The military tribunals of terror suspects at Guantánamo suffered a serious legal setback this week this time, not at the hands of any civilian judges but by the ruling of one of the military's own jurists. Navy Judge Captain Keith Allred, hearing the first U.S. military commission trial since World War II, tossed out statements by Osama bin Laden's driver, Salim Ahmed Hamdan, because he believes they were obtained under "highly coercive" conditions. That doesn't bode well for future tribunals in cases where U.S. interrogators used even harsher techniques such as the waterboarding used on confessed 9/11 mastermind Khalid Sheikh Mohammed to extract confessions from suspected al-Qaeda members.
"This is a watershed moment because for many of these people, these kinds of statements by themselves or from other detainees are all the evidence there is," says Joshua Dratel, a New York City lawyer who represented terror suspect David Hicks during the Australian's stay at Guantánamo. "For the high-value detainees, there's an acknowledgement that a lot more [was done] to them in the black sites waterboarding and other serious forms of abuse and you really have to wonder if anything said under those conditions can be [considered] reliable and fair [evidence]."
Legal experts inside and outside the Pentagon were scrambling Tuesday to figure out the impact of Captain Allred's Monday-night decision to bar statements Hamdan made after his capture in Afghanistan in late 2001. Hamdan had been bound hand and foot 24 hours a day, sometimes with a bag over his head, in what amounted to solitary confinement at Kabul's Bagram air base, Allred said in a 16-page ruling. "The interests of justice are not served by admitting these statements," Allred ruled, "because of the highly coercive environments and conditions under which they were made."
Allred's ruling is significant because of the flexibility available to military commissions in accepting evidence. The commission's rules, unlike those used in civilian trials, allow the admission of pre-2005 testimony gleaned during "cruel" and "inhuman" interrogations, so long as the judge deems that evidence relevant and reliable. The rules also permit hearsay evidence. The judge said he would not bar statements Hamdan made after arriving at Guantánamo, where the trial's opening arguments took place Tuesday. But he insisted that prosecutors present the interrogators involved to explain the conditions under which Hamdan made those statements.
Legal scholars will be paying close attention to see if Allred continues to crimp the government's case. "The decision may have a significant impact on Mr. Hamdan's case, but it doesn't change the fact that the system in place allows for the introduction of coerced evidence," says Deborah Colson, who has dealt with the Guantánamo proceedings as a lawyer with Human Rights First. "It doesn't change the fact that the system is fundamentally flawed."
Eugene Fidell, a Washington attorney and president of the independent National Institute of Military Justice, says the decision could represent some military-justice muscle-flexing. "The lawyers who make up the military-justice community have felt dissed as a group and are feeling, perhaps, emboldened as a group," he says. Yet Fidell says he takes solace from Allred's decision. "My concern over the run-up to this is that we would wind up watching the legal equivalent of a cult movie, where everybody knows the next line," he says. "This shows it's not a cult movie, although that's not saying very much. But at least it's not an exercise in legal somnambulism."