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Evidence From Waterboarding Could Be Used in Military Trials

By Josh White
Washington Post Staff Writer
Wednesday, December 12, 2007

The top legal adviser for the military trials of Guantanamo Bay detainees told Congress yesterday that he cannot rule out the use of evidence derived from the CIA's aggressive interrogation techniques, including waterboarding, a tactic that simulates drowning.

Air Force Brig. Gen. Thomas W. Hartmann, who oversees the prosecutors who will try the detainees at military commissions, said that while "torture" is illegal, he cannot say whether waterboarding violates the law. Nor would he say that such evidence would be barred at trial.

"If the evidence is reliable and probative, and the judge concludes that it is 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 another country 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 Geneva Conventions, 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 custody after the Sept. 11, 2001, attacks. The CIA announced last week that it destroyed videotapes 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 commissions chief 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 waterboarding because he believes that the technique produces unreliable information. Davis was invited 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 told his team of about two dozen prosecutors and analysts that they probably would run across evidence that resulted from waterboarding and wanted to make it clear that it would never be presented in a courtroom.

"In my opinion, evidence derived by waterboarding is not reliable, and I took it off the table," Davis said. "I think the vast majority of people were relieved. 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 embarrassment to 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 questionable information, it should not be used in a court of law.

Prosecutors, who plan to present between 80 and 90 cases, have reviewed evidence on dozens of Guantanamo detainees and concluded, according to Davis, that waterboarding was used on only "a handful" of them. Declining to discuss classified information, he said it is very clear in the intelligence reporting which techniques were 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'd be pitching a fit.

"If we saw Saddam Hussein doing waterboarding to one of our guys, we'd be planning the mission to do something about it," he said.

After yesterday's hearing, Graham, a reserve Air Force lawyer, said he believes Davis is right and that "no military judge would ever entertain the idea of allowing evidence from waterboarding."

Charles D. "Cully" Stimson, a former deputy assistant secretary of defense for detainee affairs, said he suspects that some of the information derived from waterboarding 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."

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