Trying to Tie Obama's Hands on Gitmo by Adam Zagorin

10/8/08

Trying to Tie Obama's Hands on Gitmo

Adam Zagorin

Of all President-elect Barack Obama's early priorities, few have drawn more attention than his pledge to shut down the U.S. detention camp at Guantanamo Bay. Closing Gitmo will mean release for many of the facility's 225 detainees, while the rest will face trial on terrorism charges.

But closing Gitmo is the relatively easy part. Far more complex will be what Obama decides to do about Guantánamo's so-called "military commissions" — the Bush Administration's controversial legal apparatus for judging accused terrorists. The Supreme Court and other federal courts have repeatedly found fault with the commissions, which critics say are show trials unworthy of American jurisprudence.

This week at Guantánamo, Khaled Sheik Mohammed and four other defendants in the 9/11 case unexpectedly announced they would make "confessions," in effect pleading guilty. All potentially face the death penalty. Mohammed, who has said he seeks martyrdom, told the judge he had no faith in the Guantánamo trials, in his Pentagon-appointed lawyers or in the judge himself. "I don't trust you," he said, adding, "We don't want to waste time." It is not yet clear whether the defendents' motion will be accepted by the court.

Yet there are plenty of other defendants who could be tried under Guantánamo's unique legal process. And carrying the banner for that process is Brigadier General Thomas W. Hartmann, 53, a lawyer and Air Force reservist who as the top legal adviser and chief administrator of the trials has managed to put 17 complex war-crimes cases on the docket in less than 18 months. Now Obama's promise to shutter the facility seems to have spurred Hartmann to even greater activity. Motions and hearings are currently under way in at least half a dozen cases, and this week Gitmo authorities will host an emotional, made-for-TV moment: the first-ever visit to the trials by families of the victims of Sept. 11. Meanwhile, Hartmann's office confirms that more terrorism trials will be announced sometime before Obama's inauguration. After years during which prisoners were held without trial, the question is whether this surge in prosecutions and publicity is a case of due process finally starting to work — or a hurried effort designed to tie Obama's hands as he tries to shut the facility. Once they are under way, Obama could find it politically and legally difficult to stop the controversial proceedings or shift them out of Guantánamo. "All this activity, and an expanding list of trials that cannot possibly conclude before the next President takes office, is irresponsible," says Adam Schiff, a California Democrat and member of both the House Intelligence and Judiciary committees. Saying he has conferred with but does not speak for Obama's transition team, Schiff adds, "Attempts to limit the next President's options at Guantánamo are not likely to succeed."

Behind the scenes, Obama's team is struggling to get a handle on Hartmann's plans for bringing the Gitmo suspects to justice. Several days ago, a team of Obama legal advisers quietly met at the Pentagon with Hartmann and others involved in the Guantánamo trials, sources tell TIME. Hartmann vigorously defended them, arguing that they should continue regardless of the change in administrations. Though specifically asked to do so, Hartmann declined to discuss legal alternatives to the trials, a topic Obama's representatives had been eager to explore.

There are other changes that Hartmann would apparently like to see at Gitmo if the camp's legal system survives — changes detailed in a variety of internal memos circulating at the Department of Defense that TIME has obtained. The proposals — under discussion but not formally adopted — could be included in the Pentagon's official "Manual for Military Commissions," a handbook of rules for the controversial proceedings. (The former officer overseeing that project reports to Hartmann, who helped select him for the job.)

The new rules under consideration would make it easier for government prosecutors to gather evidence that could be used to build cases against the suspected terrorists. One proposal calls for getting rid of the "psychotherapist-patient privilege" for Guantánamo prisoners because, as the document explains, it "greatly restricts the government's access to mental health records." The same argument is made for the "physician-patient privilege" so that detainee medical records might be used at trial. The U.S. Supreme Court has long upheld both privileges for Americans under most circumstances.

A second proposal argues that prisoners at Guantánamo should be compelled to attend their own trials because "the government has a legitimate interest in the accused's presence ... [in part to promote] the appearance and actuality of legitimacy in the proceedings." A variety of legal analysts told TIME that such a policy could mean the forcible extraction from cells of Guantánamo prisoners who might refuse to attend trial, as some have indicated they will.

Last spring, Hartmann attended a high-level Pentagon meeting where he made the case that detainee medical and intelligence records should be available to the military court, according to several people who attended the session. When objections were raised that Hartman's recommendations would undermine medical treatment at Guantánamo by turning the camp's doctors into agents of law enforcement and the prosecution, Hartmann engaged in what was described as a loud and prolonged argument.

A similar account of Hartmann's aggressiveness comes from Navy Captain Patrick McCarthy, a senior lawyer who worked closely with the general and gave a sworn, 45-page statement earlier this year that was obtained by TIME. The deposition describes Hartmann demanding prosecution access to all sorts of sensitive records, notably those of the International Committee of the Red Cross, which has conducted private visits to hundreds of Gitmo prisoners. An ICRC spokesman told TIME the organization would strongly oppose use of its Guantanamo reports in court as a breach of confidentiality and a threat to its humanitarian mission.

The deposition goes on to say that Hartmann wanted to gain access to sensitive U.S. "videotapes of foreign delegations meeting with their nationals" at Guantánamo. Foreign intelligence and security officers have made numerous visits to the high-security prison, but the U.S. has been reluctant to discuss records of the sessions — or even to confirm that such records exist. Several U.S. allies were reportedly angered to discover that these meetings had been recorded without advance warning or permission. Some defense lawyers allege that foreign security agents threatened prisoners to gain their cooperation in the meetings while U.S. authorities failed to warn prisoners that their statements were covertly videotaped and might be used against them in court.

This week the 9/11 trial judge is expected to hear more testimony that Hartmann improperly interfered in that case, stressing political arguments and headline-grabbing tactics in preparing the case for trial. Guantánamo's former chief prosecutor, Air Force Colonel Morris Davis, has also described under oath how Hartmann wanted to try "sexy" cases with "blood on them" to attract public attention and vindicate the camp's legal process. Hartmann denied that charge in an interview with TIME several months ago.

As a result of that and other testimony, military judges found that Hartmann had breached legally mandated impartiality and shown bias against defendants. They barred him from any participation in three important trials at Guantánamo. At that point, Hartmann moved from his job as the Pentagon's top independent legal adviser on the trials to become the principal administrator and point of contact with the incoming Obama Administration.

A spokesman for Hartmann said the general was not available for interviews and would have no comment. Deputy Secretary of Defense Gordon England, the Pentagon's second highest official, did issue the following statement to TIME: "Misunderstandings of the military commission process have led to confusion and controversy. In this environment, BGEN Tom Hartmann has been the steady hand to ensure that the process is open, fair and just. I am grateful for his strong, focused and effective leadership during these dangerous and challenging times." England, who reports to Pentagon boss Robert Gates, is expected to leave in the coming weeks.

So is Hartmann. But his legacy will live on. A few weeks ago, a military judge brushed aside strong opposition from Hartmann's prosecutors and freed Osama bin Laden's driver, held at Guantanamo for nearly seven years. Then a federal judge appointed by George W. Bush demanded the liberation of five Algerian-born prisoners also held at Guantánamo since 2001. The reason: evidence of their purported crimes is lacking. On January 26 — six days after Obama's inauguration — a Guantánamo court is scheduled to begin hearing the case of Omar Khadr, who was taken into custody by American forces at age 15. He will be the first "child-soldier" to face trial as a war criminal in American history.