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Breakthrough on torture

In the first ruling of its kind, a federal judge on Friday barred the federal government from using any statements made by a Guantanamo Bay detainee since he was captured in Afghanistan more than six years ago, finding that all of them were “a product of torture.”  U.S. District Judge Ellen Segal Huvelle did so two days after the Obama Administration notified her that it would not oppose the efforts by lawyers for Mohammed Jawad to block the use of any of those statements as a basis for keeping him in captivity.

Although many of the more than 200 detainees still being held at Guantanamo have attempted to bar the use of statements they have made while imprisoned, the Huvelle order was the first to grant a suppression motion tied to claims of abuse or mistreatment.  She did so in this order issued in the case that has the title Al Halmandy, et al., v. Obama, et al. (District Court docket 05-2385).

It is unclear whether the Administration’s willingness to have all of Jawad’s statements ruled out of court represents a change in position it will take in other habeas cases, although officials have said they would not use evidence derived from torture in any prosecution of detainees on war crimes or other criminal charges.  Some of the facts involving Jawad are very unusual for a detainee — particularly his young age at the time of his initial capture.

Jawad, who was born in an Afghan refugee camp in Pakistan, was believed to be no older than 14, and maybe as young as 12, when he was arrested in Kabul, Afghanistan, in December 2002 by Afghan police.  They accused him of throwing a hand grenade that injured two U.S. soldiers and their Afghan interpreter.  He later gave a confession that his lawyers — and, more recently, a military judge at Guantanamo — have found to be unreliable.

In a lengthy motion (partially classified) that was filed July 1 before Judge Huvelle, Jawad’s lawyers contended that, since his arrest, he “has been subjected to repeated torture and other mistreatment in a systematic and sustained program of highly coercive interrogations.”  While being held by Afghan officials, later by the U.S. military in Afghanistan, and by the U.S. military after he was sent to Guantanamo, the torture and coercive interrogation continued for prolonged periods, the motion asserted.  It noted that the U.S. military judge at Guantanamo presiding over a war crimes case against Jawad had barred the use as evidence of many of those statements.  But, his lawyers added, the Justice Department continued to rely upon them in Jawad’s habeas case to buttress their case for holding him further.  His lawyers asked Judge Huvelle to rule out all of those statements.

Ordered by the judge to respond, the Justice Department on Wednesday said simply that it did not oppose the suppression motion.  The response is here.  It asked the judge to postpone further activity in Jawad’s habeas case until early August, to give government officials a chance “to consult internally to determine” how to proceed in the case.

Huvelle, however, went ahead with a hearing on Thursday, where she sharply criticized the government’s past actions and refused any further delay in the case. She put her oral ruling into written form on Friday.  In the order, she said the trial on Jawad’s challenge to his detention will go ahead on Aug. 5.

“Permitting the government to take additional time,” the order said, “would be contrary to the Supreme Court’s directive [in Boumediene v. Bush in 2008] that ‘the costs of delay can no longer be borne by those who are held in custody.’ “