United States vs. Mohammed Jawad -- deposition of Patrick M. McCarthy

From Wikisource
Jump to: navigation, search
United States vs. Mohammed Jawad — deposition of Patrick M. McCarthy  (2008) 

UNITED STATES VS. MOHAMMED JAWAD: PROCEEDINGS OF A MILITARY COMMISSION =[edit]

The deposition officer called the R.M.C. 702 session to order at Arlington, Virginia, at 0911 hours, 3 July 2008, pursuant to the attached memorandum for LTC Martha L. Foss, USA, DAJA-LA dated June 30, 2008.

The following were present at the proceedings:

MAJOR DAVID FRAKT, US AIR FORCE -DETAILED DEFENSE COUNSEL
LCDR KATHERINE DOXAKIS, UNITED STATES NAVY, DETAILED ASSISTANT DEFENSE COUNSEL
LTC. DARREL VANDEVELD, ASSISTANT PROSECUTOR, UNITED STATES AIR FORCE
COLONEL LAWRENCE MORRIS (VIA TELEPHONE), ASSISTANT PROSECUTOR, UNITED STATES AIR FORCE
STAFF SERGEANT PATRICIA WILLIAMS, DEFENSE PARALEGAL
STAFF SERGEANT GUADALUPE ONA, PROSECUTION PARALEGAL

PROCEEDINGS PROCEEDINGS[edit]

LTC. FOSS:

This deposition is convened by the order of Military Judge Colonel Steven Henley dated 26 June 2008 pursuant to RMS 702-D-1. I am Lieutenant Colonel Martha Foss, United States Army JAG Corps. I was appointed as the deposition officer by Miss Susan Crawford on 30 June 2008.

Counsel, if you will please state your ranks, names and positions for the record, starting with the government.

LTC. VANDEVELD:

Sir, do you want to go first, Colonel Morris?

COLONEL MORRIS:

I'm Colonel Lawrence Morris. And I'm detailed to this case as an assistant prosecutor by myself in my capacity as the chief prosecutor.

LTC. VANDEVELD:

Lieutenant Colonel Darrel Vandeveld. I'm present. Colonel Morris is present by telephone.

MAJOR FRAKT:

Major David Frakt, Detailed Defense Counsel. That's F-R-A-K-T.

LTC. DOXAKIS:

Lieutenant Commander Katherine Doxakis, Assistant Detailed Defense Counsel.

LTC. FOSS:

I caused service of the notice of this deposition on 1 July 2008. Sir, at this point, I would like to swear you in, if you'll please stand.

Whereupon,

PATRICK M. McCARTHY, having been duly sworn by the Deposition Officer, was examined and testified as follows:

LTC. FOSS:

For the record, please state your name and your rank and your current position.

THE WITNESS:

My name is Patrick M. McCarthy, M-C-C-A-R-T-H-Y. I'm a Captain O-6 in the United States Navy. I'm the Staff Judge Advocate of Joint Task Force Guantanamo, Guantanamo Bay, Cuba, and have been in that capacity since 2 May 2006.

LTC. FOSS:

Sir, at this time I'm going to turn the questioning over to the defense counsel.

EXAMINATION BY COUNSEL FOR DEFENSE BY MAJOR FRAKT:[edit]

Q.

Good morning, Captain McCarthy. Thank you for coming. I had nothing to do with the logistics of this, so I apologize for bringing you up here.

A.

That's all right.

Q.

Can you tell me your prior SJA positions?

A.

I was first the Staff Judge Advocate in Okinawa, Japan from November 1992 until July of 1995. I was then the legal advisor to the commandant of midshipmen, which is a very similar position of a Staff Judge Advocate from July 1995 until August of 1997. I was the Staff Judge Advocate to Iceland Defense Force from June of 1998 until July of 2001. And then I've been the Staff Judge Advocate of the Joint Task Force Guantanamo from 2 May 2006 to projected 25 July 2008.

Q.

And sir, at these SJA positions, were you Staff Judge Advocate to a general court martial convening authority in any of these positions?

A.

I was the Staff Judge Advocate to a general court martial convening authority, authorized general court martial convening authority in Okinawa. However, we deferred all of our court martials to the Commander, Naval Forces Japan up in Yokosuka, but we had the authority to convene. In Iceland, I believe we had GCMA authority. In Guantanamo, we have not been delegated that authority, and it was not delegated. We were not a GCMA authority in Annapolis.

Q. How many military commission legal

advisors have you dealt with in your capacity?

A.

Two. By legal advisors, you mean legal advisor to the convening authority?

Q.

Yes, sir.

A.

Or the predecessor to the convening authority.

Q.

The legal advisor to the convening authority under the current military commission system?

A.

One. Well, no. I take that back. Two, because there was a short time when General Hartmann's predecessor was in the job.

Q.

Now, we have not previously discussed the Jawad case, have we?

A.

No.

Q.

And we have not discussed any possible unlawful influence by Brigadier General Hartmann? unlawful influence by Brigadier General Hartmann?

A.

No. However, I want to make clear that in my office, I have a Viper system that allows me to hear and see what is going on from the courtroom from a perspective --we have a camera that zeros in on the accused, so it allows us to keep up to date of what's going on in that courtroom, and I have witnessed what's going on in that courtroom, and I witnessed the last hearing, a fair chunk of that last hearing.

Q.

Yes, sir. But you and I haven't had any personal discussions?

A.

No.

Q.

On the phone?

A.

No.

Q.

Through email?

A.

No.

Q.

Our prior interactions were limited to a couple of brief meetings in the hallway outside your office at JTF Guantanamo?

A.

Having to do with the logistics of comings and goings to meet with Detainee Jawad, ISN 900. That's correct.

Q.

So, sir, I just wanted to --I don't necessarily know what you may have to offer that may be relevant to this deposition, and I apologize in advance that some of the questions may pertain to matters of which you have no knowledge, but it's because we really haven't had the opportunity to talk before. I'd like to talk a little bit about your interactions with Brigadier General Hartmann. Could you give us an overview of what your dealings have been with General Hartmann since he took over as legal advisor to the convening authority last July?

A.

Well, I'm more than willing to do that if I'm ordered to do that by the judge, but I want to limit my answers to what the judge's order was, which is that I discuss SVTC. I am more than willing to discuss my interaction with respect to SVTC and General Hartmann, but I don't think that I'm in a position, given the order and the nature of that order, to go further than that.

Q.

And you're referring by SVTC, you mean secure video teleconference?

A.

That's correct.

MR. FRAKT:

Madam Deposition Officer, it's the defense position that although the order is fairly specific, that Colonel Henley did intend for to us have more latitude in questioning this witness. And in support of that belief, yesterday we had requested that Colonel Henley authorize the release of Brigadier General Hartmann's testimony so that we could prepare questions based on that testimony.

And I informed Colonel Henley that we were viewing Captain McCarthy essentially as a rebuttal witness to General Hartmann's testimony. And given that Captain McCarthy observed that testimony, he may have some relevant information beyond merely the existence of a secure video teleconference, so I would request to be given a bit of latitude to ask questions beyond merely these video teleconferences.

LTC. FOSS:

Did you receive the testimony of General Hartmann as you requested?

MAJOR FRAKT:

We did. Colonel Henley authorized the release. It was provided to both prosecution and defense.

LTC. FOSS:

Government, is there any objection to --sir?

COLONEL MORRIS:

There sure is, yes. If Colonel Henley had meant what the defense meant here, he would have put it in writing, and he didn't do so. The fact that he released the testimony doesn't mean he indulged any wider questioning. And if he did, he clearly had the authority and would have meant to have done so and would have done so.

Secondly, to question the relevance of bringing in the testimony of somebody who sat in his office and watched it, Colonel Henley was on the record as correcting the defense earlier when the defense had its own witness watch testimony, and then come in and presume to give an opinion about that.

As you well know, the rules of court normally forbid somebody other than an expert witness from watching testimony and then coming in and giving an opinion about it. And then we would question the relevance of Captain McCarthy's testimony in that regard. If you want to let them do that, then, of course, we need time to prepare for whatever response we need to have. We are prepared to examine the witness based on the judge's order.

LTC. FOSS:

Any other response, defense?

MAJOR FRAKT:

Well, yes. First, the judge's admonishment to a scheduled witness not to watch other witnesses is really not relevant to --I mean, there is certainly nothing improper about Captain McCarthy observing the proceedings from his office when he had no idea whatsoever that he might

ever be involved as a witness in this case, nor did the defense have any intent or knowledge that he may have relevant information at that point.

But, you know, here’s my proposal. I would like to be able to ask the questions. Captain McCarthy, as we know, is on his way to Italy for his next assignment. In our request for this deposition to the judge, we cited the fact that Captain McCarthy may not be available for trial. He has traveled all the way here from Guantanamo, and to ask him three or four questions, I mean if the questions are not relevant and he doesn't have a relevant answer, then the judge can take care of that later. Not admit it.

Strike it. What have you. But to, you know --I have a good faith basis for asking a number of questions that I believe are relevant. I'd like to just let them --let the objections be stated to the individual questions.

LTC. FOSS:

Major Frakt, I've got my order. If counsel would like to adjourn from the deposition to then try to contact the military judge to get clarification since Captain McCarthy is here, I will entertain that request. Otherwise, I will follow the orders that were given to me, which is very clearly stated in the order from the military judge.

COLONEL MORRIS:

All right.

MAJOR FRAKT:

All right. We request an adjournment to try to contact the judge to seek clarification.

LTC. FOSS:

That request is granted. At this time, we'll go off the record at 9:28. (Discussion off the record.)

LTC. FOSS:

The time is now 10:02. We took a break to allow the deposition officer to Strike it. What have you. But to, you know --I have a good faith basis for asking a number of questions that I believe are relevant. I'd like to just let them --let the objections be stated to the individual questions.

LTC. FOSS:

Major Frakt, I've got my order. If counsel would like to adjourn from the deposition to then try to contact the military judge to get clarification since Captain McCarthy is here, I will entertain that request. Otherwise, I will follow the orders that were given to me, which is very clearly stated in the order from the military judge.

COLONEL MORRIS:

All right.

MAJOR FRAKT:

All right. We request an adjournment to try to contact the judge to seek clarification.

LTC. FOSS:

That request is granted. At this time, we'll go off the record at 9:28. (Discussion off the record.)

LTC. FOSS:

The time is now 10:02. We took a break to allow the deposition officer to confer with legal advisor to the commissions. And based on that information, defense counsel submitted a request to the military judge to request expansion of the order of the deposition. confer with legal advisor to the commissions. And based on that information, defense counsel submitted a request to the military judge to request expansion of the order of the deposition.

In the meanwhile, we are going to continue the deposition within the parameters of Colonel Henley's order dated 26th June. If we hear any response back from the military judge during this deposition, based on his order, we will expand the testimony if the military judge orders it.

If he --if we either do not hear from him by the time this deposition closes or he denies the defense request, then we will close the deposition at the conclusion of Captain McCarthy's testimony. At this point, sir, I just want to remind you that you're still under oath.

Major Frakt, you can continue with your questioning within the original military judge's order of 26 June.

Q.

Thank you, ma'am. If I could just get one point of clarification. You said you consulted with military commission legal advisor. Can I ask you -military commission legal advisor. Can I ask you -SERGEANT

ONA:

The legal advisor to the military judge.

LTC. FOSS:

The legal advisor to the military judge.

MAJOR FRAKT:

So the military commission's judiciary staff essentially.

LTC. FOSS:

That's correct. Yes.

BY MAJOR FRAKT:[edit]

Q.

Captain McCarthy, you mentioned that you had a chance to observe part of the 19 June hearing at which Brigadier General Hartmann testified.

A.

I did.

Q.

Did you see his testimony?

A.

I did. Part. Part of it. Yes.

Q.

All right. Do you believe Brigadier General Hartmann's testimony was completely accurate?

COLONEL MORRIS:

Objection. Objection. Objection. First, relevance. Secondly, there is such breadth to that question that I can't imagine what the reply would give us.

Q.

I'll focus the question a bit more. One of the answers that -

LTC. FOSS:

Major Frakt, I'm going to interrupt. I believe this is specifically what you've requested the military judge to clarify that you sent the email to --and government counsel, you can correct me if I'm mistaken --but I think this is the heart of what you've sent to the military judge requesting to seek clarification regarding the order of 26 June.

MAJOR FRAKT:

Well, actually, ma'am, this goes directly to the video teleconferences, but I'll ask a more specific question so we don't draw the ire of Colonel Morris.

Q.

I asked General Hartmann if he had monthly video teleconferences with senior leaders, including general officers from SOUTHCOM, from Joint Task Force Guantanamo, and he said that that was --that was not true, that that did not happen. Have there been regular video teleconferences with general officers?

A.

To my knowledge, Brigadier General Hartmann has had secure video teleconference or SVTC with senior leadership JTF Guantanamo and U.S. Southern Command on three occasions this calendar year.

Q.

Would that be February 7th, March 24th, and June 25th?

A.

I believe it was on or about March 4th -excuse me, February 4th, March 24th and June 25th. That's correct.

Q.

And was the June 25th video teleconference rescheduled from the June 12th?

A.

That is my understanding.

Q.

So that it was scheduled for the week prior to the June 19th hearing and rescheduled to the June 25th, the week after the June 19th hearing?

A.

That is my understanding.

Q.

Were you present in any of these video teleconferences?

A.

I was present for the very beginning of the February video teleconference.

Q.

Was there any reason that you did not remain at that video teleconference?

A.

General Hartmann came on the screen, saw that there were individuals in the room, including myself that were not general or flag officers and immediately said to Admiral Buzby, “Admiral Buzby, I need to call you in your office. Can you please go to your office?” Admiral Buzby left, came back, and directed that General Hartmann has directed that I leave the video teleconference room.

Q. Did you find that unusual?
A.

Yes.

Q. And why?
A.

Because as the legal advisor to the convening authority, it seems to me that General Hartmann should always be willing, and in fact, his primary point of contact within a command should be the legal advisor of that command. That's how my experience has been with command legal advisors and their communication.

Q. And General Hartmann indicated in his

testimony that he viewed his role as being equivalent to a Staff Judge Advocate. Did you hear him say something like that? Did you hear that part of his testimony?

A.

I did hear that part of his testimony.

Q. And so did you feel that he was acting

consistent with the role of -

COLONEL MORRIS:

Objection. Relevance.

LTC. FOSS:

Counsel, keep it within the parameters of the military judge's original order, please.

Q. Do you have any knowledge of the subject

matter of these video teleconferences?

A.

I only have secondhand knowledge because in accordance with General Hartmann's demand, I was not included in those video teleconferences.

Q. Can you share your secondhand knowledge?
A.

The secondhand knowledge I have is that during the video teleconferences, General Hartmann would talk about particular upcoming cases, charges that were pending, as well as his plans for future cases, so how many cases per month were going to be charged and what the future outlook appeared to be.

Q.

And this is coming from being back briefed by an attendee at the conference? by an attendee at the conference?

A.

That is correct. Either Admiral Buzby, General Crawford, General Zanetti or Admiral Thomas.

Q. And you have no reason to doubt what any

of those general officers may have told you.

A.

No. I do not.

Q. So after this February 7th VTC, where you

were invited to leave, did you make any effort to attend the future conferences?

A.

No. I was --I was told you're not allowed to attend. It's my understanding that General Hartmann reiterated his GO/FO, which stands for --it's GO/FO which stands for general officer flag officer only demand in connection with the SVTC, so I understood the demand that General Hartmann had. My command understood it. And I felt no need to try and push back against them.

Q. Do you have any other information that, of

any kind about these video teleconferences that you can share?

A.

Only that the legal personnel, legal staff in U.S. Southern Command was also denied access to the, to the video teleconferences by General Hartmann.

Q.

And that's another O-6 legal advisor?

A.

That's correct.

Q. Can you identify the name of that

individual?

A.

Captain DeRenzi. And then I named the individuals at U.S. --JTF Guantanamo that were present for these video teleconferences at U.S. Southern Command. The individuals present were Admiral Harris, General Ellis, Admiral Parker, I believe those are the three individuals who have taken them at SOUTHCOM. And they have firsthand knowledge of what was discussed at the conferences.

Q. And is it true that these video

teleconferences were set up at the request of General Hartmann?

A.

That is my understanding.

MAJOR FRAKT:

That's all the questions I have on video teleconferences.

LTC. FOSS:

Sir, do you have any cross-examination?

COLONEL MORRIS:

Please.

LTC. FOSS:

Go ahead, please.

COLONEL MORRIS:

Please.

LTC. FOSS:

Go ahead, please.

CROSS-EXAMINATION BY COUNSEL FOR GOVERNMENT BY COLONEL MORRIS:[edit]

Q. Captain McCarthy, have you personally

examined your records or the admiral's records back to last July to determine the dates of any teleconferences?

A.

Back to, you mean July of '07? You mean since -

Q.

July when the --correct, when General Hartmann took his position, since July of '07?

A.

We have looked at our records, and our records reflect that there were three teleconferences held and those were the ones already discussed, February, March and June.

Q. And the June one occurred after the

hearing at which he testified, is that correct?

A.

That is correct. That is correct.

Q. So there were two video teleconferences

between the 2nd of July and his testimony on the 19th of June, is that correct?

A.

That is correct.

Q. When you talked -
A.

Well, if I could say this, Colonel.

Q. Please. Go ahead.
A.

To the best of my knowledge, there were two.

Q.

I understand. When you talked to your bosses afterwards, I assume they talked to you freely on the assumption or understanding that it was fine to share that information that was discussed during the teleconferences?

A.

I don't know exactly what they thought. I don't know that I got all the information discussed on the teleconferences, but we did have back briefs. I will say that in this last video teleconference, I did not get a back brief from Admiral Thomas.

Q.

The one that occurred after the hearing?

A.

That is correct.

Q.

But on the ones that, the two that occurred before the hearing, you had what you considered professional discussions with your superiors after those teleconferences?

A.

That's correct.

Q.

Now, when Lieutenant Delaparra gave me what she understood to be a message from you on the 18th of June that you would feel obliged to testify for the defense if General Hartmann testified in a manner that you found improper or inconsistent, did that relate to this issue or to other concerns you had about General Hartmann?

A.

I don't know what Lieutenant Delaparra said to you precisely on that date.

Q.

And we'll again --we'll establish her testimony on her own. But did you give direction to Lieutenant Delaparra to tell me to be prepared for your testimony for the defense if General Hartmann testified in a manner that concerned you or that you found objectionable?

A.

No. I did not direct her to do that.

Q.

You didn't tell her to give any warning to the prosecution that you were a potential defense witness in this case then?

A.

Colonel Morris, what do you mean by I was a potential defense witness. I believe I sent you an email, didn't I, that day? email, didn't I, that day?

Q.

No. Lieutenant Delaparra came and told me that she had a message from you to tell me, advised me that you were a potential defense witness pending how General Hartmann testified in the hearing that was to occur the next day.

A.

Colonel, I believe I sent you an email that day when Lieutenant Delaparra came back and said she had this conversation with you explaining my position. I would recommend that you pull out that email. This has nothing to do with SVTC. I'm not going down this road with you, Colonel, and if you'd like me to go, if you would like me to pull that and have a discussion with you, I certainly can.

MAJOR FRAKT:

And the defense would request a copy of it which has not been provided in discovery in clear violation of discovery rules of exculpatory evidence.

Q.

Am I right, then, Captain McCarthy, that those concerns had nothing to do with the video teleconference issue?

A.

The --what I said to you --I'd have to look at the email and tell exactly what the concerns were. I don't know if I had specific concerns about a teleconference issue. I don't recall thinking earlier that day or previously that there was a concern specifically with respect to teleconference issues.

COLONEL MORRIS:

Colonel Foss, no further questions from the government at this time.

LTC. FOSS:

Do you have any further questions?

REDIRECT EXAMINATION BY COUNSEL FOR DEFENSE BY MAJOR FRAKT:[edit]

Q.

Prior to General Hartmann's testimony, did you have any idea that he would deny the existence of video teleconferences?

A.

Absolutely not.

Q.

Did that come as a surprise to you that he denied it?

A.

I want to be clear here. You asked General Hartmann a question, General Hartmann made a denial based upon the question that you asked, I suppose. And I don't have an opinion as to whether his particular denial, based upon your particular question, is surprising.

Q.

But you feel that --well, strike that. No further questions on this line. We would request before excusing the witness to have an opportunity to see if the judge has received our request.

LTC. FOSS:

Colonel Morris, any further questions from the government?

COLONEL MORRIS:

No, ma'am.

LTC. FOSS:

Sir, at this point, we are going to go ahead and go off the record. It is 10:18.

(Recess.)

LTC. FOSS:

It is now 10:48.

COLONEL MORRIS:

So do I need to respond, then? Does that mean Colonel Henley is awaiting a response from us?

LTC. VANDEVELD:

That's how I read it. Do you have email capability?

COLONEL MORRIS:

I do. I'm typing as I sit here. Let me --I was trying to -

LTC. FOSS:

Go back off the record.

(Recess.)

LTC. FOSS:

The time is currently 10:51. In the break, the defense submitted a request through the legal advisor to the military judge. And we will attach to the deposition the request, as well as the response from Miss Bley, which is date stamped Thursday, July 3rd at 10:40 a.m. in which the military judge agreed to expand the original scope of the deposition subject. Obviously, any government -

LTC. FOSS:

Go back off the record.

(Recess.)

LTC. FOSS:

The time is currently 10:51. In the break, the defense submitted a request through the legal advisor to the military judge. And we will attach to the deposition the request, as well as the response from Miss Bley, which is date stamped Thursday, July 3rd at 10:40 a.m. in which the military judge agreed to expand the original scope of the deposition subject. Obviously, any government -any government objections of relevance may be noted on the record as the defense proceeds. Defense, you may proceed with any additional questions you have right now.

EXAMINATION BY COUNSEL FOR DEFENSE BY MAJOR FRAKT:[edit]

Q. Thank you. Sir, did Brigadier General

Hartmann ever talk to you or in your presence about Colonel Morris Davis and his views of him as a chief prosecutor?

A.

No.

Q.

Did he ever talk to you or talk in your presence, talk about Lieutenant Colonel Britt and his views of Lieutenant Colonel Britt as a deputy or acting chief prosecutor? presence, talk about Lieutenant Colonel Britt and his views of Lieutenant Colonel Britt as a deputy or acting chief prosecutor?

A.

No.

Q. Did Brigadier General Hartmann ever

indicate to you or in your presence that he was, he had a role in selecting the cases to be charged before the military commissions?

A.

General Hartmann in or about November of 2007 briefed me on a plan for, a way forward on the number of cases that would be charged in each month. He has a very large foldout chart that's probably three or three and a half, four feet long. It's a well-known chart and it has on that chart the kind of lay down of how many cases will be proceeding and sort of monthly times as they will proceed. I do not recall if there were actually ISNs or internment serial numbers assigned to those cases, so it's kind of a bar chart that reads left to right and it's a big calendar and it just lines, it has big lines on it as to when cases will be proceeding and that kind of thing.

Q. Did Brigadier General --excuse me. Now,

was that a product that you believe or he indicated that he had prepared?

A.

He prepared that product. Yes.

Q. Did General Hartmann ever seem to be

assuming the role of chief prosecutor to you?

A.

I don't know that --I don't know what the particular role of the chief prosecutor is. I'm not in that office. General Hartmann clearly gave the impression that he was the one that ran and runs commissions, yes.

Q.

Did Brigadier General Hartmann ever mention to you or in your presence his views about the use of classified evidence and the declassification process?

A.

Not to my recollection.

Q.

Did he ever mention his views about the use of evidence obtained by coercion?

A.

Not to my recollection.

Q.

Brigadier General Hartmann indicated that he would occasionally permit his frustrations to become apparent from time to time. Did you ever witness Brigadier General Hartmann allowing his frustrations to become apparent?

A.

Yes.

Q.

Do you recall what the subject matter was?

A.

These were on meetings, questioning the joint task force, JTF Guantanamo's concern about the production of medical records, the production of intelligence materials, and the first meeting when he --when he showed me that long line chart.

Q.

And he was expressing displeasure with what exactly?

A.

He did not like that JTF Guantanamo had gone to U.S. Southern Commmand and raised questions about how to best produce this information. He did not like the fact that I personally was involved. He was remarkably aggressive on a personal level to me during these meetings.

Q.

And his preferred approach was what?

A.

His preferred approach was to aggressively question JTF Guantanamo personnel, and then when I attempted to interject and correct misunderstandings that were clear in the conversation, he would say things like, “who asked you? No one has asked you. You just be quiet.” Things along those lines. things like, “who asked you? No one has asked you. You just be quiet.” Things along those lines.

Q.

And with regard to the medical records, what was he asking to be done?

A.

At the time, the question was how to structure a mechanism to release medical records in a way that provided the prosecution with the records that they needed to satisfy their legal requirements while also maintaining a certain level of independence for JTF Guantanamo, so that it did not appear that the medical care providers of Guantanamo were actually information collectors.

Q.

Brigadier General Hartmann indicated that he did not watch or observe any of the testimony presented at the hearing on June 19th, 2008 prior to his testimony. Do you have any information that would suggest that that may have been inaccurate?

A.

No. The testimony would have been technically available in the building in which he was located, but I have no personal information that he in fact took advantage of that and watched any of that testimony.

Q.

What knowledge do you have of his whereabouts in terms of what building he was located?

A.

My understanding was that he was located in his office in AV 29 for a good deal of that day. And then later on, he came over to AV 34, which is the building in which the courthouse is located, and he was in the --the distinguished visitor lounge and there is a large monitor in that lounge and that was turned off.

Q.

On June 19th, was there any issue with General Hartmann holding up an airplane that was bound for Fort Belvoir?

A.

I have no knowledge about that.

Q.

Did Brigadier General Hartmann ever mention the Jawad --Mohammed Jawad case either by name or descriptively as the Afghan kid who threw the hand grenade? Did he ever mention that to you or in your presence?

A.

No.

Q.

In addition to these video teleconferences, are you aware of any face-to-face meetings with General Hartmann and senior leaders regarding the military commissions? regarding the military commissions?

A.

I have knowledge of two meetings that occurred. At least two.

Q.

What do you recall about those?

A.

In that November meeting, I --that I discussed, we were led to believe that General Hartmann was going to come down and brief me as the SJA and a couple of other appropriate staffers there on JTF Guantanamo, as well as General Crawford, who was the acting commander at the time. Admiral Buzby was off the island.

In fact, General Hartmann demanded that he alone speak with General Crawford. We were kept out of the room, and it was only after the meeting when I raised a concern that General Hartmann agreed to come back into the room and without General Crawford being there, briefed me on that long slide show.

Then on or about January 8th or 9th, General Hartmann and some of the OMS staffers came down. And I recall that there was a premeeting between General Hartmann and Admiral Buzby and General Crawford concerning OMC matters. Again, I was not permitted to be in the room, so I can't give you details on what was discussed.

Q.

Brigadier General Hartmann during his testimony disagreed with the characterization of his management style as nano management. Do you believe that that is an accurate characterization of his management style?

A.

Well, I don't know what nano management is, but General Hartmann -

COLONEL MORRIS:

Object, please.

LTC. FOSS:

I will note the objection, but

would direct the witness to answer the question.

THE WITNESS: It has been my experience in working with General Hartmann that he is involved at a level of detail that no other general or flag officer that I've ever worked for or with has ever been involved at.

Q.

General Hartmann was directed by the convening authority not to perform any duties as a legal advisor while a complaint that Colonel Morris Davis had filed was being investigated. That complaint and the investigation has come to be known as the Tate investigation after Brigadier General Clyde Tate. Are you generally familiar with that? complaint and the investigation has come to be known as the Tate investigation after Brigadier General Clyde Tate. Are you generally familiar with that?

A.

I've heard of that. Yes.

Q.

And the time frame would have been from approximately late August until early October 2007 when Colonel Davis submitted his resignation. Are you aware of any activities by General Hartmann during that time frame, late August 2007 to early October 2007, where he was acting as the legal advisor?

A.

I would have to go back and --back and check my records. I have no specific recollection of that occurring, but I just can't answer that question.

Q.

All right. The Tate investigation admonished Brigadier General Hartmann not to get too deeply involved in prosecutorial matters. And Brigadier General Hartmann said he felt that he had complied with that guidance and did not become too deeply involved in prosecutorial matters. Do you believe that to be true from your observations?

A.

I guess I have trouble with the term prosecutor matters. I don't know how that's defined, so it's difficult for me to answer that question.

Q.

Was General Hartmann closely identifying himself with the prosecutorial effort?

A.

I believe in the areas where JTF Guantanamo raised questions, he was. He would closely identify himself with prosecutorial efforts.

Q.

Did you ever observe General Hartmann taking credit for moving the process forward or for charging certain cases?

A.

Yes.

Q.

Can you expand on that?

A.

In those meetings I described earlier, General Hartmann made reference to the fact that we need to get these things moving. “We need to get these things moving. They have been languishing,” or words to that effect, long enough. “We need to get going here.”

Q.

But did he take any credit for jump-starting the process?

A.

I believe, I can't specifically recall him using the words to the effect of, “I did this, this is all because of me,” or words to that effect.

Q.

Was there a general impression that he was taking credit?

A.

There was a general impression.

COLONEL MORRIS:

Objection to his general knowledge of the general impression. He can answer for himself.

THE WITNESS: My impression as the staff JTF of GITMO that General Hartmann was responsible for moving forward with military commissions in all respects.

Q.

Brigadier General Hartmann stated --are you still with us, Colonel Morris?

COLONEL MORRIS:

Can I ask you to hold for just a second, sir?

(Discussion off the record.)

Q.

Brigadier General Hartmann stated that he didn't feel that charging a juvenile was an issue worth mentioning to the convening authority. Did the issue of charging child soldiers or juvenile combatants ever come up in any of your interactions with General Hartmann?

A.

Not to my recollection.

Q.

General Hartmann also when I asked him about the frequent flier sleep deprivation program initially didn't appear to understand what I was talking about. Did you ever discuss or are you aware of any discussions with General Hartmann about the so-called frequent flier program or -

A.

I'm not.

Q.

All right. Aside from being removed from those meetings as you described, did you ever see General Hartmann act in a way that was inconsistent with the role of a Staff Judge Advocate or legal advisor?

COLONEL MORRIS:

Objection. Basis for knowledge.

LTC. FOSS:

Can you rephrase the question, counsel?

MAJOR FRAKT:

Well, I asked him if he had personally observed. Well, he has established the foundation that he has been a legal advisor, Staff Judge Advocate several times, including general court martial convening authority, SJA, so I think he has familiarity with the roles and responsibilities of that.

COLONEL MORRIS:

Objection, because he's asking for opinion as an expert, and the witness has not been so qualified and shouldn't have the burden of answering such a question.

LTC. FOSS:

If you can rephrase the question in a way that does not --I mean, are you asking for his expert opinion based on his own experiences?

MAJOR FRAKT:

I'm asking for him to describe anything else unusual that could have been construed as unlawful influence by those who were present.

LTC. FOSS:

That's not --I mean, I understand you asked it in a question way, but I don't see - personally observed. Well, he has established the foundation that he has been a legal advisor, Staff Judge Advocate several times, including general court martial convening authority, SJA, so I think he has familiarity with the roles and responsibilities of that.

COLONEL MORRIS:

Objection, because he's asking for opinion as an expert, and the witness has not been so qualified and shouldn't have the burden of answering such a question.

LTC. FOSS:

If you can rephrase the question in a way that does not --I mean, are you asking for his expert opinion based on his own experiences?

MAJOR FRAKT:

I'm asking for him to describe anything else unusual that could have been construed as unlawful influence by those who were present.

LTC. FOSS:

That's not --I mean, I understand you asked it in a question way, but I don't see -

Q.

Let me try one more time. Captain McCarthy, did any other actions that General Hartmann took as the legal advisor strike you as unusual?

A.

The --as I described it, it struck me as unusual that General Hartmann dismissed Staff Judge Advocates from the room when speaking directly with senior leadership of other commands. It's not been my experience that Staff Judge Advocates speak with senior leadership about the commands, particularly not without their counsel present. Other than that, from a --from a Staff Judge Advocate perspective, I don't think that I have seen anything that I would deem to be unusual.

Q.

What about berating your subordinates?

A.

Well, again, from a Staff Judge Advocate perspective, I would not deem that to be unusual. I don't have personal knowledge of him berating his subordinates. He did not berate my subordinates. He berated me in front of my subordinates which I found to be offensive, and I came up with, you know, ways to work around that.

He is a general officer and I respect that rank deeply. And I worked out a way with my client to --to overcome that and continue to move forward in a way that I thought was professional and was constructive and helped the process move forward.

Q.

You mentioned earlier that you were aware of General Hartmann being in certain buildings on June 19th. Were you aware of any other personnel that were accompanying him throughout the day that we might be able to talk to who would have observed what he was doing?

A.

Well, he has an aide, an aide-de-camp who was assigned to him. He was with him. I saw him a couple of times that day. He was with him. I'm sure that he could probably provide additional information. But I have no personal knowledge that he watched any part of the testimony on that day.

MAJOR FRAKT:

I understand. I'll turn him over to you, Colonel Morris.

LTC. FOSS:

Sir, do you have any questions? Proceed, sir.

CROSS-EXAMINATION BY COUNSEL FOR GOVERNMENT BY COLONEL MORRIS:[edit]

Q.

On the issue of watching the testimony, am I correct that your testimony is he had the opportunity to do so had he wanted to do so?

A.

The building is technically capable of carrying that. And yes, he would have had the opportunity had he wished to. And again, I have no knowledge that he did.

Q.

I understand. On the issue of, as you responded to your counsel or to counsel's question about identifying himself with prosecution efforts, isn't it right that a number of the issues that you and he dealt with each other on, and some of the ones that became controversial or matters of debate were not prosecution specific, but had to do with the process and had equal impact on defense, as well as prosecution?

A.

The issues that we dealt with --I'll go down the five issues that became most contentious. One was joint meetings for the, for defense counsel, defense military commissions counsel and habeas counsel. That's one.

The second one was access to medical records. The third one was access to intelligence information. The fourth one was access to videotapes of foreign delegations meeting with their nationals. And the fifth one was access to ICRC records. In each of those, in each of those discussions, the issue became the requirement of the prosecution to get access to those records so that the prosecution could meet its legal obligation to provide exculpatory information for the defense, provide discoverable information for the defense, but also to do their own due diligence with respect to those cases.

Now I want to be clear here. I am not an expert on the --on what influence is proper or appropriate or improper and inappropriate with respect to the legal advising convening authority for military commissions. I'm merely stating my interaction with General Hartmann on those issues. And the judge, I suppose, can figure out, you know, whether it's right, wrong or indifferent. I did not have those conversations by and large with the head prosecutor, and I did not have records. The third one was access to intelligence information. The fourth one was access to videotapes of foreign delegations meeting with their nationals. And the fifth one was access to ICRC records. In each of those, in each of those discussions, the issue became the requirement of the prosecution to get access to those records so that the prosecution could meet its legal obligation to provide exculpatory information for the defense, provide discoverable information for the defense, but also to do their own due diligence with respect to those cases.

Now I want to be clear here. I am not an expert on the --on what influence is proper or appropriate or improper and inappropriate with respect to the legal advising convening authority for military commissions. I'm merely stating my interaction with General Hartmann on those issues. And the judge, I suppose, can figure out, you know, whether it's right, wrong or indifferent. I did not have those conversations by and large with the head prosecutor, and I did not have those conversations by and large with the head defense counsel. I had those conversations with the legal advisor to the military commissions, to the convening authority. those conversations by and large with the head defense counsel. I had those conversations with the legal advisor to the military commissions, to the convening authority.

Q.

And during a number of issues, as you've recounted it, he was pushing for access to information so that, among other things, Brady or exculpatory type material could be provided to the defense?

A.

That's correct.

Q.

And were not most of the matters of disagreement or discussion between the two of you issues having to do with how to make that happen as opposed to whether it should happen?

A.

That's a fair statement. Yes.

Q.

And to look at --just to take one of those several as an illustration, to look at the issue of defense counsel access, isn't it accurate to say that General Hartmann was pushing to maximize defense counsel access to the facilities and to their clients, not to reduce it?

A.

That's fair. Yes. That's a fair and accurate statement. Absolutely.

COLONEL MORRIS:

Colonel Foss, I have no further questions at this time. accurate statement. Absolutely.

COLONEL MORRIS:

Colonel Foss, I have no further questions at this time.

LTC. FOSS:

Major Frakt, based upon the cross-examination of the government counsel, do you have any further questions.

MAJOR FRAKT:

Nothing further.

LTC. FOSS:

Just one administrative matter, I did not swear you in as the reporter, but if we can swear you in, and then if you could state your name for the record.

Whereupon,

SUSAN L. CIMINELLI,

was sworn to report the proceedings correctly.

MAJOR FRAKT:

I would just ask if there is --the judge indicated, I think, he was going to actually write an expanded order, so if he does, that should be appended. But other than that, nothing further.

LTC. FOSS:

Colonel Morris, anything further from the government?

COLONEL MORRIS:

No, ma'am.

LTC. FOSS:

Thank you. This deposition is in recess. (The proceedings adjourned at 11:16 a.m.)

LTC. FOSS:

Thank you. This deposition is in recess.

(The proceedings adjourned at 11:16 a.m.)

United States
vs.
Mohammed Jawad
CERTIFICATE OF CORRECTION

The record of deposition in the above case, which was ordered by Military Commission convened by Convening Order (RMC)702 Office of the Convening Authority, Office of Military Commissions, Washington, DC, Dated 26 June 2008, at Arlington, Virginia, is corrected by

the insertion on page _____, immediately following

line _____, of the following:

AUTHENTICATION OF CORRECTION[edit]

I have examined the correction to the record of trial in the above referenced case and find it accurately reports the proceedings. I authenticate the correction in accordance with R.M.C. 1104.

Date
Stephen R. Henley
Colonel, U.S. Army
Military Judge