Dispatches from the Creation Wars

Ackerman at Gitmo

My colleague Spencer Ackerman is spending the week at — not in — Guantanamo Bay, observing the start of a military tribunal for Omar Khadr, a Canadian citizen accused of attacking American troops in Afghanistan. One purpose of his trip is to determine whether the Obama-era tribunals are any different from Bush-era tribunals, as Obama has pledged they would be.

And the key issue, he writes, is whether the tribunals accept coerced evidence or evidence offered after torture or abuse of a detainee:

Khadr’s attorneys charge that the teenaged detainee underwent over 40 interrogations in 2002 at Bagram Air Field in Afghanistan after being shot and suffering shrapnel wounds in a battle with U.S. forces in July 2002 in the eastern Afghan province of Khost. During those interrogations, Khadr was given limited pain medication; had his head hooded while “interrogators brought barking dogs into the interrogation room”; was placed in stress positions despite his gunshot and shrapnel wounds; and was threatened with rape. After 90 days, U.S. military officials flew him to Guantanamo Bay, where he was again placed in stress positions; had his hair torn out; threatened again with rape; and was even used as “a human mop” by military police after he urinated on the floor of his interrogation room after being placed in stress positions for a prolonged period of time.

Information that emerged from those interrogation sessions — basically, what Khadr told his interrogators while being tortured — comprises a substantial portion of the prosecution’s case against him. It isn’t clear how much of the government’s case against Khadr relies on what he told his interrogators after his abusive treatment. The government will call witnesses who will attest to seeing Khadr throw the grenade that killed Sgt. First Class Christopher J. Speer. (At least one, Sgt. Layne Morris, has come forward in the press.) And the government will probably also seek to introduce statements Khadr made that it maintains were not the result of torture. But Khadr’s lawyers contended in their November 2008 motion that “all statements made by Mr. Khadr subsequent to any statement he made in response to coercive interrogation must also be suppressed as fruit of the poisoned tree,” a legal concept holding that the taint of improperly acquired evidence extends to any secondary evidence it produced.

It’s a crucial question for the military commissions. Every detainee who tried before the commissions encountered periods where they were harshly interrogated but then later faced less-coercive interviews, “so this is a real test case for the viability of other prosecutions,” said David Frakt, a lieutenant colonel in the Air Force Reserve judge-advocate general corps who used to be defense counsel for Mohammed Jawad, another juvenile held at Guantanamo Bay. For instance, if Khalid Shaikh Mohammed and the other 9/11 conspirators who were initially held in undisclosed CIA prisons are brought back to military commissions, Khadr’s hearing may determine whether everything they have told their interrogators — even long after being abused — is inadmissible before the commissions. To Jennifer Turner, a human-rights researcher with the ACLU who will travel to Guantanamo Bay to observe the Khadr hearing, if the judge rules that Khadr’s statements to his interrogators can be used against him, “it will show the military commissions under Obama are no different than those under Bush.”

Indeed, it is because of Obama that the issue has remained unsettled. Upon taking office in January 2009, Obama issued executive orders banning enhanced interrogation; vowing to close Guantanamo Bay within a year; and suspending the military commissions while his administration decided how it would deal with the approximately 240 Guantanamo detainees it inherited from the Bush administration. That suspension, coupled with Senator Obama’s objections to the commissions on constitutional grounds, raised hopes among civil libertarians that the administration would ultimately scrap its predecessors’ ad hoc approach to terrorism prosecutions.

Instead, in a May 2009 speech, Obama pledged to reform the commissions, not abandon them. Among the reforms he promised was to “no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods.” By October, Congress passed and Obama signed the Military Commissions Act of 2009. Section 948(r) indeed enshrines the ban on statements made owing to those methods. But it gives judges leeway to enter into evidence “other statements of the accused… only if the military judge finds” that they are indeed voluntary.

But this statement from one of the courageous former JAG officers — indeed, from the former chief prosecutor at the Bush-era tribunals, who resigned in protest of the lack of due process at those proceedings — gets to the real heart of the matter:

Davis, the former chief military commissions prosecutor, holds little sympathy for Khadr, whom the government says a videotape shows emplanting improvised explosive devices in Afghanistan. (The video does not implicate him in the death of Sgt. Speer.) But he said his problem was with the Obama’s claim that it needs to keep the options of both federal courts and military commissions to handle terrorism prosecutions, a claim that struck him as both politically motivated and unjust.

“It’s too bad that the Obama administration is back on its heels in a defensive crouch, afraid to go toe-to-toe with the Cheney right-wing fanatics, and continues to try to have it both ways with the option of military commissions and trials in federal courts still in play,” Davis said. “Hopefully, at some point they’ll grow a pair and make a choice, but this double standard where we’ll give a detainee as much justice as we can and still ensure we get a conviction shows how hypocritical we are when it comes to the rule of law. We talk the talk, but we don’t walk the walk.”