Gitmo "Confession" Thrown Out, While CIA Wins Torture Secrecy Ruling

From the Miami Herald, 10/28/08:

GUANTANAMO BAY NAVY BASE, Cuba -- In a first, a military judge ruled on Tuesday that a Guantánamo detainee's confession was extracted through torture, and excluded it from the trial of a young Afghan detainee at the war court.

Afghan police threatened the family of teenager Mohammed Jawad while he was undergoing interrogation at a Kabul police station, said Army Col. Stephen Henley, the judge, in a three-page ruling.

Jawad, who was a teenager at the time of his capture in Afghanistan, has been fighting to have the charges against him dismissed. The recognition by the military court that death threats constitute torture, means his coerced confession cannot be used at his upcoming trial, due to start January 5, 2009.

According to attorney Jamil Dakwar, a military commissions observer for the American Civil Liberties Union, the judge's ruling rejects the "legal opinion by Bush administration lawyers that early on sought to soften the definition of torture by sanctioning threats to family members."

The Jawad case has highlighted the inherent unfairness of the military commissions process, established by Congress at the insistence of the Bush Administration. (For those interested, John McCain supported the Military Commissions bill, while Barack Obama opposed it.) Just a few weeks ago, the involvement of the Behavioral Science Consultation Teams (BSCTs) in the torture of Jawad at Gitmo was exposed. Last month, one of the Jawad's military prosecutors quit, charging the government with suppression of exculpatory evidence in Jawad's case.

USA Today's blog, On Deadline, has published a selection from Col. Henley's ruling (the entire ruling can be accessed here):

The Accused now moves this Military Commission to suppress all statements he made to Afghan government authorities on December 17, 2002 because they were obtained by the use of torture, as that term is defined in the Military Commission Rules of Evidence (MCRE).

A statement obtained by the use of torture shall not be admitted into evidence. “Torture” includes statements obtained by use of death threats to the speaker or his family; the actual infliction of physical or mental injury is not required. Instead, the relevant inquiry is whether the threat was specifically intended to inflict severe physical or mental pain or suffering upon another person within the interrogator’s custody or control. In this case, the Afghan government and police authorities told the Accused he and his family would be killed if he did not confess to throwing the grenade. The interrogators were armed. There is no evidence the threats were made in jest or intended as a joke. Given the Accused’s age and the then reputation of the Afghan police as corrupt and violent, the Commission specifically finds these threats credible.

Evidence that someone died or suffered severe injury is not required for the Commission to determine that the threat to kill the Accused and his family was intended to inflict severe physical or mental pain or suffering. On this point, the Commission can not envision a situation where a credible threat to kill someone unless they confess would not satisfy the “act specifically intended to inflict severe physical or mental pain or suffering” requirement in the MCRE definition of torture.

While the torture threshold is admittedly high, it is met in this case.

While Jawad's attorneys have been able to thread the needle in Jawad's case, and get the MC judge to rule that he was tortured, even by the MCRE's narrow definition of torture, the use of coerced confessions and reliance on evidence produced by torture remains a fixture of the MCRE process. It's an embarrassment and a crime that it was ever a question whether death threats by interrogators constituted torture of a detainee.

Meanwhile, CIA Wins Torture Secrecy Ruling

Consider another court ruling just released: according to Wired, Chief Judge Royce Lamberth of the Washington D.C. Circuit Court ruled that "the CIA can hide statements from imprisoned suspected terrorists that the agency tortured them in its set of secret prisons." The ruling states that judicial review of allegations of torture from prisoners such as Khalid Sheihk Muhammad would jeopardize national security. (Link to Lamberth's ruling -- For all of you FISA fans: Judge Lamberth is remembered as FISA's secret spy court from 1995 to 2002.)

From the Wired article:

"The Court, giving deference to the agency’s detailed, good-faith declaration, is disinclined to second-guess the agency in its area of expertise through in camera review," Lamberth wrote (.pdf), referring to a procedure where a judge looks at evidence in his chamber without showing it to the opposing side....

"Among the details that cannot be publicly released are the conditions of the detainees’ capture, the employment of alternative interrogation methods, and other operational details," the CIA's Wendy Hilton told the court in a sworn affidavit (.pdf). "Specifically, disclosure of such information is reasonably likely to degrade the CIA's ability to effectively question terrorist detainees and elicit information necessary to protect the American people."

The CIA also successfully argued that it needed to redact statements about what countries were involved in the program, saying that such allegations could destroy relationships with countries that helped with the CIA's controversial program of secretly kidnapping suspected terrorists and shuttling them to hidden prisons in Europe and Asia, where neither families nor the Red Cross knew of their detention.

Transcripts from each of the 14 detainee's Combatant Status Review Tribunals in Guantanamo Bay were provided to the ACLU and posted to the Pentagon's website in the summer of 2007. Six of those included some redactions.

While one can be happy that Mohammad Jawad, imprisoned over five years now, may be able with the current ruling to more effectively fight the bogus charges against him, Lambeth's ruling shows just how far we have to go in the fight against torture in this country.