Tortured Confession Evidence Tossed In First Day Of Hamdan Trial

The Bushco Torture Brigade is on a bad luck streak in dancing school. Four beatdowns by the Supreme Court on the legality/Constitutionality of their torture and trial program is beyond bad. Four drubbings of this type for a Presidential Administration, during a supposed time of war, is simply unheard of.

When Bushco got the ruling late last week that they could proceed with their first gulag trial against Salim Hamdan, they were ecstatic. Smug in the self satisfaction that the first show trial, of the many they have been pining for, would not be further delayed, Hamdan was rushed to the Guantanamo dock and the trial commenced this morning. So far, so good.

But wait, there’s more; and it’s not good for Bushco’s cherished show trial dreams. Not even one full day into the show, and even the hand selected military judge, Keith Allred, is sending Bushco up the proverbial creek without their torture evidence paddle. From the CBC:

Judge Keith Allred, the navy captain presiding at the trial, decided Monday to bar evidence obtained from Hamdan by interrogators under “highly coercive” conditions in Afghanistan, saying prosecutors cannot use statements he made shortly after his capture at the Bagram air base and Panshir in Afghanistan.

Hamdan has said he endured beatings and solitary confinement at those locations.

The judge left the door open for the prosecution to use other statements Hamdan gave elsewhere in Afghanistan and at Guantanamo.

Michael Berrigan, the deputy chief defence counsel, described the ruling as a major blow to the tribunal system that allows hearsay and evidence obtained through coercion.

“It’s a very significant ruling because these prosecutions are built to make full advantage of statements obtained from detainees,” he said.

Berrigan is exactly right, this is a major blow. And it is a blow with far reaching consequences too, because it sets the tone, in an absolutely blistering manner, for the considerations on the Habeas petitions about to be considered by Royce Lamberth’s designated judge, Tom Hogan. What will the government do now? Ah, well…

Prosecutors are considering whether to appeal the judge’s ruling — a development that could halt the trial of Salim Hamdan that began earlier Monday after years of delays and legal setbacks.

“We need to evaluate … to what extent it has an impact on our ability to fully portray his criminality in this case, but also what it might set out for future cases,” said Army Col. Lawrence Morris, the tribunals’ chief prosecutor.

Irony is a bitch when you are a Bush.

UPDATE: An additional portion from the bottom of the MSNBC report that I overlooked (h/t Frank Probst) when writing the initial post relates:

In addition to the other interrogations, the judge said he would throw out statements whenever a government witness is unavailable to vouch for the questioners’ tactics. He also withheld a ruling on a key interrogation at Guantanamo in May 2003 until defense lawyers can review roughly 600 pages of confinement records provided by the government on Sunday night.

This is incredibly significant. If Judge Allred follows through with this determination as stated in the above report, it is of unbelievable far reaching significance. Said position by Allred effectively indicates that all confessions by Hamdan (and arguably the remaining detainees when brought to trial too) will be presumed coerced or otherwise inadmissible without foundational testimony from a government officer or agent, with a sufficient nexus to the case to be credible, being made on the record. Although, at first blush, it would not seem to require live testimony, it would require a live human being going on the official record to vouch to a court of law that abusive actions/torture were not behind each and every statement by the defendant sought to be used. It is extremely hard to imagine who, at this point, is going to be willing to do that.

It is impossible to really nail down the exact parameters of Allred’s rulings, and the full scope of the implications therefrom, without being able to see the official language of the order or transcript. There is, however, preliminary reason to believe that this may be a game changing moment with monumental ramifications to the entire detainee trial process. There is, as stated above, no way that this will not bleed over to the DC District courtroom of Judge Thomas Hogan and his considerations of the Habeas petitions.

Cheney, Addington, and all of King George’s horses and men will be furiously seeking to have the Democratically controlled Congress serve their whims and bail them out again through legislation sanctioning and ratifying their unconscionable acts. As Marcy said:

Sadly, Mukasey knows he’s got a really compliant Congress going into an election season, a Congress which has shown absolutely no ability to withstand requests like this, even if they are transparently designed to help the Administration avoid consequences for its actions.

So what’s it going to be Democratic leadership? You have already sold out the American people and the Fourth Amendment to their Constitution with your craven cave on the FISA crimes; are you going to apply the coup de gras and sell out the Geneva Conventions, the Torture Conventions and basic humanity too?

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  1. BillE says:

    Just what the doctor ordered. A nice crow cocktail.

    With Radovan Karazdic just recently caught, a question for our viewers.

    Who will be the first Bushie to find themselves in a cell at the Hague? Which of the conceited morons will actually travel overseas and get nailed? I am betting it would be Rumsfeld or Tennet.

    • PetePierce says:

      The chances of that are slim, none, and freezing day in the Southern US in July. What is more likely are that they are assasinated either here (you bet your ass cells are alive well and vibrant to strike here) are outside the US.

      • stryder says:

        Remember that attempted “citizens arrest” of Bolton.Phillip Sands reinterated the fact that they will be dealt with if we don’t.He’s serious.
        I don’t think Bush could get the military support to go after the Hague if they snaged someone do you?

  2. masaccio says:

    The NYT doesn’t seem to have a link to a ruling. How the heck does he distinguish among the various statements: this one is barred because of torture, but the later one was ok, but not the one after that.

  3. MadDog says:

    As much as I take unseemly pleasure from the never-ending judicial slapdowns of this Administration, I can’t but help but be concerned that there is a further painful price to pay.

    Because no matter how badly this Administration repeatedly screws things up, the only worse thing to consider is the simple fact that someone else will have to clean it all up.

    Shorter MadDog worry: “They broke it, but we get to own it.”

  4. readerOfTeaLeaves says:

    This ought to ramp up Mukasey’s efforts to yank power away from the courts. Clearly, they’re not ‘reliable’. Someone hand Scalia smelling salts if he reads this decision.

  5. FrankProbst says:

    From the msnbc link:

    In addition to the other interrogations, the judge said he would throw out statements whenever a government witness is unavailable to vouch for the questioners’ tactics.

    I’ll bet you a dollar to a doughnut that this judge is going to be gone by the end of the week. The judge is pretty much saying that if you want to claim that Hamdan said something, you’re going to have to cough up someone who will go on the record and certify that he wasn’t being tortured when he supposedly said it. No one in their right mind is going to want to do that, and they’d be open to a very nasty cross-examination if they did. That’s not going to happen. The only way around it is to replace the judge. He’s a goner.

    • readerOfTeaLeaves says:

      Perhaps, but I thought he was career military and given all the focus on this case and the trial, Bu$hCo doesn’t really have options, do they?

      • FrankProbst says:

        Perhaps, but I thought he was career military and given all the focus on this case and the trial, Bu$hCo doesn’t really have options, do they?

        I assume you’re kidding.

        If he’s not doing what Bu$hCo wants, he’s obviously a traitor. And it’s not like they’ve never interfered with this process before. I think he’ll be spending more time with his family by Saturday.

        • skdadl says:

          Well, it’s worth remembering that Allred is the judge who bounced Hartmann from this case for politicizing it — that was in May, and Allred is still around. I’ve seen people speculate that that may get Hartmann pulled from the later trials as well.

          There was, though, Judge Brownback, who suddenly “retired” in the middle of pre-trial hearings for Khadr. He had been requiring the prosecution to produce Khadr’s interrogation logs and threatened to halt proceedings if they weren’t produced.

          Anyway, this is a great decision, and I hope it is as momentous as bmaz thinks it could be. There have been too many of these decisions now at several levels — it would be scandalous of Congress to ignore the weight of legal opinion that is building up.

          I can hear Mukasey whining from here, though. Tomorrow before the HJC — oh, I hope someone is prepared to stand firm.

    • bmaz says:

      Ooh, I had not seen that when I wrote this; I am off to take a look for that angle. That is huge if so. Be back shortly…

      • FrankProbst says:

        Ooh, I had not seen that when I wrote this; I am off to take a look for that angle. That is huge if so. Be back shortly…

        What’s the verdict? Did I read it right?

        • bmaz says:

          Far as I can tell at this point you sure did. I have made a lengthy update to the main post that I will also post here in comments. It is really hard to make this critical kind of analysis from a couple of common news reports from sources likely viewing the trial proceedings remotely, at best. So it is all subject to change. As it stands from what we have seen so far though, this story is just huge.

          UPDATE: An additional portion from the bottom of the MSNBC report that I overlooked (h/t Frank Probst) when writing the initial post relates:

          In addition to the other interrogations, the judge said he would throw out statements whenever a government witness is unavailable to vouch for the questioners’ tactics. He also withheld a ruling on a key interrogation at Guantanamo in May 2003 until defense lawyers can review roughly 600 pages of confinement records provided by the government on Sunday night.

          This is incredibly significant. If Judge Allred follows through with this determination as stated in the above report, it is of unbelievable far reaching significance. Said position by Allred effectively indicates that all confessions by Hamdan (and arguably the remaining detainees when brought to trial too) will be presumed coerced or otherwise inadmissible without foundational testimony from a government officer or agent, with a sufficient nexus to the case to be credible, being made on the record. Although, at first blush, it would not seem to require live testimony, it would require a live human being going on the official record to vouch to a court of law that abusive actions/torture were not behind each and every statement by the defendant sought to be used. It is extremely hard to imagine who, at this point, is going to be willing to do that.

          It is impossible to really nail down the exact parameters of Allred’s rulings, and the full scope of the implications therefrom, without being able to see the official language of the order or transcript. There is, however, preliminary reason to believe that this may be a game changing moment with monumental ramifications to the entire detainee trial process. There is, as stated above, no way that this will not bleed over to the DC District courtroom of Judge Thomas Hogan and his considerations of the Habeas petitions.

          Cheney, Addington, and all of King George’s horses and men will be furiously seeking to have the Democratically controlled Congress serve their whims and bail them out again through legislation sanctioning and ratifying their unconscionable acts. As Marcy said:

          Sadly, Mukasey knows he’s got a really compliant Congress going into an election seasons, a Congress which has shown absolutely no ability to withstand requests like this, even if they are transparently designed to help the Administration avoid consequences for its actions.

          So what’s it going to be Democratic leadership? You have already sold out the American people and the Fourth Amendment to their Constitution with your craven cave on the FISA crimes; are you going to apply the coup de gras and sell out the Geneva Conventions, the Torture Conventions and basic humanity too?

    • rteolis says:

      I agree that Allred will be gone soon. The rules seem tailor made for having a hand selected, Bush-loyal judge in place to achieve a foregone conclusion/verdict. The judges have been granted a lot of power though the military commissions act.

      Legal analysts familiar with the military justice system praise it for its fundamental fairness. But the special military commission that hears Mr. Hamdan’s case will not be operating under the same procedures and legal protections available to American military personnel when they stand trial.

      Allred can admit hearsay evidence if he believes it is accurate and reveals something important about Hamdan’s activities. In contrast, hearsay is routinely excluded from American trials.

      The Military Commissions Act of 2006 forbids the use of any evidence obtained through torture. But it permits the judge to admit hearsay evidence obtained from individuals subjected to coercive interrogation techniques – including, potentially, waterboarding, if the judge decides waterboarding is not torture.

      Administration officials have defended this provision as necessary to protect sensitive intelligence sources and methods used in the war on terror.

      So, new judge admits hearsay evidence, new judge decides the hearsay wasn’t obtained through torture, judge decides hearsay valid but top secret, booga-booga-protect national security-booga-booga, detainee is convicted.

      Oh yes, then conviction is appealed in 2 years and overturned and a new talking point is created for the next election cycle blaming the Dems for failing to create a system that can handle the “worst of the worst”.

  6. Hmmm says:

    I so very badly want to believe there are career grownups like Allred all throughout the USG who in these waning months will finally stand their ground and say No to all this: “No, I will not cooperate any more, I will hold the line here, and I will occupy this position for just these last few months more. I can do this.”

  7. PetePierce says:

    From Scotus Blog:

    By Friday, both sides in the Guantanamo Bay detainee cases must file legal briefs on a series of issues about the shape the District Court’s habeas review will take during and after the coordinating phase for more than 240 cases.

    No petitioners’ merits briefs are due this week. The respondent’s merits brief is due Monday in Arizona v. Gant (07-542).

  8. JamesJoyce says:

    “Self Protection?” Mukasey, Forefathers gave us impeachment, as a form of “self protection” from corrupt self serving corpo aristocrats. Sadly the leveraging of energy issues against Americans and the people of Iraq by ‘oil interests” is the reality. Protect that flow of tea oil, the modern east India tea Company? Business as usual???

  9. azportsider says:

    “So what’s it going to be Democratic leadership? You have already sold out the American people and the Fourth Amendment to their Constitution with your craven cave on the FISA crimes; are you going to apply the coup de gras and sell out the Geneva Conventions, the Torture Conventions and basic humanity too?”

    Yes. Next question, please.

  10. emptywheel says:

    Here’s the key parts of the decision:

    1. The motion to suppress is denied as it pertains to the capture videos. The totality of the circumstances renders these statements reliable and possessing sufficient probative value.
    [snip]
    2. The Motion is granted as to any statement for which the Government does not produce an official involved in the taking of the statement, who can authenticate the statement, describe the conditions under which it was made, and submit to cross examination.

    3. The motion is granted as to statements of the accused made in Panshir and Bagram. The interests of justice are not served by admitting these statements because of the highly coercive environments and conditions under which they were made.

    4. To the extent the motion raises issues of coercion after Hamdan arrived in Guantanamo, these are resolved against the accused. While Hamdan was exposed to a a variety of coercive influences over the past seven years, some of these were rationally related to good order and discipline in the camp, some were imposed as a result of his own misconduct as disciplinary measures, and others were likely imposed to encourage his cooperation with camp rules and procedures generally.

    Two more interesting bits. The decision notes that there was a change in the way Hamdan’s interrogators treated him. Originally, they considered him a source (last week, one of the FBI interrogators called him a snitch). But then, only much later, they considered him a suspect. If I were his lawyer, I’d be all over that.

    Also, what Allred has decided to include is evidence taken in Gitmo–at which Hamdan was once sexually humiliated, at least once improperly put in solitary, and force fed during a hunger strike.

    • masaccio says:

      Judge Allred’s decision, insofar as it relates to the change from snitch to suspect, amounts to acceptance of the FBI’s idea of sterilization. They said that if one group is torturing or otherwise acting out of line in dealing with the witness, their people could wait a couple of days, and then any statement would be good.

      I’ll try to flesh this out later, but duty calls.

      • emptywheel says:

        I think I raised it for a different reason. Compare Hamdan’s fate with that of Jamal al-Fadl, the former al Qaeda member who served as a key source for the WTC bombing trial. Granted, al-Fadl went further out of his way to make himself available to the US; Hamdan only did so after he saw two other people get killed by out of control ATF agents.

        That said, ALL of the most important evidence against him will come from the period when he was giving the US a ton of information. He was trying to cooperate and he was giving them a ton of good intelligence.

        But that’s going to get him a life sentence.

        Now, I’m frankly not that worked up about the issue of Miranda rights on the battlefield, not least because the people we’re detaining either don’t know what it means or know to ask for a lawyer.

        But I do wonder about the wisdom of convicting someone, to life in prison, because he gave a roadmap to AQ’s local operations in Afghanistan in the middle of a war. Particularly since Hamdan’s trial, being first, is going to get a lot of publicity, it basically disincents voluntary intelligence cooperation.

        • masaccio says:

          EW, I’m not that interested in Hamdan’s fifth amendment claims either, and I see the point you make. It will indeed make a big difference.

          In the working thread on the OIG report, I said this

          184/438 FBI agents raised the issue of interrogations where the military (or someone) uses rough stuff, and then the FBI comes in with its rapport building techniques. It looks like a Mutt and Jeff routine, and the agents were concerned that they would be deemed to be participating in illegal interrogations. They were looking for advice as to how long they had to wait for the illegal stuff to wear off. There doesn’t seem to be any answer here either, maybe a “totality of the circumstances test”, and, of course, there is the proble of whether the agent knew what was illegal for a specific agency.

          Sure makes FBI redo of the investigations for use in these show trials look unlikely.

          The answer to the question is in my comment at 124:

          187/438. How long between the time when the detainee is subjected to “severe physical conditions” and the time when the FBI can interview them? The “cooling-off period” is 12 hours, according to the FBI Office of General Counsel.

          So, the FBI leadership thought that the effects of coercion wear off in 12 hours? I thought this would be a problem, but Judge Allred appears to think that there is some time frame in which coercion can wear off.

          I quote this from the opinion on the legal standard for admissibility in cases where coercion is alleged:

          Statements made where the “degree of coercion inherent in the production of a statement offered by either party is disputed, such statement may only be admitted” if the military judge determines, after a hearing, that (1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and (2) the interests of justice would be best served by admission of the statement into evidence. 10 U.S.C. § 948r(c), (d); MCRE 304(c).

          Note that this is transcribed, since the document isn’t searchable.

          Defense counsel asserted that the statements were coerced, and Judge deals with this argument in his discussion of the admissibility of each statement. He apparently is saying that whatever coercive effect there may have been was insufficient to prevent use of the statements under the applicable rule.

    • JimWhite says:

      What are the chances the government will suddenly rediscover thousands of hours of videotape in an effort to address issue number 2 in your list? I realize the video can’t be cross-examined but it seems the government might give that a try.

      • emptywheel says:

        Limited. In this case, the only coercion shown on the video is of a guy standing with a weapon nearby. I’m sure most of the videos show something dramatically different.

  11. emptywheel says:

    So let me add–I don’t think this ruling will have much effect against Hamdan, though I’m not sure the case is that strong anyway (Hamdan, in one of the permitted interrogations, said he borrowed the car with the missile launchers), so that charge will be utterly circumstantial and may come down to KSM testimony. The other charge has to do with his presence at a OBL speech talking about jihad. That’ll be more interesting, since he claims he wanted to fight jihad against the Norther Alliance.

    Honestly, this trial may come down more to what KSM and some of the other HVDs say–and how they’re allowed to say it–than to interrogation evidence.

    That said, the standards on interrogation that Allred has set will make it very hard to try KSM (if he weren’t intent on being a martyr).

  12. GeorgeSimian says:

    I thought the reason they tortured was to get valuable information about possible threats. I don’t remember anyone saying that one of the reasons they tortured was to get a confession and make it easier to build their case. Is that just a side-effect?

  13. JTMinIA says:

    Is there any chance that Mukasey knew this decision was coming and that’s another reason why he went “on the offensive” in the AEI speech?

  14. WilliamOckham says:

    Here’s something interesting from the ruling. The judge specifically mentions the DOJ IG’s report as supporting the allegation of a coercive atmosphere at GITMO. Also, reserving judgment on the 17 May 2003 statement (btw, that’s a typo in item 50 on p. 8 where it says 17 May 2007, right?) is very significant. Most of the case is built around that statement which was a ’summing up’ of everything Hamdan had told them.

    The judge is letting in a lot of coerced testimony that would never fly in a civilian courtroom. That’s disappointing, but not unexpected. The fact that he’s forcing the prosecution to make the interrogators available (even for cross examination) could really be the end of the show trials and the torture regime.

    • emptywheel says:

      I think one thing he’s setting up is a debate about sleep deprivation. He states Operation Sandman (which I think is the frequent flyer program) was about keeping control in the prison. It begins after the May 17 statement.

      But where this seems to be going is that McFadden and Souffan are good, trained interrogators with a knowledge of Islamic culture. So their interview, by itself, would be admissible (and note the efforts to “clean” what they did from the Behavioral team). The question is was it sufficiently clean from what came before, including the sexual humiliation?

      • bmaz says:

        Good morning folks. I looked on the Miami Herald/Rosenberg for a good story when I started last night (you’ve got me halfway trained; better than my mother or wife has done yet) and couldn’t find anything that helpful yet. Either they didn’t have it up yet, or at that time it was tucked where I didn’t find it.

        Ok, I have not had time to take in all the additional material available this morning that was not last night, but I am pleasantly surprised that the thing truly appear to be pretty much as I had deduced. I both agree and disagree (yes, I realize that is perilous) with Marcy when she says @26

        I don’t think this ruling will have much effect against Hamdan

        But that in in the micro versus the macro to Hamdan. He is going to get convicted of something substantial if the trial continues (And the government may be hesitant to stop and appeal, as I pointed out, that has’t been working to their benefit much lately), so the real keys are what is he convicted of and on what basis. In that regard, I am sticking with my original assessment which WO expounded on when he said that although

        The judge is letting in a lot of coerced testimony that would never fly in a civilian courtroom. That’s disappointing, but not unexpected. The fact that he’s forcing the prosecution to make the interrogators available (even for cross examination) could really be the end of the show trials and the torture regime.

        To me the requirement of an actual tested by cross examination foundation for the admission of statements is a cruncher for the government. Who wants to be the guy to put his ass in that little wringer? Even if I was one of those guys and knew that my part was clean, I wouldn’t want to be in that spot – how do you have any confidence you won’t get placed in a posture you don’t want after taking the stand and opening the door? If I am one of those guys, no way in hell I am stepping into that situation.

        And, lastly when you are defending a criminal case with a shaky fact set on your side and an unsympathetic defendant, your trial posture is very often not about winning there, but rather is about setting the table for winning on appeal. These rulings are gifts from the heavens in that regard for Hamdan. He gets a bunch of evidence bounced already AND he has beautiful grounds to argue that it all should have been bounced for his appeal.

        • emptywheel says:

          I need to look at it more closely, but I think the missiles in the trunk charge gets bounced without the Bagram evidence, not sure about the membership in AQ.

          But that was a matter of going too big with their charging decisions. I think you can charge Hamdan with an affiliation with AQ, but not ask for a life sentence. But they wanted to go further and as a result may well have problems proving their case.

          But I do think there are OTHER things in this that Hamdan’s lawyer can play with, aside from the interrogations.

      • PraedorAtrebates says:

        Sleep deprivation is not merely an “enhanced interrogation technique”. Extended sleep deprivation causes hallucination, hysteria, panic attacks, paranoia. Taken to the extreme, insomnia (by natural or artificial means) can cause coma and death.

        So, how to trust “confessions” provided by someone bordering on psychosis or suffering hallucinations as real?

        Perhaps the information obtained by drugging up a victim with LSD would be just as reliable and acceptable as Hamdan’s forced confessions.

        • emptywheel says:

          I don’t disagree in the least. All I was saying is that 1) there is a judgment that Operation Sandman did not result in sleep deprivation that Allred is relying on, either rightly or wrongly, 2) Operation Sandman happened AFTER the most important statement Hamdan gave 3) Allred was careful to note that Hamdan exhibited no signs of tiredness aduring that May 17 statement, suggesting that there’s no reason to believe he was sleep deprievd when he gave it.

          I’m suggesting Allred is trying to assess, very specifically as it relates to sleep deprivation, whether it affects Hamdan’s most important statement.

          • masaccio says:

            I think this is right. Judge makes reference to “(sealed) AE 286″ as support for his idea that Operation Sandman was not a coercive technique. I assume the defense can read that Exhibit, and deal with it either in the open or in a closed session, perhaps by bringing in some witnesses.

  15. Leen says:

    On the Diane Rehm show NOW
    10:00Guantanamo Prosecutions

    The first military trial of a terrorism suspect at Guantanamo began Monday and the judge threw out some evidence against Osama bin Laden’s former driver, Salim Hamdan, that had been collected through harsh interrogation techniques. Also Monday, Attorney General Michael Mukasey asked Congress to legislate how detainees may challenge their detentions in light of a recent Supreme Court ruling granting that right. A look at how a series of expected terrorism prosecutions are likely to proceed.
    http://wamu.org/programs/dr/

    1-800-433-8850

  16. brendanx says:

    “Coup de gras” would be translated as something like “fat smack”. It’s coup de grace. Sacre bleu.

  17. perris says:

    I am amazed there was ever a question, amazed this administration actually believes information gathered through torture means anything at all

    I guarantee, every single adminsitration member, under pain or even threat of torture will admit their own guilt in any crime they are charged

    they are depraved sociopaths

  18. JohnLopresti says:

    Some of the material Allred’s ruling yesterday referenced is in defense’s 85pp motion to suppress coerced ‘evidence’ filed April 4, 2008. Some of the private stuff ew mentioned seems to be in it.

  19. R.H. Green says:

    “He also withheld a ruling on a key interrogation at Guantanamo in May 2003 until defense lawyers can review roughly 600 pages of confinement records provided by the government on Sunday night”. 600 pages? The night before the trial? Perhaps these records were requested late, but doesn’t this (at least seem to) constitute prosecutorial misconduct?

    • emptywheel says:

      Yeah, and I think that’s why Allred is holding open the possibility of disallowing the Gitmo stuff–so Hamdan’s lawyers can read that stuff to see if they can prove inappropriate interrogation techniques in any proximity to that May 17 statement.

  20. FrankProbst says:

    You know, something just occurred to me. We’ve got Mukasey running aren’t saying these are really bad men, and the dirty fucking hippies want to release them into the US.

    So what happens if they’re tried, convicted, sentenced to less than a life sentence, and serve their time? What do we do with them then? Aren’t we right back where we started?

  21. R.H. Green says:

    FrankProbst @ 46
    I’ve been wondering if the prisoners are not to be released in the US, if they can be released in Guantanamo, to become the base’s homeless population. Or perhaps they could “emigrate” to Cuba, where they may be welcomed, as in “give me your tired, poor, wretched….

  22. R.H. Green says:

    Regarding my earlier comment @ 45, I noted that there may be mitigating factors here, but if this is a case of prosecutorial misconduct, I think such a finding also will turn out to be a serious monkey wrench in the showtrial machinery. It is one thing to have it revealed that some testimony is tainted by the conditions by which it is obtained, but it is yet another thing to have it revealed that, in addition to this, that the trial itself, shows evidentiary management which also attempts to stack the deck against the defendant.

  23. bmaz says:

    Here is my take on the coercion parsing being attempted by the court, and why I said what I did in the last paragraph @43. I think, to a very large extent, that Allred has placed this in the Groucho Marx posture; i.e “We’ve established what you are, now we’re just haggling about price”.

    Allred has identified that there was indeed torture and other conduct sufficiently abusive and coercive that it negates veracity and reliability of the statements, and, thus, admissibility. He has pretty much honed in on the fact that there was some very bad conduct in this regard very early on (read right after capture) with Hamdan (and by my bet that will be the case with most all of the detainees).

    My take is that once you have clearly and substantively tortured a subject, ALL coercive evidence obtained from him subsequent to that point, even if it is a lesser degree of coercion that might as a stand alone not be a disqualifier, is the product of torture and impermissible coercion. In later sessions, you may not have to coerce a subject as much to get him to say whatever you want him to say, he will do it because he doesn’t want to face the initial horror again. But you are still obtaining patently unreliable evidence, and it is still the product of the initial disqualifying torture. Allred is trying to split the baby here and not throw the whole baby out with the rancid bathwater; but the baby is a whole and can’t be split. And I guarantee you that this is what the psychological torture experts are going to confirm with expert testimony.

    And, again, who’s going to go on the record to lay the necessary foundation even if you buy the baby splitting paradigm. If I am one of those interrogators, I wouldn’t get within a mile of subjecting myself to cross-examination on this shit. Never.

    • masaccio says:

      You and I have always agreed about this. Once a guy says something under coercion, it is hard to credit a repeat of the same testimony later. I don’t have any confidence in the cooling-off period theory of cleaning up after violent coercion. Apparently Judge Allred disagrees with us.

      • bmaz says:

        a repeat of the same statement or any other statement for that matter, the same cognitive factors lead the subject to utter the statements, and it is still based upon the horror of the initial heinous acts; the same result of suppression ought to result.

        Discussion of Miranda in these situations is lame; even I don’t buy that it is applicable, and i am the king of liberal ass whiny defense arguments.

  24. emptywheel says:

    Incidentally, if you’re Lindh’s lawyer right about now, you want a second bite at the apple. Lindh had FAR WORSE treatment after detention than Hamdan. Same kind of guy, too–joined up to fight the NA, not the US. But he’s in jail for 20 years.

    • bmaz says:

      Lindh is a real problem. Always has been. I very much fault the judge, Ellis, and McNulty too. The plea was unconscionable, nearly to the point of being unethical. It is a travesty that should be corrected.

  25. timbo says:

    Interesting news. And long waited for. But, yep, the question of when testimony and confession is permissible, after a defendent0 has been tortured into making a confession, is a sticky issue.

    The sad, disheartening part of this line of legal reasoning is that you cannot permit someone to go scott-free simply because they have been tortured in the past. To do so would be a license to claim to have been tortured so as to avoid culpability.

    Just another reason why I hate Busholini and his ilk for making us go through the affective and legal turmoil of their stupid, sociopathic need to torture people. It isn’t pretty. And, frankly, it makes me hate them even more…I sure hope it doesn’t make them smirk…because, if it does, I’d want to see them clocked up in Bagram for a time commiserate with their own culpability for the legal travesty that they’ve visited on the United States.

    Yeah, I didn’t like the fear that 9-11 brought to our shores…but I think that to have let the logic behind it, that terrorizing your enemies somehow solves a problem, especially one as complex as the rise of religious fundamentalism, either here or in the Middle East, eh, is so stupid as to defy rational explanation entirely. Bush-lite and Gauleiter Cheney are just that…light on intellect and strong on being brutal. May they be impeached…and if not, may history impeach ourselves.

  26. earlofhuntingdon says:

    If the Bush junta can’t use its tortured evidence, it may end up trying to destroy it, and the legal liability trail that leads back to them for having tortured its prisoners.

    Among the many ironies is that most of these prisoners were kept, if for any reason at all, in order “to sweat them” for what they knew, when everyone who knew torture knew it generated unreliable data.

    Listening to pundits and Villagers bemoan the injustice and perversion of investigating the Bush regime’s excesses is like listening to the Catholic Church explain how damaging it would be to it, if it were forced to disclose the sexual predation of its priests and how its leadership put them in charge of flock after flock of sheep.

    If democracy is that frail, then that’s not really what we’ve built our government on.