A Top Military Adviser Talks About War Crimes

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:

Air Force Brig. Gen. Thomas Hartmann

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.

Do you anticipate controversy over the kinds of evidence that can be used in these trials?
I expect you'll see across the board, as these cases go forward, vigorous activity by the military defense counsel, by the civilian defense counsel. And you'll see vigorous activity by the prosecutors as they attempt to achieve their burden of proof beyond a reasonable doubt. That's the clash of ideas, the clash of fact, the clash of law. You call it controversy, and I call it a trial.

What trouble do you anticipate with allowing defense lawyers to call witnesses, including other detainees?
The accused in this case will have the opportunity to call witnesses. There are many ways to call witnesses. If the witness is not available to travel, they could be made available by video. The availability of witnesses is always a challenge, and I assume it will be a challenge in some of these cases.

One other criticism has been the limited resources given to defense counsel in the 9/11 cases. Do you agree with the criticism? Could more be done?
There are 17 on the defense side and five prosecutors [in the 9/11 cases]. If you look a little larger than that, beyond the 9/11, at the present there are today in the total defense community 17 military officers—17 JAGS—four DOD civilians, and 17 civilian counsel. So that adds up to 38. The prosecution side [has] a total of 32, with 20 unformed and 12 civilian counsel. The defense has nine paralegals, the prosecution has eight. The defense has 11 analysts and more are on the way.

The defense has a secured location at Guantánamo Bay in exactly the same circumstances that prosecution has—with computers, secured access to classified information, etc. In Washington, they have a secure facility as well. I'll be frank with you—it's rather small, and we've worked to make that grow larger. And I'm very dissatisfied with the pace that we've been able to bring that to the defense. We're putting some intensity on it and expect it to move much more quickly.

In addition, each of the prosecution and the defense will grow by 20 uniformed lawyers and 20 uniformed paralegals over the next three months. And that is in part because the deputy secretary of defense has determined that the No. 1 legal services mission in the Department of Defense is the military commissions.

And what do you think about the criticism about the delays in providing security clearances to defense lawyers?
There are 10 uniformed lawyers in the 9/11 cases. Eight of them have the necessary security clearance and two are being worked through. Of the seven civilian defense counsel, two have it. Two haven't done their paperwork. And you can't get a security clearance without paper. There's no other way around it. And three are in the process. I think if you talk to anyone who has a particular level of security clearance, they'll say it takes a year to 18 months. We're trying to do it in one to two months. So that's an effort to streamline the process as much as humanly possible.