Blog
Published on July 31, 2008
Sahr MuhammedAlly – a lawyer at Human Rights First in the Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.
Guantánamo Bay, July 30, 2008: On July 28, Navy Captain Judge Keith Allred, the military commission judge in Salim Hamdan’s trial, sanctioned the government for failing to share with the defense relevant discovery that provides new details about Hamdan’s more-than-six-years of confinement at Guantánamo. The government handed over 500 pages of documents to the defense just 12 hours before the July 21 start of the trial, despite multiple court orders and requests for discovery dating back to 2007. Because his court order regarding discovery had been ignored, Judge Allred stated that he would presumptively exclude statements extracted from Hamdan’s May 2003 interrogation unless the government could show by clear and convincing evidence that the evidence is reliable and should be admitted in the interest of justice.
The purportedly incriminating statements at issue allegedly were made by Hamdan in May 2003 to Pentagon counterintelligence agent Robert McFadden. Defense lawyers learned from the evidence turned over by the prosecution that Hamdan had been deprived of sleep prior to the interrogation. On July 16, during pre-trial proceedings, Hamdan testified that, while in Guantánamo, he had been subjected to sleep deprivation, felt great anxiety after having comfort items removed for hours or days before an interrogation, and was touched and sexually humiliated by a female interrogator. Notably, at today’s press conference, Deputy Chief Defense Counsel Mike Berrigan stated that a “secret document” written by a female interrogator describes her actions, which support Hamdan’s allegations of sexual humiliation, but the document was given to the defense only in the last week.
The rules of the military commission, unlike the rules of evidence in courts-martial or the federal civilian court system, allow for evidence obtained under coercive conditions to be admitted provided the government can show by a preponderance of evidence that the statements are reliable and should be introduced in the interests of justice. Judge Allred’s July 28 sanction order raised the government’s burden to a clear and convincing standard because of its failure to produce discovery in a timely manner. Judge Allred admonished the government, saying, “You’re on the hot seat because of unsatisfactory performance of discovery.”
Two days later, on July 30, the government attempted to meet this higher burden of proof for admission of the May 2003 statements. The government tendered two witnesses, both currently assigned to Joint Task Force Guantánamo, to testify – on the basis of Hamdan’s 2003 detention logs – that Hamdan was not subjected to coercive techniques prior to his interrogation. To this observer, they failed. On cross-examination we learned that the two government witnesses were not in Guantánamo in 2003, never even spoke to the guards who moved Hamdan five years ago from cell to cell or to the intelligence officers who interrogated him in 2003, and thus could not credibly state what happened to Hamdan in May 2003. Instead we learned, in response to a question posed by Judge Allred, that intelligence officers at Guantánamo can change a detainee’s living conditions for the worse independent of any disciplinary reasons.
Hamdan’s statements made at Bagram Air Field in Afghanistan already had been found inadmissible by Judge Allred because the coercive nature under which they were made rendered them unreliable. In Guantánamo, Hamdan was interrogated more than 40 times, but McFadden is the only agent who says Hamdan admitted to having sworn loyalty to Osama bin Laden. Hamdan denies making this statement. McFadden’s testimony would, to any observer, be all the more necessary for the prosecution’s case. It thus seems remarkable that the government would even risk this testimony being excluded by not complying with discovery orders.
Why would the government take such a risk? To shield abusive conduct.
The May 2008 Justice Department Inspector General’s report on coercive interrogation techniques used on Guantánamo detainees described sleep deprivation as the most frequent technique used on detainees to induce cooperation. In November 2002, the Pentagon’s General Counsel approved (among other techniques) sleep deprivation, removal of clothing and stress positions for use on Guantánamo prisoners. And in April 2003 – the month before Hamdan’s disputed interrogation – Secretary of Defense Donald Rumsfeld approved “sleep adjustment” as an interrogation technique to be used in Guantánamo. Human Rights First has previously reported on these and other abusive interrogation techniques in our August 2007 report (with Physicians for Human Rights), Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, and our April 2008 report, Tortured Justice: Using Coerced Evidence to Prosecute Terrorist Suspects.
In the prosecution’s closing argument in favor of admitting Hamdan’s May 2003 statements, it argued that Judge Allred has the power, by allowing Agent McFadden to testify, to clear the “black clouds” of torture and other cruel abuses authorized at the highest levels of the U.S. government that hang over the military commission system at Guantánamo. This task is far beyond the power of Judge Allred. Allowing McFadden’s testimony in these circumstances, however, would only darken those clouds.
