An excerpt from Tuesday's Senate Judiciary Committee hearing
SEN. Linsday GRAHAM, R-S.C. I think it is incumbent upon us to have a hybrid process, because if we don't, the initial decision is a de facto life sentence. And I am proud of this process. And when it comes to your side, General Hartmann, if there is an allegation that the evidence in question is tainted because it's a result of torture, it is my understanding the military judge must exclude any evidence that violates the torture statute; is that correct?
AIR FORCE BRIG GEN. Thomas HARTMANN Any statement obtained through torture is inadmissible.
SEN. GRAHAM And as to an allegation of coercion, which our enemy is trained to allege --al Qaeda operatives are trained into the American legal system. They know exactly what to say. It's my understanding at Guantánamo Bay the military judge will have a hearing regarding the allegation of coercion and will decide whether or not the evidence is reliable and should go to the finder of fact. Is that correct?
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GEN. HARTMANN Reliable, probative, and in the best interest of justice.
SEN. GRAHAM And that judicial decision by that judge can be appealed to the civilian courts?
GEN. HARTMANN That's correct. It can be appealed to the civilian courts after going through the military process.
SEN. GRAHAM It is my understanding that every detainee at Guantánamo Bay, Senator Durbin, will have their day in federal court; that every decision by the military will be reviewed by the D.C. Circuit Court of Appeals, and that is ongoing right now.The difference I have with you, my friend, is I don't want to turn over to the federal judges in this country the ability to determine the enemy for us in the first instance, because they're not trained to do so. That is a military decision.
But I do not mind any judge in this -- any appellate court in this land looking over the shoulder of these gentlemen here to make sure they get it right. I think that is the sweet spot for this country. Now, when it comes to whether or not there's political influence on these trials, Senator Feinstein, I want to get to the bottom of this.
Now, I know Moe Davis and I know you I've been an Air Force JAG for 25 years. I respect you both. And I want to find out the best I can what's going on down there. But I would like to just tell my good friend Senator Durbin, if we close Guantánamo Bay -- and maybe we should -- where do we send them and what do we do with them? And the only thing I ask of my colleagues is that as we try to correct the process and improve it -- and I think there's ways that we can go forward to make it better -- please don't lose sight that the people that we're dealing with, the truly guilty, are warriors, not domestic common criminals.
And those who've been caught up in this net of trying to find out who the enemy is, some of them are probably either on the fringes or just at the wrong place at the wrong time, and that's been the nature of war as long as man has been engaged in war.
What I'm looking for is not the outlier case where they went back to killing Americans -- because if you do that, nobody ever gets released -- or the idea that they're all victims and just at the wrong place at the wrong time. All we can hope to find as a nation is a process that will be flawed, but still adheres to our values. And I think we're very close to that process being correct in terms of us being at war. Now, one of the issues facing this country is waterboarding.
General Hartmann, do you believe waterboarding violates the Geneva Convention?
GEN. HARTMANN I was asked that earlier, Senator. And with regard to this entire issue, we start with the following premise: torture is illegal in the United States.
SEN. GRAHAM We have a downed airman in Iran. We get a report that the Iranian government is involved in the exercise of waterboarding that downed airman on the theory they want to know when the next military operation may occur. What would be the response of -- what should be the response of the uniformed legal community regarding the activity of the Iranian government?
GEN. HARTMANN I'm not equipped to answer that question, Senator.
SEN. GRAHAM You are.
GEN. HARTMANN I will tell you the answer to the question that you asked in the beginning, Senator, and that --
SEN. GRAHAM You mean you're not equipped to give a legal opinion as to whether or not Iranian military waterboarding -- secret security agents waterboarding downed airmen is a violation of the Geneva Convention?
GEN. HARTMANN I am not prepared to answer that question, Senator. I am --
SEN. GRAHAM Thank you. I have no further questions.