Military Commission Judge Finds Torture-Extracted Confession Inadmissible

Yesterday, for the first time, a U.S. military judge at Guantánamo ruled that a prisoner's confession was extracted through torture, as defined by the Military Commission Rules of Evidence. The judge barred the government from using the detainee's confession as evidence during a military commission trial.

The judge made the ruling in the case of Mohammad Jawad, an Afghan citizen who was a juvenile when he was captured in December 2002. He is accused of throwing a grenade and wounding two U.S. soldiers and their Afghan interpreter. After his capture, Jawad was interrogated by armed Afghan officials who, as Jawad stated in a September 2008 declaration admitted as evidence, threatened to kill Jawad and his family. The decision states:

During the interrogation, someone told the Accused, "You will be killed if you do not confess to the grenade attack," and, "We will arrest your family and kill them if you do not confess," or words to that effect. The speaker meant what he said; it was a credible threat.

In his ruling, the judge, Army Col. Stephen Henley, also indicated that there was reason to believe that Jawad was under the influence of drugs at the time of his forced confession. Jawad was subsequently turned over to U.S. forces and transferred to Guantánamo where he has been detained since the beginning of 2003, and where he was also subjected to cruelty and abuse, including through the euphemistically-named "frequent flyer program."

The Jawad case has been the center of much attention lately. You may recall that the lead prosecutor in the case, Lt. Col. Darrel Vandeveld, resigned in September because he believed that he could not ethically proceed with the case.

An Associated Press story on the ruling quoted the ACLU's Hina Shamsi, who has monitored numerous military commission proceedings at Guantánamo, including the hearing that led to the judge's decision yesterday:

Hina Shamsi, an attorney with the American Civil Liberties Union, welcomed the ruling, but alleged "evidence obtained through torture and coercion is pervasive in military commission cases that, by design, disregard the most fundamental due process rights, and no single decision can cure that."

Jawad's statements in Afghan custody were key to the government's case against him. Now that we know how those statements were obtained, the question is if and how the case can fairly proceed. Stay tuned.