you will see that at the core, before you start making generalizations, the protections provided to these people, to these accused, are very, very similar to the protections that would be provided to me in connection with a military court-martial. That’s a fundamentally important thing, to say that you’re giving essentially the same kinds of protections to people accused in these cases to the kinds of people that we are. We wear these uniforms; we take oaths. And that’s an important thing. Secondly, step outside the military arena to the Article 3 [federal] courts. The same kinds of protections are here. These cases, there’s an automatic appeal for any finding of guilt. Then go to Nuremberg. Everybody thinks Nuremberg is the gold standard, right? There was no beyond-a-reasonable-doubt standard at Nuremberg. There were no appellate rights at Nuremberg. There were no rules of evidence at Nuremberg. The people at Nuremberg who were found guilty and were sentenced to death are dead. How long did it take them to be dead? Less than a week, because there were no appellate rights.

But there were also acquittals at Nuremberg.

We haven’t even had a trial yet. So there may be acquittals in these cases, too. Nobody’s saying there won’t be acquittals. Nobody’s saying anything about the outcome. The outcome does not determine the fairness. The fairness is in the process of making sure that the evidence is heard, that the accused has the right to counsel, that the accused has the right to remain silent, the accused has privileges, the accused can cross examine, confront, challenge, call his own witnesses, file motions, argue to the jury.

But you can foresee a possibility where some number of Guantánamo detainees are acquitted?

Of course. It’s a trial process. That can happen in any case at any time.

Defense lawyers for the five high-value detainees [accused of masterminding the attacks of 9/11] asked to postpone the arraignment but were turned down. What’s the rush?

The judge made that determination. As a general matter, there is no rush on anything. [But] it’s 2008. So there is no rush, but there is a sense of the importance of these cases in general, not just the 9/11 cases. They’ve been analyzed, reviewed, coordinated with the intelligence and law enforcement communities, the legal communities, and now various prosecutors are ready to swear charges, and once you swear charges you get into the process.

But as far as I understand, only one of the five detainees who is going to be arraigned Thursday has had a chance to see his attorney.

Dan, that will always be the case, won’t it? It will always be the case. Because the prosecutor in every trial, the trial down the street, the trial in the military, the trial in this process—the prosecutor is the guy who’s been studying the evidence, organizing it, collating it, gathering it, putting trial briefs together, putting charges together, swearing charges. There is no defense counsel. The accused doesn’t even know he’s got a case. And when that’s done, the accused is charged, just like in our case. And when the charges are sworn, the accused gets a counsel. So the defense is always going to come later to the game than the prosecution does.

One of the issues that’s come up is security clearances for the civilian attorneys, even for the military defense attorneys. When will that be resolved?

Glad to answer. They have 18 defense counsel on the 9/11 cases. Write these numbers down, because this is important. Ten military and eight civilian. Of the 10 military, eight have the appropriate level of security clearance. Of the civilians, of those eight, five have or will have by [May 30] the appropriate level of security clearance. Three are in the process of getting their security clearance. If you try to get the level of security they need in these cases, it usually takes a year to 18 months. Now, that wouldn’t work, would it? So what we’ve done is we’ve streamlined that process to make sure the defense counsel and others in the process move very rapidly in getting their security clearance. So absent some unusual thing, that security clearance that began between the 12th and the 21st of May should be done by the end of June.

But from the perspective of the attorney, he’s saying, “Even if I get the clearance before the arraignment, the first time I can see my client is a day or two days before. We have to talk about the plea he’s going to enter; we have to talk about some defense strategy.” And some of these attorneys won’t get it until after the arraignment.

Well, the judge looked at all that. Tom Hartmann is not the judge. The judge is the judge. Judge [William] Kohlmann looked at all that. All those arguments were made in the motion, in the filing. The judge dealt with the very issues that you’re bringing up, Dan, and he concluded that it was appropriate to proceed with the arraignment.

There’s speculation that part of the strategy is to get the arraignment done before the Supreme Court issues its decision [on the legitimacy of the military commissions]. What do you say to that?

I know nothing about that.

Capt. Prescott Prince, the military attorney representing Khalid Sheikh Mohammed, one of the things he has been complaining about is that all his requests for discovery material have been denied. Why is that?
I don’t know. I don’t know anything about his requests for discovery material. But the prosecution has an obligation to produce certain things to him on their own, exculpatory information for example, and various kinds of information by the accused, material that is necessary for the defense. Those matters will either be produced—or the alternative, Dan, is to go to the judge and the judge will require production of the evidence. If the defense thinks it’s not getting discovery, the place to go is not the media, the place to go is to the judge.

This is where the lack of fairness comes in. This is where observers say the standards are different, the process is different.

No, no.

Exculpatory evidence, discovery. [Prince] talks about being in an interview with his client and not being able to walk out with written notes.

That’s not correct. Of course he can take notes. He can take them out with him.

Attorney Prince has complained that he can’t take his notes with him.
Well, he can. I’m telling you: number one, he can take notes; number two, he can take those notes out with him; and number three, if those notes are classified, he can take those notes to classified storage locations on Guantánamo Bay. He has a defense special compartmentalized information facility, a SCIF, completely dedicated to the defense. A big building about half the size of all the floor space we’ve got has been available to them. It’s been available to them for about three weeks now. They have one in the United States, and when it wasn’t available to them down there, they had other SCIF storage space down there.

You’re saying there’s now a facility?

On Guantánamo Bay. Those are available. Those were constructed specifically for the defense. Now, the particular SCIF wasn’t available. It was ready, but there was an operating procedure that wasn’t in place, so they were allowed to store their material elsewhere. But they were allowed to take their information out and store it. In Washington, D.C., they have a SCIF; the SCIF is too small. I have been fighting to get them a better SCIF for some time and I continue to fight that.

I just saw pictures of the new courtroom at Guantánamo. There’s a fairly large courtroom; there’s a glass wall, and reporters will be on the other side of that glass wall. Now, my understanding is that during classified portions of the hearing, reporters will not be able to hear what’s going on inside. Can you estimate how much of the hearings reporters won’t be able to hear?

That’s a good question. I can’t answer it in terms of a percentage. But what the prosecutors have told me in general is that the amount of classified information that will be used in the cases will be relatively minor.

Can you quantify it?

Relatively little is all I know.

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 [in full-blown trials]?
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 [Director Michael] 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.

I want to quote to you Anthony Romero, the executive director of the ACLU, who says you’ve become a lightning rod for criticism of the military commissions. He says anyone who wants to see the process succeed would not retain Hartmann in this position. How do you respond?

The legal adviser is responsible for all the logistics, for supervising the chief prosecutor, for giving legal advice to the convening authority, for making sure the systems are in place, for helping to make sure the defense is adequately resourced. Everybody’s entitled to their criticisms and their comments, but it’s not personal. It’s a mission. It’s an obligation. We’ve been asked to run these military commissions. We’ve been required to make sure they’re fair, open, just, honest, and we’re going to do that.

URL: http://www.newsweek.com/id/139664

There were acquitals at Nuremberg, BECAUSE others had done the same things .. and charges were NULLIFIED. At Guantanamo Bay, that is NOT the case.

STAY TUNED. MORE IS COMING ..

Oh, if this guy were smart, he'd turn state's evidence NOW.

Unforgivable Behavior, Inadmissible Evidence - WaPo

Washington

Sam Weber

TWENTY-SEVEN years ago, in the final days of the Iran hostage crisis, the C.I.A.’s Tehran station chief, Tom Ahern, faced his principal interrogator for the last time. The interrogator said the abuse Mr. Ahern had suffered was inconsistent with his own personal values and with the values of Islam and, as if to wipe the slate clean, he offered Mr. Ahern a chance to abuse him just as he had abused the hostages. Mr. Ahern looked the interrogator in the eyes and said, “We don’t do stuff like that.”

Today, Tom Ahern might have to say: “We don’t do stuff like that very often.” Or, “We generally don’t do stuff like that.” That is a shame. Virtues requiring caveats are not virtues. Saying a man is honest is a compliment. Saying a man is “generally” honest or honest “quite often” means he lies. The mistreatment of detainees, like honesty, is all or nothing: We either do stuff like that or we do not. It is in our national interest to restore our reputation for the latter. (All opinions here are my own, and do not necessarily reflect those of the Air Force or Defense Department.)

Some accounts of detainee abuse in the war on terrorism are overblown, but others are not. After humiliating prisoners at Abu Ghraib by forcing them to strip naked and lie in a pile like a stack of firewood or simulating the drowning of detainees to persuade them to talk, we can no longer say we “don’t do stuff like that” — and we do not have to look far to see the damage. The disclosure last month of a manual for Canadian diplomats listing the United States as a country where prisoners might face torture, referring specifically to Guantánamo Bay, Cuba, was an embarrassment on both sides of the border.

During the Persian Gulf war in 1991, the Iraqi armed forces surrendered by the tens of thousands because they believed Americans would treat them humanely. Our troops reached the outskirts of Baghdad in 100 hours and suffered fewer than 150 combat-related fatalities in large part because of these mass surrenders.

Would it have been different if the perception of us as purveyors of torture and humiliation existed back then? Would tens of thousands of Iraqis have put down their weapons if they believed they were going to be humiliated, abused or tortured, or would they have fought? Had they chosen to fight, the war would have lasted longer and cost more and casualties would have skyrocketed. Our reputation in 1991 as the good guys paid dividends and supported our national interests. We must regain that reputation.

We can start by renouncing cruel, inhuman and degrading treatment of detainees and unreservedly committing to uphold the Detainee Treatment Act, which passed Congress in 2005 but was diluted by a presidential signing statement. We must also reaffirm our adherence to the United Nations Convention Against Torture, which the Senate ratified in 1990.

Just as important, we need to come to grips with the practice known as waterboarding, the simulated drowning of a person to persuade him to talk. There was some progress in recent weeks: the C.I.A.’s director, Gen. Michael Hayden, told Congress that the practice may be illegal under current law; the director of national intelligence, Michael McConnell, told a reporter, “Whether it’s torture by anybody else’s definition, for me it would be torture”; Attorney General Michael Mukasey, after being asked if waterboarding would be torture if done to him, said that “I would feel that it was”; and on Wednesday, Congress passed a law forbidding the C.I.A. to use waterboarding and other harsh techniques.

Why a few others in positions of power still find it so difficult to admit the obvious about waterboarding is astounding. We can never retake the moral high ground when we claim the right to do unto others that which we would vehemently condemn if done to us.

Once we condemn and stop all waterboarding, what do we do in cases where it was conducted? An obvious step is to prohibit the use of evidence derived by waterboarding in criminal proceedings against detainees. Regardless of whether the technique has produced actionable intelligence, it did not produce reliable evidence with a place in our justice system. Imagine the outrage if the Iranian government tied down an American, convinced him the choices were to cooperate or die, and then used his “confession” as evidence in a death-penalty trial.

My policy as the chief prosecutor for the military commissions at Guantánamo was that evidence derived through waterboarding was off limits. That should still be our policy. To do otherwise is not only an affront to American justice, it will potentially put prosecutors at risk for using illegally obtained evidence.

Unfortunately, I was overruled on the question, and I resigned my position to call attention to the issue — efforts that were hampered by my being placed under a gag rule and ordered not to testify at a Senate hearing. While some high-level military and civilian officials have rightly expressed indignation on the issue, the current state can be described generally as indifference and inaction.

At a Senate hearing in December, the legal adviser for the military commissions, Brig. Gen. Thomas Hartmann, refused to rule out using evidence obtained by waterboarding. Afterward, Senator Lindsey Graham, who is also a lawyer in the Air Force Reserves, said that no military judge would allow the introduction of such evidence. I hope Senator Graham is right about military judges, and it is unfortunate that any might be put in a position where he has to make such a decision.

Regrettably, at a Pentagon press briefing last week announcing that Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and five others had been charged and faced the death penalty, General Hartmann again declined to rule out the use of evidence acquired through waterboarding. Military justice has a proud history; this was not one of its finer moments.

By MORRIS DAVIS

Published: February 17, 2008

That is not to say those subjected to waterboarding get a free pass. If the prosecution can build a persuasive case without using the coerced “confession,” then whether a defendant endured waterboarding is immaterial in determining guilt or innocence.

There are some bad men at Guantánamo Bay and a few deserve death, but only after trials we can truthfully call full, fair and open. In that service, we must declare that evidence obtained by waterboarding be banned in every American system of justice. We must restore our reputation as the good guys who refuse to stoop to the level of our adversaries. We are Americans, and we should be able to state with conviction, “We don’t do stuff like that.”

Morris Davis, an Air Force colonel, was the chief prosecutor for the military commissions at Guantánamo Bay, Cuba, from 2005 to 2007.

Note the following!!

http://en.wikipedia.org/wiki/Morris_Davis

Ex-Prosecutor Alleges Pentagon Plays Politics

Pressure for 'Sexy' Guantanamo Hearings

By Josh White

Washington Post Staff Writer
Saturday, October 20, 2007; Page A03

Politically motivated officials at the Pentagon have pushed for convictions of high-profile detainees ahead of the 2008 elections, the former lead prosecutor for terrorism trials at Guantanamo Bay said last night, adding that the pressure played a part in his decision to resign earlier this month.

Senior defense officials discussed in a September 2006 meeting the "strategic political value" of putting some prominent detainees on trial, said Air Force Col. Morris Davis. He said that he felt pressure to pursue cases that were deemed "sexy" over those that prosecutors believed were the most solid or were ready to go.

Davis said his resignation was also prompted by newly appointed senior officials seeking to use classified evidence in what would be closed sessions of court, and by almost all elements of the military commissions process being put under the Defense Department general counsel's command, something he believes could present serious conflicts of interest.

"There was a big concern that the election of 2008 is coming up," Davis said. "People wanted to get the cases going. There was a rush to get high-interest cases into court at the expense of openness."

Davis said he thought the military commissions could go forward as a legitimate way to try alleged terrorists in U.S. custody, but he said he had serious concerns about how the new officials were approaching the commissions. He said he felt a sense of expediency over thoroughness was taking hold and that efforts to use classified evidence -- a controversial idea that has drawn congressional concern -- could taint the trials in the eyes of international observers.

Davis abruptly resigned after complaining that his authority in prosecutions was being usurped. He argued that Air Force Brig. Gen. Thomas Hartmann, a new legal adviser to the convening authority for military commissions, should remain a neutral and independent party and should leave prosecuting cases to prosecutors.

In his complaint, Davis alleged that Hartmann inappropriately requested detailed information on pending cases, defined the sequence in which cases would be brought forward and expressed an intent to personally conduct pretrial negotiations with defendants' attorneys.

A Pentagon review found that Hartmann did not attempt to coerce Davis's team but advised that he should "diligently avoid aligning himself with the prosecutorial function so that he can objectively and independently provide cogent legal advice" to the convening authority -- the official in charge of supervising the commissions.

J.D. Gordon, a Pentagon spokesman, said yesterday that Hartmann was not available for comment. Gordon said the military commissions will provide detainees with fair trials.

"We are working closely with our interagency counterparts to ensure that prosecutions by military commission result in fair and open trials while at the same time protecting sensitive information that, if revealed, could be damaging to U.S. and allied forces still conducting combat operations against al-Qaeda and their supporters," Gordon said.

Hartmann arrived as legal adviser to the convening authority last summer, and suddenly, Davis said during a lengthy interview, his office was inundated with what he called "nano-management," including requests to oversee cases that had previously been left solely to prosecutors.

Part of the new focus, Davis said, was to speed up cases that would show the public the system was working. Davis said he wanted to focus on cases that had declassified evidence, so the public could see the entire trial through news coverage. That would defuse possible allegations that the trials were stacked against defendants.

But Hartmann said he was satisfied with putting on cases that included closed sessions, because the law allows it.

"He said, the way we were going to validate the system was by getting convictions and good sentences," Davis said. "I felt I was being pressured to do something less than full, fair and open."