Wednesday, December 12, 2007
Evidence From Waterboarding Could Be Used in Military TrialsBy Josh WhiteWashington Post Staff WriterWednesday, December 12, 2007; A04The top legal adviser for the military trials of Guantanamo Bay
detainees told Congress yesterday that he cannot rule out the use of evidence derivedfrom the CIA 's aggressive interrogation techniques, including waterboarding, a tactic thatsimulates drowning.Air Force Brig. Gen. Thomas W. Hartmann, who oversees the prosecutors who will trythe detainees at military commissions, said that while "torture" is illegal,he cannot say whether waterboarding violates the law. Nor would he say that suchevidence would be barred at trial."If the evidence is reliable and probative, and the judge concludes that itis in the best interest of justice to introduce that evidence, ma'am, those are the rules we will follow," Hartmann said in response to questions from Sen. Dianne Feinstein (D-Calif.), at a Senate Judiciary subcommittee hearing.Hartmann also declined to say that waterboarding would be illegal if used by anothercountry on U.S. forces, drawing expressions of concern from Sen. Lindsey O. Graham (R-S.C.). Graham has advocated that techniques used by all U.S. agencies conform to the GenevaConventions, which prohibit cruel, inhuman or degrading tactics.Hartmann's testimony came amid broad discussion of the use of waterboarding on at least three important terrorist suspects who were taken into secret CIA custodyafter the Sept. 11, 2001, attacks. The CIA announced last week that it destroyedvideotapes in 2005 that depicted the use of harsh interrogation tactics on two detainees,arguing that the move was made to protect personnel visible on the recordings.Hartmann's testimony conflicted with the views of the former military commissionschief prosecutor, who resigned in October after concluding that the process had become too politicized. In recent interviews, Air Force Col. Morris Davis said he categorically rejected the idea of using any evidence derived from waterboardingbecause he believes that the technique produces unreliable information. Davis wasinvited to testify at yesterday's hearing, but the Defense Department ordered him not to attend.In September 2005, just days after Davis took the job as lead prosecutor, he toldhis team of about two dozen prosecutors and analysts that they probably would runacross evidence that resulted from waterboarding and wanted to make it clear thatit would never be presented in a courtroom."In my opinion, evidence derived by waterboarding is not reliable, and I tookit off the table," Davis said. "I think the vast majority of people wererelieved. By and large, most everybody involved in the process, the whole team, was really committed to trying to do this in a way that wasn't an embarrassmentto the country."Davis said he does not have an opinion about the effectiveness of waterboarding as an intelligence-gathering method. But, he said, because it produces questionableinformation, it should not be used in a court of law.Prosecutors, who plan to present between 80 and 90 cases, have reviewed evidenceon dozens of Guantanamo detainees and concluded, according to Davis, that waterboardingwas used on only "a handful" of them. Declining to discuss classified information, he said it is very clear in the intelligence reporting which techniqueswere used on each detainee and what kind of information was elicited from them."Whatever method was employed would be clearly spelled out," Davis said."There were things that I read that I thought were wrong, that if the shoe were on the other foot, that if it was one of our guys being subjected to it, we'dbe pitching a fit."If we saw Saddam Hussein doing waterboarding to one of our guys, we'd be planning the mission to do somethingabout it," he said.After yesterday's hearing, Graham, a reserve Air Force lawyer, said he believesDavis is right and that "no military judge would ever entertain the idea ofallowing evidence from waterboarding."Charles D. "Cully" Stimson, a former deputy assistant secretary of defensefor detainee affairs, said he suspects that some of the information derived fromwaterboarding must be reliable or the CIA would not use it. But Stimson said he would never use such information in a courtroom."If I were the prosecutor, I would not be putting in any statements educed by waterboarding," said Stimson, a longtime prosecutor and military lawyer who is now at the Heritage Foundation . "It offends my sense of what's right and wrong."
Monday, December 3, 2007
'I will never leave Guantanamo'
By Sabin Willett
December 3, 2007
"WE HAVE important news for you!"
Chained to the floor of a cell in Camp Six, Guantanamo, Joseph said nothing. But
he had some news for us, too.
The Court of Appeals had decided what record - what pieces of paper - it would examine
when it considered his "Detainee Treatment Act" case. This was big. For
months, we urged the Bush administration to release its exculpatory evidence about
Joseph. The administration fought back hard. And we'd won - a brilliant victory!
"What do they say - these papers?" Joseph asked.
An awkward pause followed. We didn't exactly have them yet. The government had
moved for reconsideration, filed affidavits, more briefs. There might be further
appeals. It was complicated. The order came down in July, and now it was October.
They hadn't produced a page. But it was a great victory!
Joseph listened in silence. During six years of US imprisonment he's heard this
sort of thing before. All this talk from American lawyers about American courts
- in Camp Six a man can't be sure that American courts exist at all, but if
they do, it is certain that nothing ever comes of them but essays. No one alleges
that Joseph was ever a terrorist, or a soldier, or a criminal. The military told
him in 2002 he was innocent. Again in 2003. Again in 2006. He filed a habeas petition
in 2005. He would be gone if the military could find a country to take him.
When Senator Joseph Lieberman and the other guardians of freedom in Congress stripped
his habeas rights, he filed a Detainee Treatment Act petition. That was 11 months
For two years and three months he'd been asking the federal judiciary to hear
a few simple facts. No judge ever has.
"I also have something important to tell you," Joseph said. "About
What came next was deeply personal. (It is why I use "Joseph," a pseudonym
for this good husband.) A Muslim, he does not like to speak to me of such personal
things. But he had no choice. Camp Six is complete isolation. The men call it the
dungeon above the ground. He is held alone in a metal cell, denied any contact with
companions, books, news, the world - with his wife or child.
North Korea used this isolation technique against our airmen in 1952. We know a
good idea when we see it, so the taxpayers paid $30 million to Dick Cheney's
former company to duplicate North Korea.
The bunks had to be filled. Joseph got one. And so a message through me was the
only way he could do his duty by her.
"I want you to tell her that it is time for her . . .. to move on."
"You mean . . .?"
"Yes. I will never leave Guantanamo."
His affect was flat, his voice soft. He looked up only once, when he said to me,
urgently, "She must understand I am not abandoning her. That I love her. But
she must move on with her life. She is getting older."
We are all getting older. Guantanamo is now far older than any World-War-II POW
camp. Hope fled the sunless gloom of Camp Six long ago.
Joseph slips with the others down isolation's slope. He stands in the twilight.
Beyond, the darkness of insanity beckons. He seems ready to surrender to it.
Somewhere in a file drawer in Guantanamo is a copy of the memo that clears Joseph
for release. But it was written in 2006, and is as forgotten as he is. So the good
husband did the last thing a man in isolation can do. He set his wife free from
her husband's prison.
Not to worry, Joseph! Our federal judges are at their posts! They are making important
rulings in your case - earnestly debating the important question of which pieces
of paper to look at!
Sabin Willett is a partner at Bingham McCutchen, which represents prisoners at the