JUDGE DECLARES ACCUSED WAS TORTURED

chicagotribune.com
Gitmo judge tosses out detainee confession obtained through torture by Afghans
By DAVID McFADDEN

Associated Press Writer

10:38 PM CDT, October 28, 2008
GUANTANAMO BAY NAVAL BASE, Cuba (AP) _ A U.S. military judge barred the Pentagon Tuesday from using a Guantanamo prisoner's confession to Afghan authorities as trial evidence, saying it was obtained through torture.Army Col. Stephen Henley said Mohammed Jawad's statements "were obtained by physical intimidation and threats of death which, under the circumstances, constitute torture."Jawad's defense attorney, Air Force Maj. David Frakt, told The Associated Press that the ruling removes "the lynchpin of the government's case.

"Guantanamo's chief prosecutor, Army Col. Lawrence Morris, said he recognized how the judge made his decision and needed to study the ruling before making more comments.

Jawad, who was still a teenager at the time, is accused of injuring two U.S. soldiers with a grenade in 2002. He allegedly said during his interrogation in Kabul that he hoped the Americans died, and would do it again.

But Henley said Jawad confessed only after police commanders and high-ranking Afghan government officials threatened to kill him and his family — a strategy intended to inflict severe pain that constitutes torture.

"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," Henley wrote in response to a defense motion to suppress the evidence. "It was a credible threat.

"Frakt said the ruling is a "further disintegration of the government's case," and that the Afghans' descriptions of Jawad's confession were never credible to begin with. He also praised the judge for "adopting a traditional definition of torture rather than making one up.

"The judge said torture includes statements obtained by use of death threats to the speaker or his family, and that actual physical or mental injury is not required. "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," Henley wrote.

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.

"Tuesday's ruling comes a few weeks after Jawad's former Guantanamo prosecutor, U.S. Army Lt. Col. Darrel Vandeveld, quit after what he described as a crisis of conscience over the ethical handling of cases at the U.S. base.He said evidence he saw — some of which was withheld from defense attorneys — suggested Jawad may have been drugged before the 2002 attack.

Copyright 2008 Associated Press.