'Fair, Open, Just, Honest'

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.