Advising Guantanamo Bay's Military Commissions

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.