1 Thursday, 9 September 2004

2 [Open session]

3 [The witness entered court]

4 [The accused entered court]

5 --- Upon commencing at 9.08 a.m.

6 JUDGE ROBINSON: Mr. Kay to continue with your

7 examination-in-chief.

8 MR. KAY: Thank you, Your Honour.

9 WITNESS: JAMES JATRAS [Resumed]

10 Examined by Mr. Kay: [Continued]

11 Q. Yesterday we broke, Mr. Jatras, when we were looking at the

12 document produced in your first bunch of exhibits, the report of the

13 select subcommittee. Could that be put back in front of the witness,

14 please. It's the large document. In fact, put all the exhibits in front

15 of him, please.

16 We were looking at page 200, which is section 4 of the document,

17 dealing with the conclusions of the select subcommittee, committee on

18 international relations for the US House of Representatives report of

19 October 10th, 1996.

20 Are you at that page, Mr. Jatras, page 200?

21 A. Yes, sir.

22 Q. The conclusions here, as we know, are those conclusions which have

23 been subject to declassification. That's right, isn't it?

24 A. That's correct.

25 Q. But in paragraph 2, it stated: "The subcommittee feels the need

1 to share with the American people as best it can the results of the

2 investigation."

3 Is that right?

4 A. That is correct.

5 Q. And there was a hearing in which evidence was heard by the select

6 subcommittee; is that right?

7 A. That is my understanding.

8 Q. Documents produced and witnesses questioned by counsel?

9 A. Yes.

10 Q. And even those appearing in front of the select subcommittee would

11 have had their own counsel?

12 A. That would be -- generally under an American procedures, that

13 would be the choice of the person, whether to retain counsel.

14 Q. Yes. The third paragraph: "It is our hope that the

15 administration will relent in its efforts to conceal the history of this

16 foreign policy fiasco, so that they will see a reasonably complete version

17 of the full report."

18 And that's what we have here, isn't it?

19 A. That's correct. And of course, the blacked out portions are those

20 that the administration would have concealed or removed for release of the

21 unclassified report.

22 Q. Thank you. The heading of number 1 is: "The administration's

23 Iranian green light policy gave Iran an unprecedented foothold in Europe

24 and has recklessly endangered American lives and US strategic interests."

25 We dealt with the issues that were concerned there to remind

1 everyone, yesterday, which concerned American troops being involved in

2 IFOR and SFOR, as well as the strategic interests.

3 "The Clinton Administration, unable to convince the United Nations

4 to follow its lead in lifting the Bosnian arms embargo and unwilling to

5 abandon its foreign policy philosophy of assertive multilateralism, found

6 itself in 1994 without a vehicle it found acceptable to implement a change

7 in foreign policy it believed to be in the national interest, the lifting

8 of the Bosnian arms embargo. Accordingly, the administration was

9 receptive when its ambassador to Croatia, Peter Galbraith, a man noted by

10 his colleagues for his passionate pursuit of courses, free-wheeling style,

11 and an open attitude towards Iran, pressed policy makers to consider a

12 scheme whereby Iran would be allowed to act as the US surrogate in

13 providing military assistance to the Bosnians."

14 Looking at that there -- in fact, the CIA were not involved in

15 this;

16 is that right?

17 A. They were not informed at the time the decision was made, as I

18 understand it. That is to say, it was through White House channels,

19 through Mr. Lake, from Mr. Galbraith, the ambassador in Croatia at the

20 time, and ultimately a decision made by the president, and only after that

21 decision was made were the defence department and the CIA told. What

22 involvement they may have had after that fact, after the decision had been

23 made, I can't say.

24 Q. No. The policy developed through completely unofficial channels,

25 if you like, in which it was obscured from the eyes of those with interest

1 in the House of Representatives and elsewhere?

2 A. Yes, that is correct. I think one thing is worthy of note here,

3 which has bearing on my paper in January of 1997. You'll note in the

4 initial sentences of the paragraph just below conclusion 1 that the

5 committee appears to be criticising the Clinton Administration for not

6 securing an end to the arms embargo or finding some other way to provide

7 weapons to the Sarajevo regime. That is to say, they agreed in substance

8 that we should be helping the Muslims in the conflict in Bosnia. They

9 disagreed with the way it was done through the Iranians. And this is why

10 I believe it did not focus at all, this report, on the other aspects that

11 I saw to bring out in the January 1997 paper, that is to say, the other

12 network which we would now refer to as Al Qaeda and the Islamist

13 orientation of the Izetbegovic government.

14 Q. You had become aware from your research in that exhibit we

15 produced first yesterday that there was another dimension to this, that it

16 wasn't solely Iran which had caught the focus of this particular

17 committee?

18 A. That's correct. And as I said, because of particular American

19 sensitivities surrounding our relationship with Iran, that was the focus

20 of the committee.

21 Q. So outside Iran, and this was something I attempted to deal with

22 yesterday, but it didn't make itself clear when I was questioning you,

23 outside Iran, the other interests were what, that was -- that you were

24 able to see were at work within Bosnia in the supply of arms or financial

25 support?

1 A. Or also bringing in volunteers.

2 Q. People?

3 A. Mujahedin. It was the network through the so-called charities,

4 like Third World Relief Agency. It has since been documented after 9/11

5 in many congressional hearings that are also public record that many other

6 such organisations were involved in this, and at the time it seems there

7 was very little objection raised by anybody on the American side,

8 including, by the way, from the committee.

9 Q. Now when you say "charities," we probably have in mind here

10 various UN-sponsored charities to deal with health, humanitarian relief,

11 refugee agencies. Are those the sort of charities we're talking about or

12 another dimension in the world of charities?

13 A. As you know, and again, I don't want to exceed the scope of what I

14 can directly attest to, but those who are knowledgeable about the global

15 terror network are aware that the funding mechanisms are applied to

16 activities that may include activities of the sort that you describe, in

17 addition to those that are violent, that we would describe as terrorism.

18 This is classically true of an organisation like, say, Hamas, which will

19 support terrorist activity on the one hand, but also then does support

20 schools and the hospitals and things of this sort, so that the activities

21 are mixed up together, and it's sometimes hard to not only trace the

22 source of the funding but even where the funding ultimately is disposed.

23 But again, this is something that is a matter of constant inquiry and

24 public record, not something that I have particular direct evidence of.

25 Q. Thank you. Let's look, then, at the next paragraph, and I'm going

1 to be concentrating on this particular conclusion and then quickly going

2 through the others. "The president's decision to give Iran a green light

3 in the Balkans allowed Iran to expand its economic and diplomatic

4 relations, as well as establish a military security and intelligence

5 presence so expansive it became the largest concentration of official

6 Iranians outside the Middle East. The consequences have been far-reaching

7 and pernicious. They persist to this day."

8 A. That is indeed what the committee found, yes.

9 Q. Are you able to say what was established there in terms when we

10 use -- the expression is used of "military security and intelligence

11 presence." Are you able to give us any idea of the extent or scope of

12 what was established, first of all, on the Iranian part of this issue?

13 A. Again, Mr. Kay, not beyond what the committee has documented here.

14 As I have said before, the significance of my reports not only here on

15 Bosnia, the January 1997 report, but I would say even more so the reports

16 I did on Kosovo, are the extent to which I have direct knowledge in the

17 sense that this was known or knowable to American officials. This report,

18 in some detail, shows what the committee had become concerned about

19 regarding the Clinton Administration's facilitation of Iranian influence,

20 which the committee found to be quite damaging to American issues, to

21 American interests in the way that you describe. The committee, for

22 reasons I can't explain, since I was not part of their deliberative

23 process, chose not to examine other presences, other assets in Bosnia

24 which I suspected or I believe as a policy analyst should be brought to

25 the attention of the Congress because they were at least as damaging to

1 American interests.

2 My testimony would be direct only insofar as my report is direct

3 contemporaneous, direct contemporaneous account of what was known on not

4 only the Iranian side, which is confirmed in this document, but also the

5 parallel, largely Saudi-supported network and also the character of the

6 Izetbegovic government. I would make the same assertion regarding the

7 papers on Kosovo, beginning with the one in August of 1998, indicating at

8 that time that the Clinton Administration had set itself on a course to

9 intervene militarily in Serbia.

10 Q. Looking at the next paragraph, and I mention it because Croatia is

11 referred to: "In Croatia, a government that had before the green light

12 been a consistent ally in the US's fight against Iranian-sponsored

13 terrorism was co-opted by the weapons it received in exchange for being a

14 staging point for the shipment of Iranian arms into Bosnia. As a result,

15 after the green light, there was a serious deterioration of cooperation

16 with the US, encountering very real and imminent Iranian-linked terrorist

17 threats. The US even now must cope with the consequences of Croatia's

18 developing what has been referred to as an all but out of control

19 relationship with Iran in the wake of the green light."

20 In summary, are you able to tell us what that is about?

21 A. Again, Mr. Kay, I cannot go beyond the substance of what is stated

22 in the report.

23 Q. It merely indicates that the Croatia had been used in this means

24 of avoiding detection in the supply of arms to Bosnia through Iranian

25 channels?

1 A. That is what is stated, yes.

2 Q. Yes. It says in the next paragraph, about the consequences being

3 much worse in Bosnia after the green light, Iran virtually overnight

4 became the unrivalled foreign benefactor of the Bosnian government: "As a

5 result, the Bosnian government became less secular and democratic and more

6 open in its embrace of a radical Islamic political agenda, acceptable to

7 Iran but inimicable to US national security interests and democratic

8 values."

9 JUDGE ROBINSON: I think, Mr. Jatras, you should just confirm what

10 is in the report, if you can. And if you have additional comments to

11 make, make them.

12 A. Yes. I will confirm the factual statements in the report as what

13 they purport to be. The committee examined this issue. They reached

14 certain conclusions. By and large, I would say those conclusions are

15 accurate insofar as this is my assessment as a policy analyst at the time,

16 not because I had direct knowledge of the matters under discussion. In

17 fact, I would quarrel with some of the conclusions, for example, the one

18 Mr. Kay just read, that the increasingly undemocratic Islamic orientation

19 of the Izetbegovic government was a result of this influence from Iran

20 because of the green light rather than an indication of what their

21 inclinations had been for some years, that that was in fact the

22 ideological orientation of the SDA from the beginning of the war. So, but

23 that, as I say, is a policy judgement rather than a matter on which I have

24 direct evidence, and if it please the Court, I would rather focus on the

25 reports which I issued about which I do have direct knowledge, which I

1 believe have direct bearing on the matter of this case, and accept that

2 the public reports which I have -- the committee reports which I have

3 acknowledged in the analyses which I have prepared for the policy

4 committee are, as I have cited them in the papers I prepared.

5 JUDGE ROBINSON: Mr. Kay, you'll no doubt take account of that.

6 MR. KAY: Yes. For reasons at this stage in relation to the

7 Defence, we take the view it's important to read these aspects into the

8 record, and I'm not going to read every word, but I'm going to -- I'm

9 moving through it in a particular way, and then we'll get on to the next

10 stage of this witness's evidence.

11 JUDGE ROBINSON: Very well, Mr. Kay.

12 MR. KAY:

13 Q. In the next paragraph, it was stated: "Somehow the administration

14 failed to see the short-term expediency of its Iranian green light was a

15 long-term curse on the Bosnian people."

16 That's concerned with the political issues in relation to what had

17 taken place; is that right?

18 A. That's correct, sir.

19 Q. And it's stated then in 1996: "Even now the administration is

20 having to cope with the fallout from its policy."

21 Further on in that paragraph: "Iranian influence in the highest

22 Bosnian ruling circles remains pervasive, and Iranian terrorist and

23 intelligence capabilities in Bosnia remain great cause for US concern.

24 The Iranians are biding their time and the radicalised Bosnian Muslim

25 political leadership may yet succeed in turning Bosnia into a radical and

1 authoritarian state."

2 It goes on in the report to criticise the president and those

3 working for him as poorly serving the administration; is that right?

4 A. That is what is stated, and again, I would note the careful focus

5 on the Iranians and avoiding mention of other radical assets that may be

6 present at the same time.

7 Q. Yes. And in terms of what happened, it's put this way, in

8 paragraph 4: "From the beginning, the administration realised the green

9 light policy was dynamite and so worked to implement it without

10 fingerprints."

11 And in relation to your role and your analysis, would you agree

12 with that comment that what had happened here was a cover-up that was not

13 meant to be generally known?

14 A. That is certainly what the committee is saying, and to that extent

15 I saw my role as an analyst at the policy committee, admittedly in

16 partisan circumstances, to be, so to speak, dusting the fingerprints that

17 the administration had sought to conceal.

18 Q. This had to be discovered rather than be declared by the

19 government?

20 A. It had to be discovered initially through press reports so that it

21 became a political issue which then was one that was focused on by the

22 relevant congressional committees.

23 Q. Yes. If we turn to page 204, because this might be of

24 importance: "At the time the administration was making high-minded

25 arguments about the need to respect both internationally agreed upon rules

1 and US allies, it was working assiduously behind the scenes to undermine

2 them."

3 And was that the issue here, that what was happening was in fact

4 not something that was official policy, nor policy that had been

5 recognised as a valid and appropriate policy through the allies of the US?

6 A. Well, certainly, and this relates to a characterisation you made

7 earlier that this somehow was not official policy. Clearly all those

8 engaged in the policy were themselves government officials and had the

9 power, if not the authority, to undertake what they did. At least in

10 American law, one of the questions would be was this technically a covert

11 operation? What laws and reporting requirements was it subject to? It

12 certainly was not one, though, that, as a policy matter and as a matter of

13 our alliance obligations was discussed with our allies or other partners

14 in the international community, except obviously the countries involved.

15 Q. And did the committee point out a number of public statements that

16 were made by administration officials which were in fact found to have

17 been not true; they were deceptions?

18 A. That's what the committee suggests, yes.

19 Q. And presumably you were aware of these public statements by

20 officials yourself whilst undergoing your analysis?

21 A. Yes.

22 Q. Secretary of State Warren Christopher: "The United States is not,

23 underline not, covertly supplying arms or supporting the supply of arms to

24 the Bosnian government."

25 National Security Council: "The US did not cooperate, coordinate,

1 or consult with any other government regarding the provision of arms to

2 the Bosnians. We have always made clear that we were abiding by the arms

3 embargo and that we expected other countries to do as well."

4 Again, department of state in response to questioning: "We are

5 certainly not contributing to it and we are certainly not turning a blind

6 eye," the blind eye being what was known and what was happening in Bosnia?

7 A. That's correct. And again, Mr. Kay, I would point out that the

8 committee is very selective in its choice of revelations on this matter,

9 that here, when it refers to Iranian influence, they're quite free in

10 exposing the fraudulent denials by administration officials, but, for

11 example, regarding the numerous reports received by -- numerous reports by

12 allied officers in Bosnia regarding flights landing at Tuzla for making

13 deliveries, this is addressed in both the House and Senate reports simply

14 by way of asking the relevant agencies if they knew anything about them,

15 receiving denials, and accepting those denials.

16 JUDGE ROBINSON: Flights from where?

17 THE WITNESS: We don't know. You all I can say is, again, not as

18 a matter of direct knowledge, but as an analyst following these reports,

19 some of these are described in the committee report and specifically in

20 the Senate report, which I guess has not been entered into the record, the

21 committees make note of these reports, describe who the officers were

22 making the reports and then show what action they took, which was to

23 inquire of the intelligence community and the Pentagon, receiving denials

24 and accepting those denials. So as I say, they're somewhat selective, it

25 seems to me, in deciding which administration assurances they consider to

1 be lies and which ones they consider to be the truth.

2 MR. KAY:

3 Q. Well, the issue of the denials and what happened went all the way

4 to the top, didn't it, because President Clinton, in response to a

5 question: If the US was involved in orchestrating the transfer of arms to

6 the Bosnian Muslims, said no?

7 A. I will not comment on Mr. Clinton's reputation for veracity.

8 Q. These sources are samples, aren't they, of the denials that you've

9 talked about and were all in various public documents and they're in fact

10 noted in this report?

11 A. That's correct. And you can see some of them are simply cited to

12 media reports.

13 Q. In section 7, the administration was criticised for deliberately

14 concealing the truth from Congress regarding the president's Iranian green

15 light decision, and it stated: "Despite protests to the contrary, in the

16 early months of this investigation, deputy Secretary of State, Strobe

17 Talbott, recently submitted to the subcommittee that the administration

18 had intentionally not told Congress of the green light it gave Iran in the

19 Balkans."

20 A. I'm sorry, Mr. Kay. Where are you looking at here?

21 Q. Section 7, page 205.

22 A. Okay. Yes. Yes. That is what the committee found.

23 Q. So this committee was also being misled. There was the misleading

24 beforehand and then there's the misleading to the Congress committee?

25 A. It was both public false denials and denials to the relevant

1 congressional committees.

2 Q. Section 8: "Several administration officials gave false testimony

3 to Congress on the development and implementation of the Iranian green

4 light policy."

5 A. Yes. And in fact, there was a cover letter to this report, one

6 that was submitted to the administration, asking for a justice department

7 investigation of several of these officials. It was responded to by a

8 letter from Attorney General Reno at the time, who found there was no

9 grounds for such investigation.

10 Q. The Congress committee required Ambassador Galbraith be

11 investigated?

12 A. They requested it.

13 Q. Yes. But Attorney General Reno did not proceed?

14 A. She did not.

15 Q. But the select subcommittee said it was truly disturbed that it

16 received testimony and statements from the National Security Advisor,

17 Anthony Lake, deputy National Security Advisor Samual Sandy Berger, deputy

18 Secretary of State Strobe Talbott and Ambassador Walker, that directly

19 contradicts Ambassador Peter Galbraith's sworn testimony with respect to

20 material issues before the subcommittee and Congress."

21 A. That's what the committee found, yes.

22 Q. "The subcommittee is further dismayed that sworn testimony

23 provided Ambassadors Peter Galbraith and Charles Redman, both before the

24 House International Relations Committee and the select subcommittee is not

25 supported by evidence uncovered through this investigation."

1 Are you able to help what that is about?

2 A. Again, not beyond what is stated in the committee report.

3 Q. Right. In section 9, it says: "Evidence that Ambassador

4 Galbraith played a significant supervisory role with respect to at least

5 one Iranian weapons transhipment shipment through Croatia. Galbraith's

6 goal in facilitating this transhipment was to effect political and

7 military conditions in Bosnia. There is also evidence that he had input or

8 advanced knowledge of the planning and operation of the Iranian weapons

9 pipeline that Iran used to ship arms and gain influence in the embattled

10 Balkans."

11 A. Yes. And again, that's in the context of the conclusion there in

12 number 9 --

13 Q. Yes.

14 A. -- that this may have been a covert operation which has specific

15 consequences in American law.

16 Q. 11, and this is the last passage I'll deal with in this

17 report: "The administration is holding its embarrassment behind the veil

18 of classification."

19 A. Well, you'll see there are a lot of blacked-out sections of the

20 report.

21 Q. Well, that's all we need deal with on that issue. And I'll move

22 on in your evidence now to --

23 JUDGE ROBINSON: Yes, Mr. Milosevic.

24 THE ACCUSED: [Interpretation] Mr. Robinson, your lawyer has been

25 spending the last two hours wasting time, without allowing the witness in

1 actual fact to broach the main subjects that he has direct knowledge of

2 and that he worked and was involved in. And the witness himself said

3 yesterday when he mentioned Al Qaeda and the global network, in respect of

4 Kosovo and Bosnia and so on --

5 JUDGE ROBINSON: I've stopped you because we have a procedure that

6 we will follow. You do not set the procedure here. The Chamber sets it.

7 And the procedure is that Mr. Kay is now examining. When he has finished,

8 I will invite you, as I have done before, to consider asking us to allow

9 you to put questions. That would be the appropriate time.

10 Mr. Kay, please continue.

11 MR. KAY: And on one matter, Your Honour, as it does need to be

12 addressed: I am here and ready to take instructions from the accused if

13 and when he chooses to do so. I have been put in this position as a

14 result of what has happened in this case, where he has been found unfit,

15 through medical reasons, to represent himself, and without his

16 instructions, I am attempting to put his case as we can see from his

17 opening, from his own cross-examination previously, on the issues in this

18 trial. And documents and exhibits that are produced from his witnesses,

19 which have been made available by his team and have been disclosed in this

20 case are the only materials that I have to go on. And in those

21 circumstances, I have to use my judgement on those materials as the best

22 way to deal with them. And some of the issues raised this morning, it

23 seemed to us, were relevant and pertinent to his defence, because his

24 cross-examination has been on the lines of the Iranian influence in

25 Bosnia, the Mujahedin, and this is a public document that this witness was

1 producing on his behalf as part of his Defence Exhibit material.

2 Now, the witness went on to deal with Al Qaeda and the other

3 terrorist organisations and has been at pains to point out that this is

4 all from his own research, and he wasn't there at the time, and this is as

5 far as it can go. There are other issues about the credibility of those

6 dealing with Mr. Milosevic, and this issue also goes to the US

7 administration at the time, about which we've heard a lot said, and about

8 their comments concerning Mr. Milosevic.

9 So for those reasons, I have embarked on this line of

10 cross-examination, doing my best, without instructions from him. But he's

11 willing to appoint his own lawyer as the order makes entirely clear, and

12 we would encourage that. We have not volunteered for the role that we

13 have been given, but in the circumstances, it seemed appropriate that we

14 were the team to have to pick it up.

15 JUDGE ROBINSON: Thank you, Mr. Kay. The Chamber finds no fault

16 with the way that you are examining the witness. The Chamber recognises

17 the difficulty. The situation would have been much better had the accused

18 given you instructions, and the accused will not be allowed to interrupt

19 the examination-in-chief. If he wishes, he can instruct you. And again,

20 if he wishes, he can, at the end, invite us to consider allowing him to

21 put questions. And that's the procedure which we will follow.

22 Please proceed.

23 MR. NICE: On an entirely separate point, Mr. Kay having indicated

24 that he's finished the questions he wants to ask about this document, the

25 Chamber will remember observations made yesterday by me challenging the

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1 admissibility of the document. I think the Court was very careful in the

2 way it invited the document to be dealt with, it not yet having formally

3 being admitted as an exhibit. Our objections to its admissibility stand.

4 In our submission, this is a document that cannot assist the Chamber at

5 all. It certainly can't support any factual findings of the matters

6 concluded by the committee, nor can it be relied upon, in our submission,

7 to undermine the evidence, for example, of Mr. Galbraith. I will say no

8 more by way of repetition of my objection. It's entirely a matter for the

9 Chamber. Our position is that this is not an exhibit which should be

10 admitted in this trial.

11 JUDGE ROBINSON: We will deal with it at the end, but I just pause

12 to say that in my own view, it is very relevant to the case put forward by

13 the accused in cross-examination as to the help that the Muslims received

14 from Iran.

15 MR. NICE: As Your Honour pleases.

16 JUDGE ROBINSON: We will deal with it at the appropriate time.

17 MR. KAY: Much obliged.

18 Q. Looking at the other exhibits that you've produced, Mr. Jatras,

19 document number 2, we've considered already, and in it you told the Court

20 in evidence yesterday about how you were looking at the other side, the

21 extra support outside Iran that there had been to the Bosnian government

22 from other Islamic sources. Is that right?

23 A. That is correct.

24 Q. And we also touched on that a moment ago in your evidence, and I

25 have no need to take that document any further. And we shall now move to

1 Kosovo.

2 I've got an order here, which is not my order, how they came to

3 me, and I won't deviate from it because I don't know if there is any great

4 significance. But it's not quite chronological. Document 3 that we look

5 at is dated March the 31st, 1999, and it's headed: "The Kosovo liberation

6 army: Does Clinton policy support group with terror, drug ties?

7 A. Yes.

8 Q. Is that a document written by you?

9 A. Yes, it is.

10 Q. And again, that is in your function as advising the Republican

11 policy committee on international relations?

12 A. That is correct. If I could put that into context. This paper

13 dated March 31st, 1999, while the Kosovo war was under way, was the last

14 of four papers I issued on that topic. Two other ones, dated

15 February 22nd and March 23rd, are also in this group of exhibits here.

16 For some reason, the other paper that is also cited on page 1 of the

17 March 31st paper and in the other two as well was the first paper of the

18 series, dated August 12th, I believe, 1998. I will, of course, comment on

19 these other papers as well, starting with the one you have referred to,

20 but the August 1998 paper is the one I believe is most significant and

21 relevant to the case, in that it describes, in direct terms, the

22 preparedness of the Clinton Administration to attack Serbia in the very

23 near future. As it turned out, six months later. That description was

24 two months prior to the date given in the indictment relevant to Kosovo,

25 that there came into being, it is alleged, a joint criminal enterprise

1 regarding Kosovo.

2 Again, as I've stated with respect to my other papers, they are

3 significant not because they can be taken as direct evidence of the

4 matters described in the paper, but the papers themselves are direct

5 contemporaneous, official assessments about the course of American policy

6 at that time from someone in the American government.

7 Q. Let's start there, then, and I have not been given, and we were

8 not supplied with that earlier paper in 1998. But you can tell us now,

9 then, going back a year, what the issues were that you uncovered.

10 A. Well, the paper, which again you see the title of it here.

11 Q. Yes.

12 A. On the paper you're referring to, the March 31st paper.

13 Q. Yes.

14 A. It's about three-quarters of the way down the page. It

15 says: "Bosnia II: The Clinton Administration sets course for NATO

16 intervention in Kosovo, August 12th, 1998." I do have copies of that

17 paper, for whatever use you may put them to.

18 Q. If I could have a copy of it now.

19 A. Certainly. And I have one for the Prosecution if they would like

20 one.

21 Q. The Judges would obviously need one as well. So --

22 A. Well, maybe someone should make some copies.

23 Q. Thank you.

24 A. Thank you.

25 MR. KAY: If you could make copies.

1 A. Again, I don't know how you want to proceed, Mr. Kay, whether we

2 should come back to that paper after copies --

3 MR. KAY:

4 Q. Let's start with it there. You're familiar with it and you can

5 tell us about it.

6 A. Yes. To summarise what is asserted in that paper at that time,

7 August of 1998, and the reason the paper is titled "Bosnia II" is that it

8 was clear to me as an analyst at that time, and it was clear to me, I

9 contend it should have been clear to others, that the administration had

10 made a decision to intervene militarily in Kosovo, either by creating

11 circumstances where Serbia would consent to an occupation of Kosovo or

12 through undertaking military action to bring about that result, and as I

13 then describe in the later papers, simply the implementation of that plan.

14 Even as of August of 1998, I was able to assert, and I think it turns out,

15 quite accurately, that that course had been decided upon, and the only

16 thing lacking in implementing that course was a suitable trigger, as I

17 refer to it in the paper, quoting an unnamed defence department official

18 mentioned in a Washington Post article I believe in June or July of 1998.

19 So I would say even that plan may have been decided upon by the

20 administration even earlier.

21 The reason I called it "Bosnia II" was that it seemed to me it had

22 all the hallmarks of what we had seen in Bosnia; that is to say, taking a

23 very, very complex, very messy conflict with lots of blame to go around

24 and boiling it down to a morality play, where we had good guys and bad

25 guys. With the evil Serbs and the saintly Albanians and naturally the

1 United States would be on the side of the angels. This entailed other

2 things which I also stated in the August 1998 report and mentioned in the

3 subsequent reports a -- I believe a whitewashing of the character of the

4 Kosovo liberation army, which had been called by American officials,

5 specifically by Robert Gelbard had been described as a terrorist

6 organisation, although it was never, as far as I know, officially listed

7 as one. But if you're going to embark on an invention of claimed

8 humanitarian grounds based on a very stacked presentation of the equities,

9 you have to overlook certain things on the -- with respect to your chosen

10 beneficiary.

11 As I say, I think the evidentiary value is this: You have an

12 official source saying: Six months before the attack came, that there

13 would be an attack, and two months before a joint criminal enterprise

14 supposedly came into existence, which I believe lends credibility to what

15 would -- what would be understood as the normal business of a government,

16 which is to protect its territory and people, not to formulate plans for

17 criminal activities.

18 Q. In relation to the Kosovo policy, did you write at all about the

19 extent, how wide the intervention was going to be?

20 A. I did not. I described the military planning that had taken place

21 up to that time and what appeared to be getting the political machinery in

22 place for proceeding with the intervention. And this was something that

23 primarily related to our NATO allies and what essentially appeared to be a

24 negotiation between our allies and Washington over their reluctance to

25 support air strikes and their insistence that Americans provide a major

1 part of the manpower to be part of the occupation force when the

2 occupation would begin.

3 Q. We know that in October of 1998 that there was a cease-fire that

4 was brokered between the KLA and the Serbian government.

5 A. Yes. The so-called Holbrooke/Milosevic agreement.

6 Q. Yes. You've dealt with so far the period before then. In terms

7 of the KLA and its influence, as you were able to see on the political

8 machinery in Washington --

9 A. Yes.

10 Q. -- was there anything you were able to observe?

11 A. I'm not -- you're saying the influence of the KLA in Washington?

12 Q. Yes.

13 A. I would say this: The Albanian cause in Kosovo, which I don't

14 dispute the validity of in the sense that every nation, every people has

15 its right to its own perspective on matters, clearly had strong support in

16 Washington, but I would say that also extended to a very dismissive

17 attitude toward serious and I would say credible reports of the character

18 of that specific organisation. These are the ones that I gave fullest

19 description to, you can see in numerous, numerous quotes from those

20 sources, in the March 31st paper, that the Kosovo liberation army was

21 substantially, in its leadership, a criminal organisation, let's say tied

22 to Albanian organised crime throughout Europe, really, and also that it

23 had links to terrorist influences, both Iranian and also Al Qaeda, the

24 same kind of people we saw getting their assets into Bosnia during the

25 Bosnian war.

1 Q. In the same way that we dealt with issues yesterday concerning

2 Bosnia and the former Yugoslavia and American perceptions of Serbia, in

3 relation to Kosovo at this time, was there an understanding of the

4 significance of Kosovo to the Serbian people, its historical, cultural,

5 and its root, if you like, with the Serbian people?

6 A. I would on occasion hear people ask questions about that. Again,

7 as an analyst at the policy committee, I would often receive inquiries

8 from Senate offices, generally from staff, but I was on occasion able to

9 brief senators on it who would ask me, you know, who are these people,

10 what is this place, what are the Serbs' interests here, what is the

11 Albanian interest, and so forth. In general, though, given the degree to

12 which Serb had become almost a synonym for some kind of a -- you know, it

13 was almost used like a word like Nazi or something. You couldn't describe

14 in many circles a Serb interest or a Serb perspective on a matter having

15 to do with potential violence in Yugoslavia without immediately

16 decrediting [sic] your argument. In fact, I should note that in preparing

17 my reports I did not use Serb sources for the simple reason that they

18 would be immediately considered discredited. I could possibly use Muslim

19 sources or Croatian sources, certainly European or American sources, but a

20 Serb source was automatically not admissible in that political context.

21 Q. We've all now got this document. I've just written an 8 on it to

22 indicate in the chain where it lies. And that might be a useful way of

23 having it. August 12th, 1998, was there any misrepresentation of the sort

24 of organisation the KLA was?

25 A. I wouldn't say so much a misrepresentation of saying the KLA is

1 not a criminal organisation, the KLA does not have terrorist ties, but

2 rather a default assumption that the Albanian cause is a just one, they're

3 freedom fighters are freedom fighters and nothing more needs to be said

4 about it except that Mr. Milosevic and the Serbs are clearly the bad guys

5 and we must do something. And again, I think some of those quotes along

6 those lines are given in the paper itself from the Clinton officials. If

7 you look on page 3, for example, that there's a quote from Ambassador

8 Holbrooke, and I think there's another one on page 4 from Secretary

9 Albright. The thesis being that the Serbs - let's say Mr. Milosevic -

10 cannot do what they did in Bosnia, again giving their interpretation of

11 what was done in Bosnia, they cannot now do this in Kosovo, and we are now

12 going to do something about it. That doesn't entail a direct

13 representation or misrepresentation of the Kosovo liberation army. It

14 simply ignores the question.

15 Q. There's a paragraph headed "whitewashing the KLA."

16 A. Yes.

17 Q. And in the second part, you refer to media reports of recent

18 embassy bombings in Kenya and Tanzania may be connected to the deportation

19 from Albania of several members of the terrorist cell of Osama bin Laden.

20 A. Yes.

21 Q. Were the Al Qaeda links to the KLA something that had been

22 observed and pointed out? Were they noted?

23 A. Certainly in that article, and again I would refer you to the

24 March 31st paper, and I would not go beyond those reports, again to accept

25 the Prosecution's point, I have no direct knowledge of the accuracy of

1 those reports. On the other hand, I do have direct knowledge that those

2 reports from credible sources were available, certainly they were

3 available to the administration, and there's no evidence the

4 administration took them seriously. I would also note in retrospect, for

5 example, we have a gentleman down in Guantanamo, Mr. Hicks from Australia,

6 who fought in Kosovo before he was arrested fighting with the Taliban

7 against the Americans in Afghanistan. I suggest that a Taliban-oriented

8 Australian didn't end up in Kosovo fighting for the Albanian cause because

9 he was recruited by the Salvation Army.

10 Q. Let's go now to the next paper, which we had begun to look at,

11 paper 3, March 31st, 1999. Again, you're writing about the KLA and here

12 tying it in with drug dealing, terror organisations. Is this again

13 information that was being made available in Washington?

14 A. Well, it was being certainly made available in my report, and

15 given the dates of the sources cited in there, which are not classified or

16 secret sources, they were available to anybody who cared to compile the

17 information. I would note that this report was issued while the war was

18 under way and that the previous reports were issued before the war

19 actually started.

20 Q. And again it points out the Mujahedin and the other aspects, the

21 same aspects you've referred to in Bosnia as having been present in

22 Kosovo.

23 A. That's right. And if I can characterise what we saw from the

24 green light episode in Bosnia as a reckless disregard for the consequences

25 of such associations. I think the same thing could apply here, noting, by

1 the way, that the reports refer to KLA violence against Albanians as well

2 as against Serbs, and I would say given what happened in Kosovo as of June

3 1999, when the Serbian forces were withdrawn and the cleansing of Serbs

4 that occurred in Kosovo, I would say that the reports that I sought to

5 draw attention to were very much vindicated.

6 Q. Document 4, dated February the 22nd, "Clinton Kosovo intervention

7 appears imminent." This is a follow-on from the earlier article you had

8 written in 1998, when you indicated, on the 12th of August, what the

9 policy was going to be. And was this your characterisation of the issues

10 that were involved in terms of US foreign policy?

11 A. That is correct. And one thing I would note in there is that ten

12 days - excuse me - on -- this was issued on February 22nd.

13 Q. Yes.

14 A. If you look -- there is a report - excuse me - a hearing in the

15 House of Representatives on February 10th that I cited in there in which a

16 senior Defence department official, Walter Slocombe, was already referring

17 to KFOR by its acronym at that time. So even though supposedly we did not

18 have a Kosovo force until June of 1999, when Serbian forces were withdrawn

19 from Kosovo, at least by well over a month before the war began, the

20 military planning had gone so far as to even have the name of the force we

21 were going to insert into Kosovo once the occupation began.

22 Q. Document 5, March 23rd: "Senate to vote today on preventing

23 funding, military operations for Kosovo." A paper in this series dealing

24 mainly again with what these issues were, but looking at the so-called

25 trigger event of Racak; is that right?

1 A. Yes. And I would say this is one of the more significant matters

2 I would like to point out in these papers, which, as I again remind the

3 Court, are contemporaneous, official documents.

4 In August of 1998, I had said that this was essentially ready to

5 go, this was a course that the administration had decided upon and they

6 were lacking only a trigger, some event that would make the operation

7 politically saleable. And I even said in that August 1998 paper that they

8 would do so on the same, I would say, cavalier basis that they used in --

9 cavalier with regard to the facts, that they used in Bosnia regarding the

10 market-place and the breadline massacres. That is to say, there are

11 events that occur in war that are often at the time very difficult to know

12 precisely what happened. Even when investigation is given, it's hard to

13 know what is happening sometimes. You never know precisely what had

14 happened. That did not change the political utility of such events for

15 the Clinton Administration. As Secretary Albright commented with regard

16 to one of the market-place massacres, so-called Serb mortar massacres,

17 that we don't know exactly what the facts are; therefore, we must believe

18 the Serbs are responsible.

19 This violates not only all laws of logic; I believe it may violate

20 the laws of grammar in the English language, to say "we don't know,

21 therefore."

22 I think the same pattern as I predicted in August of 1998 was

23 followed with respect to Racak. As I discuss in some length in the

24 March 23rd paper, which was issued the day before the bombing began, it

25 was very unclear from the information available at that time what exactly

1 had happened at Racak and that the forensic team, headed by Dr. Ranta had

2 pointedly said: "We cannot say whether there was a massacre at Racak."

3 Maybe there was. I don't know. I wasn't at Racak. I don't know if now,

4 years after the event, anybody is in a position to say with certainty

5 precisely what happened at Racak.

6 The point is that in terms of political intention to move forward

7 with a predetermined plan to attack Serbia, Racak was politically useful

8 and Racak became what the Clinton Administration said it was. If they

9 immediately want to say it was the massacre of an entire village at

10 point-blank range, forced to kneel, et cetera, et cetera, as I have quoted

11 Mr. Clinton and Senator Biden in my paper, that's what it was because it

12 was useful for pursuing a course of attack that they had previously

13 determined upon.

14 Q. Document number 6 is a text of a speech you gave on the Balkan

15 war, finding an honourable exit. I don't know actually seek to go through

16 this. I don't know whether you may be questioned on it or whatever, but

17 it doesn't have anything here further than your testimony has been

18 already; is that right?

19 A. I would take it as -- again, this is not an official document. It

20 is a speech given at a public policy institute, a think-tank in

21 Washington, in which I refer to the documents. I think it is possibly

22 useful as a summary of my description of the significance of the documents

23 plus some other material regarding Rambouillet and other aspects that I

24 think buttress my claim made six months prior to the war that the

25 administration had already determined upon this course and well before, it

1 appears, the allegation of a joint criminal enterprise took place. I

2 would say that there are other -- for example, the famous paragraph 8 of

3 annex B to the agreement that was discussed at Rambouillet where it

4 appears that we were demanding not only occupation of Kosovo but all of

5 Yugoslavia. And that, you know, there are other indications we can go

6 into as well, but perhaps not necessary at this time.

7 JUDGE KWON: CATO is an acronym of what institute?

8 THE WITNESS: CATO. It is a think-tank. It is -- it has its

9 name, the CATO institute. It is one of the libertarian political

10 orientation generally that supports a fairly non-interventionist

11 perspective on foreign policy.

12 JUDGE KWON: It is the abbreviation of what letters?

13 THE WITNESS: It evidently is not an abbreviation. It's just

14 CATO, yes. I've wondered about that myself.

15 MR. KAY:

16 Q. You mention Rambouillet and in this paper, I mean, I'll look at it

17 as you've mentioned it. I have it on good authority, and I'm looking here

18 at page 3 of the document, in the middle, "I have it on good authority

19 that one senior administration official told media at Rambouillet under

20 embargo, we intentionally set the bar too high for the Serbs to comply.

21 They need some bombing and that's what they're going to get."

22 A. Yes. And when I --

23 THE INTERPRETER: Could the speakers please pause between question

24 and answer. Thank you.

25 A.

1 THE WITNESS: Yes, I will pause between question and answer.

2 As I stated there, "I have it on good authority," that is to say,

3 from confidential sources, not confidential in the sense of classified,

4 but confidential in the sense of people I know who were in a position to

5 know and rather would not identify themselves, that this had been said by

6 a senior official, and I think it's -- whether it was said or not, it

7 certainly describes the situation that I think must be universally

8 acknowledged to have existed, where a country is presented with a demand

9 for occupation of its entire territory or to be attacked militarily. I

10 don't know how one could describe that as not setting the bar too high,

11 unless a country didn't consider occupation to be out of bounds.

12 Q. Let's look at the last document, number 7. It hadn't been one I

13 was going to rely on with any particular detail. We don't have the date

14 because the photocopy cut it off. It's the Navy Times, August 21st

15 nineteen-ninety something or other.

16 A. Yes. Well, 1995. 1995.

17 Q. Is it 1995?

18 A. Yes.

19 Q. Right. It was faxed on the 25th of August, 2004?

20 A. Yes.

21 Q. Is there any significance in this newspaper extract from Navy

22 Times that you wish to draw to the Court's attention?

23 A. Only this, and again, I would agree with you, Mr. Kay, that it

24 should not be given great weight because I'm not able to say in great

25 detail what its significance is, and my direct observations on it would

1 be -- direct knowledge about it would be fairly limited. But let me

2 describe it as follows: If you look at the Kosovo war, as was initiated

3 by the Clinton Administration, the legal grounds for it is extremely

4 limited, slim to none, I would say. We did not get -- we, the Clinton

5 Administration, did not get a Security Council resolution authorising it.

6 It did not even get an authorisation from our own Congress. In fact, a

7 resolution of authorisation was affirmatively voted down in the House of

8 Representatives. We did secure an agreement of the North Atlantic

9 Council, again on what basis it's hard to say, in that the North Atlantic

10 Treaty refers only to the defence of the territory of member states and

11 the right of individual and collective self-defence under Article 51 of

12 the UN charter, none of which were at issue in Kosovo.

13 The only thing that could possibly be said for the Kosovo

14 operation - and again, the legal authority for this, I'm still not sure

15 of - would be that it was necessary to prevent a humanitarian catastrophe,

16 that human rights were so violated on such a massive scale, or potentially

17 would be, that some action was necessary.

18 Again, laying aside whether the humanitarian catastrophe ensued

19 after the initiation or when the initiation of hostilities was imminent

20 and was itself among the proximate causes of that humanitarian

21 catastrophe --

22 THE INTERPRETER: Could the speaker please slow down. Thank you.

23 A. -- was among the causes of that humanitarian catastrophe, my

24 purpose in mentioning that report or alluding to it in my CATO remarks was

25 that with respect to Krajina, the Clinton Administration was seemingly

1 less fastidious about the massive humanitarian hardship when, even in

2 cases where it may have had some direct connection to the infliction of

3 that hardship.

4 This report in the Navy Times, which is a non-official publication

5 but one that is widely read in military circles and in government, refers

6 to air strikes that were directed against Serbian positions in Krajina

7 during Operation Storm. The article refers to strikes against radars. It

8 suggests that carrier-based planes were asked to come to the scene because

9 Pakistani peacekeepers were receiving artillery fire from the Croatian

10 forces, although that's not stated, and that when they came to the scene,

11 Serbian radar locked on to them and they struck at those radar sites.

12 The reason that struck me as significant is it was known from the

13 Serbian side that there were false broadcasts, what we would describe as

14 Si ops, to sow panic among their forces and population and to encourage

15 them to leave flee the scene and flee Krajina. Striking transmitters

16 would have been greatly -- a facilitation of such broadcasts. Inquiry was

17 made, not official inquiry but rather on the part of a retired officer

18 with experience in Vietnam and knowing something from a professional

19 standpoint about the use of air power, that official happened to be my

20 father, as it happens, who called the Congress, talked to people at the

21 Pentagon and ultimately to people at Air South in Naples asking about this

22 report and trying to get a little more information. The response he

23 received was essentially that it was a mistake. There were no such

24 planes, no such operation, nothing happened. It was a mistake.

25 Given the names in the article, the names of the ship, the names

1 of the flight leader, the specifics of the aircraft, it is hard to believe

2 that the entire report is simply a mistake, it didn't happen. I just

3 throw that out there, mention that in the CATO or alluded to it in the

4 CATO remarks, for what it is worth, as an indication given the kind of

5 falsity the Clinton Administration was capable of pedalling on the other

6 matters we've discussed in Kosovo and Bosnia, that their humanitarian

7 claims should also be taken with a great deal of scepticism.

8 THE INTERPRETER: The interpreters kindly request that the speaker

9 slow down.

10 JUDGE ROBINSON: Mr. Kay, you are asked to slow down.

11 THE WITNESS: I think I'm asked to slow down.

12 MR. KAY: I have no further questions to ask you, but wait there,

13 please.

14 JUDGE ROBINSON: Mr. Milosevic, do you wish to invite us to

15 consider allowing you to put questions to this witness? Yes or no. Did

16 you hear the question, Mr. Milosevic?

17 THE INTERPRETER: The interpreters note that Mr. Milosevic is

18 waiting for the end of the translation.

19 JUDGE ROBINSON: I see. Okay.

20 THE ACCUSED: [Interpretation] As I was saying, that was the end of

21 the interpretation.

22 Mr. Robinson, there's no sense to this. Mr. Kay himself explained

23 that he was not able to examine --

24 JUDGE ROBINSON: I've cut you off. I asked you for a yes or a no

25 answer.

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1 Mr. Nice.

2 THE ACCUSED: [Interpretation] My answer is this: I want you to

3 return my right to self-defence back to me.

4 JUDGE ROBINSON: Mr. Nice.

5 Cross-examined by Mr. Nice:

6 Q. Mr. Jatras, just a few preliminary questions to make sure I

7 understand where we are.

8 Did you go to the former Yugoslavia at all in the course of the

9 period with which we are concerned?

10 A. On one occasion during the Kosovo war, I accompanied a

11 congressional delegation to Macedonia to visit the refugees there, also to

12 Albania.

13 Q. That was the only occasion, was it?

14 A. That is correct.

15 Q. Do you speak the language?

16 A. I do not.

17 Q. The visit to Macedonia, I suppose, may lie behind an observation

18 you've made about refugees stating that they had fled either because of

19 the activity of the Serbs in Kosovo or because of the NATO bombing;

20 correct?

21 A. Actually, no. I was -- again, let me pause. It's contrary to my

22 nature. Actually, no. I was citing -- I was taking those from press

23 reports.

24 Q. Very well. So I'm just trying to clear the decks a little bit.

25 It appears you have, therefore, nothing by way of actual, direct evidence

1 coming from the territory that you can help us with?

2 A. I have nothing, actual, direct evidence coming from the territory.

3 My direct evidence is solely that within the government and the thinking

4 in the government in Washington.

5 Q. You have expressed and indeed been allowed to express conclusions,

6 including general observations on the integrity of the Clinton

7 Administration and indeed the honesty of its president. But this material

8 comes to you simply from public-source material?

9 A. That is correct.

10 Q. Insofar as you have had some access in your job to confidential

11 material, you've cut it out from consideration, so that all you're telling

12 us is conclusions that anybody else could have reached having access to

13 the same public material?

14 A. That is correct.

15 Q. You're currently a lawyer for the first time -- first time

16 practicing as a lawyer. How long is that?

17 A. Just over two years.

18 Q. But you've made some references to legal issues here. You bring

19 no legal expertise at all to the evidence you've given?

20 A. I would say to the extent to which I had a legal education, my

21 service with the State Department and with the Senate was informed by that

22 background and education, but no, that is not a specifically legal

23 perspective on the issues.

24 Q. You realise there are different provisions for expert witnesses

25 that prepare reports?

1 A. Absolutely. And I'm not here as an expert witness.

2 Q. And you're not here as an expert witness as a lawyer, you're also

3 not here as an expert witness in any other capacity because you don't

4 pretend to any special expertise on the matters about which you've been

5 giving evidence?

6 A. I would not accept that exactly. I would claim expertise on the

7 formulation and implementation of American policy as I have practiced it

8 during certainly my 17 and a half years at the Senate, as well as my

9 experience with the foreign service. However, I am not testifying as an

10 expert based on that experience. I'm testifying on what I knew

11 directly -- what I knew directly was the state of knowledge or

12 reasonable -- facts that reasonably could be understood from the

13 perspective I had at that time, at that place.

14 Q. As maybe we understood it, then, we have to draw a distinction

15 between a factual finding and the fact that reference to such a finding or

16 reference to such a possibility was generally abroad?

17 A. Absolutely. And that is the distinction I've sought to make

18 during my testimony.

19 Q. So just to take an absolutely straightforward example, you've

20 rather headlined this for us: Racak, was it a massacre, was it a set-up:

21 You are in no position to help this Chamber at all with any conclusion to

22 that as a factual problem?

23 A. That is absolutely correct.

24 Q. Your ability is limited to saying: But there were papers being

25 distributed about which said this and that?

1 A. Not exactly. I would say my expertise, and I would say it was

2 direct expertise, was to say: What was the perspective within the

3 American government, in an area which I have direct knowledge and some

4 expertise, about how the Clinton Administration dealt with that question,

5 which was as unknowable then as regarding the answers and maybe even more

6 unknowable, given its immediacy, than it is today.

7 Q. Well, because I want to be quite clear about your evidence and how

8 to address the Chamber about it in due course, that last answer rather

9 differs from the answer a couple before, where you said that you weren't

10 testifying as an expert based on your experience in policy and foreign

11 service, you were testifying on what you knew directly, "What I knew

12 directly was the state of knowledge or reasonable -- facts that reasonably

13 could be understood from the perspective I had at that time."

14 You see, we have to distinguish between what I accept you're

15 giving evidence about, things that were discussed, things about which

16 there were papers, and the application of those things that were

17 discussed. So point number one: You've given evidence about things that

18 were being discussed.

19 A. All right. Yes.

20 Q. You now want us to accept, I think, or in answer to my questions,

21 you're inviting perhaps the Chamber to accept, that you can bring some

22 expertise to bear on how those things available for discussion were relied

23 upon by the Clinton Administration.

24 A. Again perhaps I'm failing to catch your distinction here. It

25 seems to me that anyone giving direct evidence about the things that he

1 knows, knows things and assimilates information according to his own

2 background experience and degree of familiarity with the events

3 surrounding him. That is to say, I was not, you know, a bricklayer or a

4 physician in the venue as -- in the official venue in which I found myself

5 during the time in question, but rather, somebody who was there, present,

6 who was aware of certain discussions, information that was available from

7 the perspective of someone with my professional background. That is to

8 say, when I was aware of the reports that were available on policy issues

9 and how those reports were dealt with, I was aware of them from a

10 perspective of a person who is himself part of the governing process in

11 the United States, not from somebody who maybe was not familiar with these

12 types of issues.

13 So my direct evidence is from the perspective of someone in a

14 segment of the government at that time and knowing how government deals

15 with these matters.

16 Q. If there's anything in the evidence that's going to be admitted

17 along the lines of that last answer, and indeed along the lines of the

18 last few answers of his questioning by Mr. Kay, it's material in respect

19 of which a report would have been helpful, and in respect of which I might

20 require time to meet the evidence in due course.

21 We can turn to that if the Chamber is about to have a break, at a

22 later point in time, because in any event I need to read the document that

23 hadn't been produced in advance.

24 JUDGE ROBINSON: Yes, Mr. Nice. We'll take the break now for 20

25 minutes.

1 --- Recess taken at 10.31 a.m.

2 --- On resuming at 10.56 a.m.

3 JUDGE ROBINSON: Yes, Mr. Nice.

4 MR. NICE:

5 Q. Before returning to this witness, I'm asked to deal with an

6 administrative matter relating to the previous witness. Four clips from

7 the film "Death of Yugoslavia," were played. They should have been

8 prepared in advance as separate CDs, in accordance with the prevailing

9 practice. It's my oversight not to have that done. They are now

10 available. They may be given either sequential exhibit numbers or a

11 single number, as the Court decides, probably sequential.

12 [Trial Chamber confers]

13 JUDGE ROBINSON: That can be done later.

14 MR. NICE: Your Honour, thank you. It's just seemed, in case I

15 find anything to produce for this witness --

16 JUDGE ROBINSON: We'll look at all the exhibits at the end.

17 MR. NICE:

18 Q. Mr. Jatras, before turning to matters of detail, you, of course,

19 understand, I think, that this is a Tribunal that deals with Serbs,

20 Croatians, Albanians as defendants and has no interest in any particular

21 ethnic group. Is that your understanding?

22 A. Yes, sir.

23 Q. You do. So we are utterly unconcerned about matters of

24 prejudice. Equally we represent and have no interest in any particular

25 government. You understand that as well?

1 A. Yes, sir.

2 Q. We are here to uncover the truth.

3 Before I look at matters in detail, just a couple of personalities

4 who appeared and you might be able to help me with. First there was the

5 person you referred to in the statement - we don't have to look at it

6 again - the statement of yours, the person in the administration of

7 America who told you that they had intentionally set the bar too high for

8 the Serbs to comply. Can you tell us who that was?

9 A. I'm not sure. I heard it might have been Secretary Albright but I

10 do not have the exact identity of that official.

11 Q. It wasn't told to you personally?

12 A. No. No, it was not. And I made that clear when I referred to it.

13 It was told to me on good authority.

14 Q. My mistake for misinterpreting the statement which makes reference

15 to something under embargo, and I assumed that that was the identity. But

16 you don't actually know who, if anyone?

17 A. If anyone. It may not have been said. I heard from a source that

18 I considered reliable that it was said. If you're suggesting it is mere

19 hearsay, that's exactly right.

20 Q. Your source being, please? Your source, please?

21 A. A colleague in the House of --

22 Q. May we have his name?

23 A. If you insist upon it, yes. You do insist?

24 Q. I'd like to have it, unless there's any reason not to.

25 A. Only that the person told it to me on condition of

1 confidentiality, with respect to his source. And I generally respect the

2 confidentiality of people who tell me things in confidence if I consider

3 them trustworthy individuals.

4 Q. I'll leave it there. But mindful of your answer that you, of

5 course, can say nothing as to the accuracy itself of what you were told?

6 A. I freely concede that and did at the time I mentioned it.

7 Q. The second person about whom you just might be able to help me,

8 because it came as a surprise that you mentioned him as your father. His

9 role in this was what?

10 A. One of professional interest as a man who had served in a military

11 capacity for a number of years, including flying over 100 combat missions

12 in Vietnam, one familiar with the use of air power, and also a person

13 concerned about the course of American policy that was, he felt,

14 distinctly different from the values he thought he was defending in all of

15 his years of professional military service. He simply saw the report and

16 wanted to know more about it and its accuracy and received what he

17 regarded and which I regard as a very implausible answer.

18 Q. He was simply making contact as a member of the public?

19 A. That's correct.

20 Q. No particular interest other than as a member of the public and as

21 a former Vietnam combatant?

22 A. Correct. And with no particular obligation to receive any answer

23 or effectual answer from the persons he contacted.

24 Q. Shall we go first to this rather substantial document, because I

25 think we could use some of your assistance on it. You recognise of course

1 that none of us has any particular expertise in the American way of

2 government and we'll need your help. So if we go, please, to the pages

3 just so we can understand this --

4 A. Yes.

5 Q. Literally the first page sets out, under -- or over II the select

6 subcommittee members. That's Henry Hyde, and he I think was a Republican;

7 is that right?

8 A. And he still is, yes.

9 Q. And Lee Hamilton who is still a Democrat?

10 A. Correct.

11 Q. And on the left we see Mr. Bereuter, Mr. Burton, Mr. Ballenger,

12 Mr. Meyers - he was a replacement - and I think they are Republicans?

13 A. Yes. The way committees are organised in our Congress, the

14 majority party always has a majority and all committees and subcommittees

15 and controls the committees and subcommittees.

16 Q. And indeed we can see that at the bottom. It's sort of

17 explained.

18 A. Yes.

19 Q. Under footnote 1?

20 A. And you will see of course the list of names on the left which is

21 the majority party Republicans is longer than the list on the right, and

22 that's true of all committees.

23 Q. And then so the two on the right are the Democrats, Berman,

24 Bereuter and Hastings with, of course, Mr. Hamilton as the third

25 Democratic member of the committee?

1 A. That's correct.

2 Q. I understand. Now, we've been taken through, at page 200, some

3 conclusions. But insofar as these are fact finding conclusions they are

4 findings of the committee, aren't they?

5 A. That's correct.

6 Q. They're not your findings?

7 A. That is correct.

8 Q. You are in no position to express any views yourself, as an

9 individual but --

10 A. I am not in a position to give direct -- to say I am directly

11 confirming what the committee found. I am able to take note of what the

12 committee found as a responsible actor in our system of government.

13 Q. Yes. And of course you realise that all matters of fact here are

14 for the Judges of course?

15 A. Absolutely.

16 Q. Could we just look, if we've got it, please, at the passage of

17 evidence of Ambassador Galbraith. We've had evidence here from Ambassador

18 Galbraith, as you know, and I hope it's going to appear on your screen.

19 At a time when -- at the time when the accused was questioning Ambassador

20 Galbraith, he said to him: "Tell me, Mr. Galbraith: You spent five years

21 in Zagreb, according to what Chris Hedges from the New York Times says who

22 wrote a text on the 24th of December, 1997" -- I'm so sorry. I hadn't

23 checked that it was working.

24 You have a special place because you did not represent the true

25 state of affairs of Washington and the relationship of the Serbian

1 authorities until the Serbs were expelled, were actually expelled from

2 Croatia; is that right?

3 No.

4 All right. And tell me this, then: John Galvin, the retired

5 general who took part in the negotiations in Yugoslavia, together with

6 Charles Redman, who was otherwise an expert for the so-called doctrine of

7 low-intensity conflicts, was an advisor to Alija Izetbegovic, advisor to

8 boot; is that right, Charles Redman, he was a US ambassador and American

9 representative to the contact group, and I don't think he was an expert on

10 low-intensity conflict.

11 All right. Tell me this, then, please: Is it true and correct

12 that for the Iranian shipments of weapons to Bosnia-Herzegovina, that your

13 president knew about that, Bill Clinton and that Holbrooke, in his

14 testimony to Congress, recognised that arms were being infiltrated into

15 Croatia from Iran?

16 Answer: Yes.

17 Judge May: This is your last question. Your time is then up.

18 And is it true and generally well known, said the accused, that

19 you were included in the affair over the secret import and smuggling of

20 arms into Bosnia, you were involved in that?

21 Answer: Well, first I was not involved in the -- in any way the

22 smuggling of arms into Bosnia. This was the subject, this whole issue was

23 the subject of a number of congressional hearings and reports, as well as

24 a lot of press discussion. And what I did come out in the course of that,

25 and it was very simple, I think it was the 28th of April, 1994, President

1 Tudjman asked me, as I knew he would, what would be the attitude of the

2 United States if Croatia, if Croatia were to accede to the request from

3 Bosnia to permit arms from Iran and from other countries to transit

4 Croatia, to go to Bosnia-Herzegovina. And I told him, on instructions, of

5 course, that I had no instructions, which he understood to mean that the

6 United States did not object and indeed the arms went, shipments went

7 forwards.

8 And then he goes to deal with some other matters of the Clinton

9 Administration.

10 But that evidence that he's given this Court is the same account

11 that he gave to the committee, in broad terms, and indeed we can see the

12 letter in -- or a letter or memorandum of his in the document setting out

13 his position; correct?

14 A. Yes.

15 Q. Can we look at the next document. This one I think may be new. I

16 haven't -- it may actually be in these 700 pages but I haven't been able

17 to find everything yet.

18 This, therefore, must be produced as potentially an additional

19 exhibit. And this is again, just so that we can see it at the best form,

20 this is the position taken by Ambassador Galbraith before your

21 committee -- or not your committee, the committee; correct?

22 A. This committee, yes.

23 Q. Expressing his gratitude at the opportunity to appear. I shan't

24 read all paragraphs. But his position to your committee was: Two years

25 ago, the Bosnian government asked the Croatian government to permit the

1 transit through Croatia of weapons for its beleaguered army. The

2 principal suppliers of these arms would be Iran. The Croatian government

3 asked for our reaction. The administration decided we wouldn't answer,

4 and I told the Croatians I had no instructions. The Croatians understood

5 this response and a subsequent colloquy described to you by Ambassador

6 Redman to mean that we would not object to their role in helping the

7 Bosnians. I believed then, and even more strongly now, that the

8 administration made the right decision. Because of the arms, the Bosnians

9 were able to survive. Eventually, the outside arms which came from

10 countries -- which also came from countries other than Iran enabled the

11 Bosnians to redress the military imbalance with the Serbs, recover some

12 territory, and thus pave the way to Dayton.

13 The next paragraph he sets out casualties to date. In the

14 following paragraph, he deals with a matter involving Ambassador Redman.

15 He says that the Bosnian people left unarmed against the Serb aggressors

16 had barely survived the winter of 1993/1994. Without help, we doubted

17 they could survive another year. This was then the context for our

18 decision.

19 Let me explore for a minute, said the ambassador, the consequences

20 if we had said no. Under these circumstances, I think the very fragile

21 Muslim-Croat Federation would have collapsed, that the Bosnians would have

22 doubted the sincerity of their Croatian allies.

23 And I don't want to take too long because it's going to be

24 available to the Judges. But if we go to the next page in the paper

25 version, he said: "I do believe," top of the page, "a unilateral lifting

1 of the arms embargo would have provoked the Bosnian Serbs to move against

2 the essentially undefended enclaves."

3 Now, that was his position before the committee, and again, as you

4 see, it's the position in summary he gave before this Court.

5 A. Yes.

6 Q. And the views he expressed there, Mr. Jatras, the views about the

7 consequences of not arming the Bosnians, were views that were indeed being

8 considered in Washington?

9 A. As he states in his letter, the decision to lift the arms embargo

10 to overtly take action to arm the Bosnian Muslims, was something that was

11 debated. The secret arming of them via giving a green light to the

12 Iranians, as I recall, was something that only became a matter of public

13 debate after the press accounts began to emerge that this was going on.

14 Q. He, in his evidence - and indeed as we're going to see in a

15 document - dealt with this on instructions in the oblique way of saying we

16 have no instructions.

17 A. Yes. And as the committee makes clear, it was understood on the

18 Croatian side what the meaning of that "no instructions" instruction was.

19 Q. Now let's go back, if we could, to the report. Because we've

20 looked at page 200, at the conclusions, very strong conclusions of the

21 committee. Well, it's not actually the conclusions of the committee, is

22 it? Because although you didn't explain this, it's the conclusions of the

23 majority?

24 A. Not exactly. Even though the majority has a weight in preparing

25 the report, they generally will consult with the minority and take their

1 views into account. Again, I'd have to look through the committee report

2 to see by what vote it was adopted, but you will generally see a vote in

3 the committee to adopt the report --

4 Q. Can you find it for us now?

5 A. Well, I don't know. I'd have to look through this rather lengthy

6 document.

7 Q. We can perhaps come to it in another way, I suspect. Because you

8 can help us with the way of government in America. This is a fact-finding

9 committee, composed of members of Congress?

10 A. Correct.

11 Q. Senators?

12 A. No.

13 Q. Congressmen?

14 A. House members. Excuse me, sir. There is also a Senate report

15 which I also cited in my January paper, which evidently is not in

16 evidence. I can give that to you if you want.

17 Q. Is it -- even in a fact-finding exercise, is it common for a

18 committee to divide entirely on political lines? Is that what happens?

19 A. Again, without looking at this record, I do not know that the

20 committee did divide on political lines.

21 Q. Okay. Because --

22 A. By the way, if it did, there would be a substantial -- well, if

23 you look on page --

24 Q. We're going to come to it in a minute.

25 A. All right.

1 Q. Before we do, can we, in order to go through the document in a

2 methodical way, just look at page 220. The Judges may find this helpful

3 in the setting of the evidence in this trial, because this particular

4 document, although it's been subject to redaction, no doubt, for reasons

5 of sensitivity of confidential material, is a memorandum of Ambassador

6 Galbraith, contemporaneously 1994, and again, setting out, we needn't go

7 through it all, the same account, the account of saying that they had

8 no -- he being instructed they had no position to say no and therefore

9 replying that the answer was they had no instructions. Yes?

10 A. Yes.

11 Q. So that's --

12 A. I'm sorry. I'm not keeping up with your reading as quickly as

13 you're going through it.

14 Q. Page 220, if you can find it.

15 A. Yes. I've got it.

16 Q. So this particular document from Ambassador Galbraith --

17 A. Memorandum to file.

18 Q. Thank you very much. Consistent with his evidence here. Would

19 you like to turn over to the following page, please, which is number 223.

20 Now, this is minority views.

21 A. Yes.

22 Q. And we see this is submitted by Messrs. Hamilton, Burman and

23 Hastings, who were of course the three Democratic members; correct?

24 A. Yes.

25 Q. So we haven't yet found the vote. You may be able to find that

1 for us; I don't know. But if we then turn over to the following pages, to

2 guide the Judges through the immediate following pages through this very

3 substantial document should they want to find anything else in it, we see

4 there's an index, and that's an index, isn't it, starting at page 226, for

5 the minority's views?

6 A. That is correct.

7 Q. Very well. So in fact the minority published an extensive report.

8 This isn't a partially dissenting view. This is a full dissent,

9 effectively?

10 A. Yes.

11 Q. So if we could turn now to page 232, the page numbering is a bit

12 confusing, Mr. Jatras. It changes part way through and we can deal with

13 that, but at the moment we're still on the same sequence of page numbers.

14 The executive summary sets out how the House of Representatives voted to

15 establish and fund this committee. Next paragraph, authorised to

16 investigate and report. Next paragraph, following minority views to the

17 report of the select committee, based on a thorough review of thousands of

18 pages of classified and unclassified materials made available by the

19 department of state and defence, the CIA, National Security Council, as

20 well as press reports and so on.

21 Then it sets out the legislative history. Then we go to page 234,

22 go through treatment of confidential and classified information. And then

23 at 236, we come to the summary of the key findings and conclusions of the

24 minority members who happen to be the three Democrats.

25 And I read the sum in any event of what's here as the conclusions

1

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3

4

5

6

7

8

9

10

11

12 Blank page inserted to ensure the pagination between the English and

13 French transcripts correspond

14

15

16

17

18

19

20

21

22

23

24

25

1 the majority have been read out: "The central issues of the select

2 subcommittee investigation include whether the United States government

3 ordered, organised, or otherwise encouraged, Iran or any other country to

4 ship arms to Bosnia, whether the United States government provided a

5 foothold for Iranian operations in Europe, whether the United States

6 government engaged in covert action, without meeting the legal requirement

7 to inform Congress, and how the United States policy regarding the arms

8 embargo affected United States relations with NATO allies. The

9 consequence of United States policy are not in dispute. In 1994, Bosnia

10 was embroiled in a brutal war."

11 I move on to the end of this page, foot of this page: "Based upon

12 the select subcommittee investigation, the minority finds that, one, from

13 the outset of the Clinton Administration, it was United States policy

14 neither to oppose nor support third-party arms transfers to

15 Bosnia-Herzegovina. This policy was embodied in the no-instructions

16 response to the Croatian government's question on the United States' view

17 of the transhipment of arms. It served several important United States

18 interests and helped establish conditions on the ground that pointed the

19 way to peace. During the entire period in which the United Nations arms

20 embargo against the former Yugoslavia was in effect, United States policy

21 was to refrain from supplying arms to any party in the former Yugoslavia.

22 Pursuant to UN Security Council resolutions, the United States

23 agreed in 1992 to participate with its allies in Operation Sharp Guard for

24 the primary purpose of interdicting contraband destined for Serbia.

25 Beginning in January 1993, following the inauguration of President

1 Clinton, United States policy was neither to oppose nor support the

2 shipment of arms to the government of Bosnia-Herzegovina from other

3 countries, including Iran. In November 1994, following the enactment of

4 the Nunn-Mitchell Amendment, United States officials informed

5 United States allies that the United States would participate in Operation

6 Sharp Guard for the sole purpose of interdicting contraband destined for

7 Serbia, in compliance with the Nunn-Mitchell Amendment. The United States

8 would take no action to interdict arms destined for Bosnia or Croatia.

9 The no-instructions policy served important United States

10 interests. The outgunned Bosnian Muslims received arms that helped them

11 survive until such time as the circumstances were ripe for a negotiated

12 peace. The United States avoided a confrontation with NATO. The

13 peacekeeping force and humanitarian aid workers remained in Bosnia. No

14 United States ground troops were forced into a combat situation, and

15 conditions were established that paved the way for the Dayton peace

16 accords in November 1995."

17 Over to page 238: "Throughout the period of the United States

18 arms embargo, Iran and other Islamic countries supplied arms to the

19 Bosnians. During the entire period, the United Nations arms embargo

20 against the former Yugoslavia, all parties to the conflict in Bosnia

21 received arm shipments in violation of the embargo. During the entire

22 period of the United Nations arms embargo, the Bosnian Serb military

23 arsenal dwarfed that of the Bosnian Muslims and Croats. Beginning in

24 1991, several Islamic countries, including Iran, began supplying arms to

25 the Bosnian Muslim forces. The supply of arms to Bosnian Muslims declined

1 from summer 1993 to spring 1994, due to the war between the Bosnian

2 Muslims and Bosnian Croat forces. The supply of arms to the Bosnian

3 Muslims increased in spring 1994 due to the Federation agreement to end

4 the war between Bosnian Muslim and Bosnian Croat forces and the delivery

5 of the no-instruction response. A number of Iranians in Bosnia peaked

6 before the spring of 1994, remained constant until the Dayton peace

7 accords, and subsequently declined to the handful that is present today."

8 Next, the conclusions, Your Honours, go on just to the following

9 sheet, and in fairness to all involved, I think I should probably read

10 them.

11 Conclusion 3 of the minority: "The United States took no action

12 to aid arms transfers to the former Yugoslavia. At no time did any

13 United States government official take any action to supply arms to any

14 country or entity covered by the UN arms embargo. At no time did any

15 United States government official undertake any covert action to supply

16 arms to any country or entity covered by the embargo or to encourage, aid,

17 or assist in the shipment or transfer of arms to any country in the former

18 Yugoslavia. The proposal to expand the pipeline of arms destined for

19 Bosnia through Croatia originated with Bosnian and Croatian government

20 officials in the wake of signing the Federation agreement in March 1994.

21 No United States government official coordinated, cooperated, conspired

22 with, or suggested to Bosnian Muslims, the government of Croatia, or the

23 Bosnian Croats, that the United States be asked to state its views of the

24 transhipment of arms. United States government official directed

25 ambassador to Croatia Peter Galbraith to respond that he had no

1 instructions, when asked for the reaction of the United States government

2 to the transhipment of arms through Croatia to Bosnia by the government of

3 Croatia. Ambassador Galbraith carried out his directions correctly and

4 promptly. No-instructions response achieved United States objectives and

5 was consistent with United States policy. Shipment of arms to Bosnia was

6 not obstructed. The UN Security Council resolution was not violated and

7 serious conflict with the allies was avoided.

8 4: United States government did not engage in any covert action

9 and was not legally required to inform Congress of its diplomatic

10 exchanges with governments in the region. However, Congress should have

11 been better informed about the no-instructions exchange. Information

12 about the shipment of arms by Iran and other Islamic countries through

13 Croatia to Bosnia was made available to members of Congress on dozens of

14 occasions through press reports, intelligence reports, briefings, and in

15 connection with staff and congressional travel to Croatia. The

16 administration responded accurately to every question from Congress about

17 the shipment of arms to Bosnia from Iran and did not set out to mislead

18 members of Congress. As a policy matter, however, the administration

19 chose not to inform Congress about the delivery of the no-instructions

20 response. The no-instructions response to the question posed by the

21 government of Croatia was a traditional diplomatic exchange. The

22 administration does not routinely disclose to Congress sensitive

23 diplomatic exchanges between ambassadors in foreign governments. The

24 failure of the administration to inform Congress formally about the

25 exchange among Ambassador Galbraith and Special Envoy Redman and a senior

1 official of the government of Croatia is not a violation of United States

2 law. As a matter of policy, the administration should have considered

3 informing selected members of Congress about the delivery, the

4 no-instructions response.

5 THE INTERPRETER: Please slow down, Mr. Nice. Thank you.

6 MR. NICE: -- conclusions.

7 JUDGE ROBINSON: Mr. Nice, you're being asked to slow down.

8 MR. NICE: I apologise.

9 There are a few more headlined conclusions, Mr. Jatras. If you

10 think that in fairness to the position that you've expressed, you'd like

11 any of them read in full, just say so. The headlines are, 5: "The impact

12 on the Iranian arms shipment on the security, United States military and

13 civilian personnel was minimal." Conclusion 6: "The impact of Iranian

14 arms shipments on United States allied relations." 7: "The executive

15 branch has acted properly in reviewing actions by United States officials

16 and in responding to inquiries from Congress concerning the arms

17 transfers." 8: "Lapses in communication and coordination among United

18 States government officials in Zagreb and Washington led to confusion and

19 erroneous impressions about United States policy among some United States

20 government officials."

21 Q. And then it turns to a summary of the investigation.

22 So what we see, Mr. Jatras, is that this very substantial document

23 actually presents the views of five men, on the one side, and the view of

24 three on the other. Is that correct?

25 A. To a great extent, that is correct, unless, as I say, and I have

1 not been able to find it, I find the margin by which this committee report

2 was issued, which has a bearing on it.

3 Q. Mr. Jatras, if you find it and I haven't managed to dig it out in

4 the time available, I shall be only too indebted to you.

5 A. Yes.

6 Q. We'll just look at a few more passages in this document, maybe, to

7 get the picture. If you'd be good enough to go to --

8 JUDGE ROBINSON: Mr. Nice, may I just ask: To whom does this

9 report go?

10 THE WITNESS: Well, it is sent initially to the administration.

11 It would be, in fact, there is a letter here, I believe, that would be the

12 issuance letter.

13 JUDGE ROBINSON: Is there any greater significance attached to the

14 majority view than to the minority view?

15 THE WITNESS: Generally, yes. The committee report is generally

16 to be considered the majority report, and the minority report is what it

17 suggests itself as being, is the view of the minority. They're both

18 accorded great weight, but the majority vote is usually considered "the

19 committee report," with the dissenting views of the minority. And that's

20 true regardless of which party is in the majority.

21 JUDGE ROBINSON: So the report is the report of the majority with

22 the minority expressing their --

23 THE WITNESS: Yes. And together they can be considered the

24 report, but generally greater weight is given to the majority report.

25 Again, as I mentioned to Mr. Nice, I would want to see how -- remember,

1 this is a report of just a subcommittee, a select subcommittee, within the

2 International Relations Committee, which has a far larger membership. And

3 I do not see anything here in this tome that suggests how that was voted

4 out of committee and whether it was a straight party-line vote, which it

5 may well have been, or whether it was different from that.

6 MR. NICE:

7 Q. We've seen that the minority's view is headed on a piece of paper

8 with the three minority names, isn't it?

9 A. Yes.

10 Q. And I mean this is not a legal document. This is in part a

11 fact-finding document, isn't it?

12 A. Yes. It is a fact-finding document from a legislative body,

13 correct.

14 Q. And I mean again, I don't want to make an obvious point, but

15 America is different from other countries. We know that courts sometimes

16 divide on apparently political lines, but fact-finding bodies by juries

17 have to be unanimous, don't they?

18 A. In most cases, yes. Actually, under our system, not in all cases,

19 but generally.

20 Q. If we look at page 205 just very briefly. Part of the minority's

21 finding, the last part of 205: "The minority concludes, had it not been

22 for this rampant speculative reporting, the May 1994 convoy would not have

23 been -- would have been no more significant than the thousands of other

24 convoys that traversed the region during the war." Then this: "The

25 allegations of misconduct and possible covert action were wholly

1 unsupported by any evidence and should not have been accorded the level of

2 significance that was afforded them. The minority also believes" --

3 JUDGE KWON: Mr. Nice, is it not 250?

4 MR. NICE: I'm so sorry. It's page 467 at the top and the

5 numbering has then changed at the bottom. I think what happened was that

6 the minority report was presented as a separate document with its own

7 sequential page numbering. And it was then integrated into this single

8 document, and so at this page we have two numbers. I'm so sorry. 467 at

9 the top, 205 at the bottom.

10 Q. And I've been reading from the last paragraph, and I can take the

11 second and third sentences: "The allegations of misconduct and possible

12 covert action were wholly unsupported by any evidence and should not have

13 been accorded the level of significance that was afforded them. The

14 minority also believes that the CIA must do a better job of distinguishing

15 between speculation and gossip in intelligence gathering, speculation by

16 the DCM..." DCM, Mr. Jatras?

17 A. Deputy chief of mission.

18 Q. Thank you. "...about Special Envoy Redman was rumour and gossip,

19 not intelligence."

20 And if we can then turn on, again using the page numbers at the

21 top, to page 477. "The minority found," top of 477: "No credible

22 evidence exists to confirm the speculation by the United States government

23 officials, by someone, that United States government officials were

24 colluding with Iran on weapons. In fact, the speculative, incomplete, and

25 inaccurate nature of the reporting created suspicions within the CIA that

1 a covert operation, spearheaded by Ambassador Galbraith, was under way."

2 This was wildly disproportionate to the facts. That's another

3 finding by the minority, wasn't it?

4 A. That is correct.

5 Q. And would you now, please, go to page 578 at the top, 317 at the

6 bottom. I don't, I think, need to read all of this, but it's a specific

7 response by the minority to the majority conclusions regarding false

8 testimony of witnesses' classification and executive privilege. And so if

9 we look, for example, at the foot of page 3 -- sorry. Page 578 or 317, we

10 find this approach, this reflection of the reality of this

11 committee: "The most inflammatory aspect of the majority report is its

12 referral on certain matters to the justice department for further inquiry.

13 The majority asserts that several executive branch officers gave

14 inconsistent testimony to the select subcommittee and suggests the

15 possibility that some of these officials might have perjured themselves.

16 This reckless allegation is wholly unsubstantiated. It casts aspersions

17 on the character of dedicated public servants who performed their duties

18 in difficult and at times dangerous circumstances for what we can only

19 assume to be the majority's short-term political advantage."

20 Now, that shows us, doesn't it, Mr. Jatras, part of the reality of

21 a committee like this, it is a political committee, asserted by some,

22 including its own members, to be serving political ends at the hands of

23 the other side?

24 A. That is certainly part of the reality, yes.

25 Q. Thank you. And indeed, it may be that the Chamber, if it wants to

1 have a couple of other pages in mind in evaluating this document, would

2 like to go to pages 624 and 625, although it may need stronger spectacles

3 or a magnifying glass to read them, and in my version they're upside down,

4 but I make absolutely no complaint of that.

5 And on page 625, I'll just read a couple of paragraphs, one

6 paragraph on the following page, and I am done with this document.

7 At 625, in very small text: "This unprecedented legislative procedure

8 proposed, and it gives the authority, was created for one purpose and for

9 one purpose only. It is a political fishing expedition designed to

10 embarrass the administration by creating a perceived problem where one

11 does not exist. It is an expensive political ploy designed to manufacture

12 campaign fodder in an election year. It is a perfect example of politics

13 at its worst."

14 Two sentences into the next paragraph: "No laws were broken.

15 There were no reporting requirements on the part of the administration, no

16 government officials participated in in any prohibited activity and no

17 charges of wrongdoing have resulted from this particular incident."

18 Unless I'm advised to the contrary, we can go for to the next

19 page, page --

20 JUDGE ROBINSON: Mr. Nice, let me follow the line of your

21 examination. Is it your position, then, that this being a document, which

22 is nothing more than the views of five men representing one party and

23 three men representing another party, which has divided on political

24 lines; it doesn't offer any help to the Chamber in determining the facts?

25 MR. NICE: Your Honour, I would go further and have by my earlier

1 objections all right, I think, set out my position. Fact-finding

2 decisions by another body on issues that are for this Court, if these

3 issues are for this Court, is -- are of no value in the decision making

4 function of this Court, because it is for this Court to decide matters --

5 JUDGE ROBINSON: They could be persuasive. It's for the Chamber

6 to make what it --

7 MR. NICE: If at best it could be persuasive, when it appears to

8 be nothing more than the majority vote of five against three, it would

9 probably be of no -- it would be very hard to justify making a preference

10 for the five against the three. That point is even stronger when it is

11 apparent that the division appears to be along political lines. Yes,

12 those are my observations.

13 JUDGE ROBINSON: Yes.

14 JUDGE BONOMY: Mr. Jatras, on the issue, as you've presented it,

15 about what was known and knowable, do you see a significant difference

16 between what the Republican position was on that and what the Democrat

17 position was?

18 THE WITNESS: Yes.

19 JUDGE BONOMY: Can you tell me what the significant differences

20 are?

21 THE WITNESS: Yes. I think there's, to start with, a very

22 significant agreement in the majority -- in the minority views, and I

23 think that the -- again, at the risk of providing an opinion rather than

24 direct testimony, with Mr. Nice's indulgence --

25 JUDGE ROBINSON: The Court's indulgence, I would think.

1 THE WITNESS: Yes, and the Court's indulgence. That it is clear

2 from the account of both the majority and the minority that Ambassador

3 Galbraith gave his no-instructions response to the Croatians and that the

4 Croatians took that to mean something. They then disagree on the

5 interpretation of the significance of that. For example, did it or did it

6 not result in a re-initiation of the Iranian pipeline? The Democrats

7 seemed to argue that it was of minimal impact, which one may accept if one

8 chooses to do so. The Republicans seem to believe it was a more

9 significant development. There is a great deal of argument, and again

10 this is purely a matter of American domestic law about whether this is

11 technically a covert operation or not which then would have been

12 statutorily under requirements for reporting in a certain way with

13 congressional committees.

14 JUDGE BONOMY: But is that not an internal American domestic

15 issue?

16 THE WITNESS: Absolutely. And regarding the different opinions of

17 the majority and minority, the -- I notice the minority uses some fairly

18 strong language in characterising the majority in how it went about its

19 business and the extent to which it may have been politically motivated,

20 and one could easily draw the opposite inference, which is the Democrats

21 here are with some heat politically defending their administration having

22 been caught in rather unfortunate circumstances.

23 I would also note one other area of agreement, and that is the

24 neglect of both the minority and the majority to address the other issues

25 I sought to address in my January 1997 paper, namely, the non-Iranian

1 participants in bringing weapons and also fighters into Bosnia just

2 demurely noted here as "other countries," and also the character of the

3 Izetbegovic regime in Sarajevo, which even the minority notes was --

4 Iranians present in Bosnia as early as 1991, that is to say, even before

5 Bosnia declared its independence, so it could not have been purely a

6 product of the necessity to procure arms from somewhere.

7 So I take even the minority's views of something of a confirmation

8 of the picture I sought to present in my January 1997 paper, if some want

9 to suggest there's a partisan aspect to it, well, welcome to the American

10 political system. But that aspect is there. But just as in a courtroom

11 situation, we have Prosecution and Defence. We don't dismiss the

12 arguments made because each side is presenting a point of view which is in

13 the interest of their party, the word being used in a somewhat different

14 sense.

15 MR. NICE:

16 Q. Last passage I'll ask the witness about, page 627, the following

17 page. Their conclusion: "If the majority feels this incident must be

18 examined, then they should do so through the existing mechanisms and

19 committee structures of the House. Should be deliberated in a matter that

20 is responsible and done out of genuine concern over the existing policies

21 with regard to embargoes and third country actions it should not be

22 investigated as a political agenda to be used for election year gains."

23 That's over the names Joe Moxley, and then other names. Can you

24 explain that, it forms a minority view of another report, I think, but you

25 must explain it to us. We can see the beginning of this report at

1 page 620.

2 A. Yes. Let me see who that is.

3 Q. It will help us with what we've been looking at.

4 A. The committee on rules. I must confess, my knowledge of House

5 procedure is not as detailed as my knowledge on Senate procedure, since

6 I've only served in the Senate. The Rules Committee does not perform the

7 same functions in the Senate. What I will -- again, just looking briefly

8 at this, what appears they're suggesting is that the set-up and structure

9 and authorisation of the select subcommittee of the International

10 Relations Committee should have been subject to a different rule giving

11 its authorisation. Again, noting the partisan question you have raised,

12 Mr. Nice, I think this is a shorthand way of saying, from the Democratic

13 side, this should have been done in a way that we were able to block it.

14 Q. Mr. Jatras, you appreciate, don't you, that if this document, as

15 His Honour Judge Robinson has raised as a possibility, should ever have

16 persuasive effect as to factual matters, it's essential to know that it is

17 only the conclusion of a majority, that there was a strong minority?

18 A. That is correct.

19 Q. And you bring no, as we've already explained, ability to make

20 factual conclusions of your own? I'll simply make this point. It's

21 unfortunate, do you accept this, that you didn't draw to our attention

22 that there was this minority view to an entirely contrary effect?

23 A. I don't think it was unfortunate at all. I can explain if you

24 wish.

25 Q. Yes.

1 A. My purpose, again, in testifying is to elucidate and explain the

2 extent I can the documents that I issued from the policy committee, not to

3 explain the preparation and the weight of every source that I cited in

4 preparing those reports.

5 Q. I see.

6 A. I cited the House report, I cited the Senate report, I cited a

7 1995 report from Lieutenant Colonel John Sharay [phoen] from

8 Fort Leavenworth. I cited many press reports. There are facts again from

9 serious sources, including this one, that deserve to be given note of.

10 But, as I said at the outset, I think there are deficiencies in the way

11 that the report was presented, frankly, by both parties, in that there are

12 sensitivities in the American government regarding Iran and whether

13 something is a covert operation and they would have devoted particular

14 attention to those things, and they would have neglected other things

15 which are impolitic, or were certainly impolitic prior to 9/11 to note

16 regarding other radical activities present in Bosnia, and it seemed that

17 in drawing attention to those things which, as knowable, and indeed you

18 note even the minority mentions the press reports as a means by which

19 these activities were knowable to Congress anyway, seemingly in defence of

20 the Clinton Administration neglecting to officially inform Congress.

21 So again, I will note the report is here. It is a partisan

22 report. It contains many assertions of fact that the two parties agree on

23 and others on which they disagree. And that's normal in our system.

24 Q. Mr. Jatras, you're asserting your even-handedness and we do have

25 one of your, as it were, raw documents before us. We've got tab 6, and

1 perhaps we can just look at that for an example of indeed your

2 even-handedness, before I look at another couple of matters in detail.

3 A. Excuse me, I did not assert even-handedness.

4 Q. Very well. You don't. You are yourself partisan?

5 A. I am a partisan --

6 Q. In what sense partisan?

7 A. I identified myself as a Republican at the