Posted on 12/20/2003 1:03:57 AM PST by Destro
JUDGE MAY: Are we in open session? Yes. 20 There are two -- three matters, potentially, which we have to 21 address at this stage. The first is the extent, if any, it is appropriate 22 with this important witness to have any evidence given under Rule 89(F), 23 he dealing with the accused very substantially on conversations, some of 24 which have been in dispute, in some cases heavily in dispute. And it 25 would therefore seem to us to be appropriate that those matters should be
Page 30363
1 dealt with in open session. 2 We are concerned at the evidence which it is proposed to be given 3 about the conflict - I'm referring to the end of the statement - and the 4 amount of resultant cross-examination which there must be, in fairness, if 5 the evidence is given. 6 And finally, we have to deal with the admissibility of the book as 7 a whole. 8 [The witness entered court] 9 JUDGE MAY: General Clark, I'm sorry you've been brought in. 10 There is a misunderstanding. But it doesn't matter because we're going to 11 have a debate about the extent of your evidence and how much we're going 12 to admit; and unless anybody objects, it seems to me, if you don't mind 13 sitting, listening, it may be no harm is done. 14 THE WITNESS: I have no objection, Your Honour.
...........................
1 JUDGE MAY: Thank you. 2 THE ACCUSED (Milosevic): [Interpretation] Mr. May. 3 JUDGE MAY: Yes, Mr. Milosevic. 4 THE ACCUSED: [Interpretation] I don't quite understand the 5 position of this witness since my understanding was that he would be 6 testifying in closed session and that you described that as a temporarily 7 closed session, and then, in the meantime, representatives of the 8 government of his country may be able to review the transcript, to approve 9 some of it, to redact some of it possibly, and only then to release it to 10 the public. I am not aware of any legal court in the world delegating its 11 authority of this kind to any government. This would be the first time 12 for any such thing to happen. Of course, you consider yourself to be a 13 legal court.
14 JUDGE MAY: We are not going to argue this point. We have made 15 our order. The reason that the government have any rights in the matter 16 at all is this, that in order to provide information to this Court, it is 17 occasionally - and I stress occasionally - necessary for governments to do 18 so, and they are allowed to do so under our Rules on certain terms, and 19 these are one of the terms which has been followed in this case. 20 Yes, Mr. Nice. Perhaps we should begin, and we will ask General 21 Clark to take the declaration if he would. 22 MR. NICE: May I diffidently remind Your Honour that you were 23 going to make some rulings. I didn't know if you intended to make them 24 before the witness started his evidence. No. Very well. My 25 misunderstanding.
15 JUDGE MAY: Before you begin, Mr. Milosevic, there are some 16 matters the Trial Chamber has to decide. 17 [Trial Chamber confers] 18 JUDGE MAY: Mr. Milosevic, before you begin cross-examining, you 19 should know that there are parameters in this case beyond which you cannot 20 go. We've already made an order which restricts the scope of 21 cross-examination. I'm not going to go into the reasons for it again. It 22 is limited to the statement which the witness has given, which means that 23 you are restricted in a way that you are not restricted with other 24 witnesses, because then you're allowed to ask any relevant matters. 25 You're restricted in this case to the witness's evidence. So you can give 1 -- ask him questions, of course, about what he's said here but not about 2 other evidence. He's given no other evidence against you apart from the 3 matter which General Clark has dealt with here. 4 So your cross-examination in this case is limited. 5 We have refused to admit the book. It's not part of the evidence. 6 We therefore will not allow some free-ranging cross-examination through 7 it, but you may, if you are entitled to do so, and that will be a matter 8 of relevance, you can, if you wish, ask General Clark about passages of 9 the book which are related to his evidence, and that largely will be -- 10 not entirely will be the matters which are already underlined. 11 So subject to those matters, of course you may conduct your 12 cross-examination, but you will be stopped if you go beyond those 13 particular bounds. 14 We've considered the time that you should have. We have in mind 15 that you should have some two and a half hours, if you so wish, to 16 cross-examine, and it's now for you to begin.
17 THE ACCUSED: [Interpretation] Mr. May, I don't understand at all 18 how you can limit my cross-examination to two and a half hours.
19 JUDGE MAY: Well, we would look at the time that we've given you. 20 It will be subject to others' convenience, but also if you use the time 21 properly and you want extra time, we would, of course, consider extending 22 it, but it depends on your use of it and it seems to me two and a half 23 hours should be adequate to deal with the limited matters which the 24 witness has given in evidence.
25 THE ACCUSED: [Interpretation] Very well, Mr. May. I see now that 1 you're introducing some restrictions linked to the witness's book, and the 2 witness's book is linked to the credibility of this witness, which means 3 that I couldn't question the witness even in relation to matters that have 4 to do with his credit. Is that what it means or am I after all allowed to 5 ask certain questions along those lines?
6 JUDGE MAY: You know exactly what you've been allowed to do. You 7 must ask questions within those limitations.
8 THE ACCUSED: [Interpretation] Very well, Mr. May. You will 9 probably allow me to ask at least some questions.
10 Cross-examined by Mr. Milosevic: 11 Q. [Interpretation] General Clark, in your book you say that the NATO 12 military action Yugoslavia in the spring of 1999 could not be called a 13 war.
14 JUDGE MAY: I don't think we're going to have that debate. That's 15 precisely what I've been talking about. You're not allowed a free-ranging 16 discussion about the NATO action. You're limited to the evidence which 17 the witness has given.
18 THE ACCUSED: [Interpretation] Mr. May, a fundamental question here 19 relates to the NATO strike against Yugoslavia. You're not allowing me to 20 ask the witness about the war against Yugoslavia, of which he was in 21 command, then I don't know really what you're letting me ask him about.
22 JUDGE MAY: Yes. The witness hasn't given any evidence about that 23 war. He has -- the Prosecution have chosen to call him on a limited 24 number of issues, and he has given evidence about a limited number of 25 issues. We will have to look elsewhere for evidence about those broader 1 issues which, if relevant for us to consider, you want to put in front of 2 us. You can't do it through this witness.
3 MR. MILOSEVIC: [Interpretation] 4 Q. General Clark, is it true that in an interview that you gave for 5 The New Yorker on the 17th of November, you said that the war that you 6 waged was technically illegal?
7 JUDGE MAY: Now, that is precisely the point. He's given no 8 evidence about the legality of the war. He's not gone into that in his 9 evidence. Now, concentrate on what evidence that he's given here and 10 you'll be allowed to ask the questions, but you can't go into these 11 broader questions with this witness. If they're relevant, we'll hear them 12 from another one.
13 THE ACCUSED: [Interpretation] I cannot understand, Mr. May, what 14 you are allowing me to ask this witness about. You're not letting me ask 15 him anything.
16 JUDGE MAY: Let me explain. The general has given evidence about 17 a series of meetings that you had with him. You yourself had with him in 18 1995, including comments which you have made. He has given evidence about 19 further meetings in -- at a time leading up to the events in the Kosovo 20 indictment. He has given evidence about meetings after Racak. Now, those 21 are all things, and they are meetings at which you were present, upon 22 which the witness has given evidence and you can cross-examine. The other 23 matters are dealt with, insofar as they are dealt with, by other 24 witnesses, and you can ask them about it. But as far as this witness is 25 concerned, and I thought it was plain, you can ask him about his evidence, 1 you can ask him about the statement he's made here, and your 2 cross-examination will be so confined. 3 So you can begin, for instance, by asking about the meeting in 4 August 1995 with Mr. Holbrooke and various other people. You can ask 5 about that, if you wish, if you challenge. If you don't challenge the 6 witness's evidence here, why then there's no need to cross-examine him.
7 THE ACCUSED: [Interpretation] Mr. May, of course I challenge the 8 testimony of General Clark, because he has distorted the facts to a 9 maximum degree, and I will show that, but it is absolutely not clear to 10 me --
11 JUDGE MAY: You better get on with it. Put the questions. You 12 make these allegations, the witness should have the chance to answer them. 13 General Clark -- just a moment. You've just made an allegation of 14 a sort which a witness should have the opportunity of dealing with. 15 General Clark, the accused alleges to us that he challenges your 16 evidence. Of course he's entitled to do that. But what he does say is 17 that you've distorted the facts about which you've given evidence. He 18 makes that allegation. Perhaps you would like to answer the allegation.
19 THE WITNESS: Well, Your Honour, I gave the testimony to the best 20 of my recollection. The facts are exactly as I recollect them, and those 21 are the facts I gave the Court.
22 JUDGE MAY: Yes, Mr. Milosevic.
23 THE ACCUSED: [Interpretation] Mr. May, just in order to clarify 24 the basic attitude towards me in relation to this witness, is it in 25 dispute that General Clark was in command of NATO during the war against 1 Yugoslavia? And is it disputed that that was his most important role in 2 everything that related to Yugoslavia? And is it in dispute that you're 3 not allowing me to ask him anything at all about that?
4 JUDGE MAY: That's right. Now, ask questions -- if you wish to 5 ask questions, concentrate on those matters that you've been told about 6 several times. Now, what we're doing is wasting time going over this. 7 You've heard the ruling, and you must abide by it, and you're taking up
8 your time, you see, arguing.
9 THE ACCUSED: [Interpretation] So I cannot ask him anything at all
10 about the war waged by NATO against Yugoslavia. Is that what you're
11 saying?
12 JUDGE MAY: Yes.
13 THE ACCUSED: [Interpretation] Well, Mr. May, that really is an
14 example showing that this is truly nothing more than a farce.
15 JUDGE MAY: Well, if you've got no questions for the witness, you
16 needn't ask them, but if you want to, you must get on with it now. I also
17 restrict your comments too.
18 THE ACCUSED: [Interpretation] Very well. Very well, Mr. May. I
19 will move on to questions that you will allow, though I think this is
20 scandalous that you are not allowing me to ask General Clark --
21 JUDGE MAY: That's exactly what I meant when I said you must
22 restrict your comments and not waste time.
23 MR. MILOSEVIC: [Interpretation]
24 Q. General Clark, you started your testimony with your biography;
25 isn't that right?
Page 30419
1 A. That's correct.
2 Q. In your biography, your CV, I see that you were involved - and I
3 don't know how to put it - in some indirect relationships with your former
4 president, Clinton.
5 THE WITNESS: Your Honour, I don't understand what the question
6 is.
7 JUDGE MAY: Don't -- General, if you don't understand a question,
8 you don't have to answer it.
9 MR. MILOSEVIC: [Interpretation]
10 Q. Very well, General. Were you for many years a very close friend
11 of your former president, Clinton?
12 JUDGE MAY: What is the point of all this? Now, you've been told
13 to answer the questions -- I mean, to ask relevant questions which the
14 witness can answer. That's not such a question.
15 THE ACCUSED: [Interpretation] Mr. May --
16 JUDGE MAY: May I point out to you you have yet to challenge once
17 a specific point in the witness's evidence.
18 THE ACCUSED: [Interpretation] Mr. May, it is relevant because in
19 the CV, it is stated that he only knew his former president superficially,
20 whereas he personally told me in Holbrooke's presence that they were very
21 close friends from Arkansas, that they went hunting together, that they
22 consult one another about everything. So it's quite different from what
23 is represented in his CV, and I want to establish that the witness is not
24 telling the truth starting from his CV.
25 JUDGE MAY: Yes. The witness -- you can ask the witness about
Page 30420
1 that. It's a conversation you allege you had with him.
2 Perhaps, General, you could just deal with that.
3 THE WITNESS: Your Honour, I did not tell President Milosevic that
4 I was a close friend of President Clinton. I've never been hunting with
5 President Clinton, and I did not and do not consult with President Clinton
6 about everything.
7 My relationship with President Clinton was formal, it was correct.
8 He was the president of the United States, I was an officer in the United
9 States army. I worked, during the time I was involved in the Dayton
10 negotiations, with the chairman of the Joint Chiefs of Staff, and as the
11 Supreme Allied Commander Europe, I had a dual reporting chain. I reported
12 through the chairman of the Joint Chiefs of Staff to the secretary of
13 defence, and I reported to the NATO Military Committee and to the NATO
14 Secretary-General.
15 MR. MILOSEVIC: [Interpretation]
16 Q. So you are denying that in that building that you call a hunting
17 lodge, when Holbrooke, you, and I were walking around, that both you and
18 Holbrooke were speaking about your direct and close relationships with
19 President Clinton. So you're saying that you didn't say that and that we
20 didn't talk about that?
21 A. Your Honour, I have no recollection of any such conversation, and
22 I've never told anybody that I had a direct and close relationship with
23 President Clinton.
I have no difficulty that cross-examination is limited to matters "relevant" to the inquiry. However, generally, at least in American jurisprudence, one can attack the credibility or bias of a witness by using prior inconsistent statements or matters which would explain why they may testify in favor of one party or the other. Generally, statements about the matters testified to found in a book written by the witness would be relevant and material in examination.
I would agree that Slobo did not serve himself well by being his own counsel or by failing to address the issues you stated. Nonetheless, it appears that the right to cross-examine the witness was so limited as to make it almost nonexistent.
The issues of national security and the right of an accused to face his accuser cause great difficulty in Western law as one requires great secrecy and the other openess and the exposing of evidence. That is in part the reason that spies rarely are prosecuted and deals are made between countries to swap caught intellegence agents, spies and traitors.
I have every reason to believe that the trial of Saddam will be a media frenzy with his attempts to get a last shot at the U.S. But that is in part the "cost" of trials as opposed to summary execution. While it would be best for the U.S. that Saddam be tried by a military tribunal as far as "keeping a lid" on the defendant, I think that the better result would be if the Iraqi people try him. It will send a strong message to tyrants that their own people may one day stand in judgment of them. May keep a few criminals from trying to subjugate their people. Also, it will be much more "acceptable" to the people of the world that the Iraqis mete out the justice in Saddam's case than a group of United States military officers.
Also, if the witness is a part of the conversation he is testifying about, the conversation isn't hearsay, at least not to my understanding of the matter.
There is another term for "he said/she said" type of evidence when no witnesses oher than the two who had the conversation are present.
Sorry, but it's as simple as that.
His credibility, on the other hand, could be and was questioned by Milosevic, who goaded him about the deaths of Americans on Mt. Igman, implying that their deaths were Clark's fault - producing a copy of the purported safe passage fax from Mladic he referred to would have been a fine move on Milosevic's part, but, alas, he missed his opportunity.
As to Saddam, I'm leaning towards an Iraqi trial under adult supervision, lest we get some gaudy pseudolegal Ceaucescu fiasco, which would serve no purpose, IMO.
Sorry, but it's as simple as that.
This is really a difficult concept for you to wrap your mind around, isn't it?
As to who's a dupe of whom, yeah, like, whatever.
I agree with your point here, but Clark is a PROSECUTION witness. If the prosecution had not called him I agree that Slobo would have no reason to question him.
Does Clark have direct knowledge that Slobo killed someone illegally or ordered someone to do so? I don't think so, so he shouldn't be a part of this trial.
But once the prosecution calls him, his credibility is certainly germane, as would his own illegal activity in the matter in question. Hopefully Saddam's prosecution will not be so stupid as to call George Bush as a witness.
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