Court Rejects Evidence from Questionable Interrogations

Judges reject evidence in Gitmo cases

Rulings cite improper interrogations.

Chisun Lee

August 16, 2010

Editor’s Note: Most weeks, news articles in The National Law Journal are written and reported by our staff writers. In this issue, however, we’re devoting significant space to a story authored by a reporter from a new contributor: ProPublica, the Pulitzer Prize-winning nonprofit news organization that produces investigative journalism in the public interest. It’s the first time the NLJ has partnered with ProPublica, but we’re in good company: The New York Times, Wall Street Journal, Washington Post and several others have featured the high-quality journalism produced by the ProPublica team. For more information about ProPublica or to read other investigative articles produced by its reporters, please visit www.propublica.org.

The government’s case for keeping the Guantánamo Bay prisoner locked away seemed airtight. He had confessed to overseeing the distribution of supplies to al-Queda fighters battling U.S. forces in Afghanistan, even describing the routes where pack mules hauled the packages.

But a federal judge rejected Fouad Mahmoud Al Rabiah’s confessions, concluding that he had concocted them under intense coercion. Even statements that the government insisted Al Rabiah had Wmade under noncoercive, or “clean,” questioning were tainted, U.S. District Judge Colleen Kollar-Kotelly ruled, and she ordered that Al Rabiah be released.

The government has lost eight of 15 cases in which Guantánamo inmates have said they or witnesses against them were forcibly interrogated, according to ProPublica’s review of 31 published decisions that resolve lawsuits filed by 52 captives who said they’ve been wrongfully detained. Because some of the judges’ opinions are heavily redacted, it’s impossible to be sure there aren’t more cases in which the government offered interrogation evidence collected under questionable circumstances. More than 50 such lawsuits are still pending, two years after the U.S. Supreme Court gave Guantánamo inmates the green light to challenge their detention in the U.S. District Court for the District of Columbia.

There are a number of worthwhile points here (as I see it):

  1. The judge held that even the “clean” interrogations produced tainted evidence.
  2. The government has, as nearly as can be known given the cases that have parts of the decisions redacted, lost 8 of 15 cases that alleged the accused or a witness had been improperly interrogated.
  3. There appear to be only 31 published decisions resolving lawsuits filed by 52 people who say they have been wrongfully held.  Does that seem to be a ridiculously low number considering how long it has been since the commissions were established?  I know civilian courts move glacially sometimes but when the key players are in the military I would expect a number of courts could be established and operate simultaneously producing a much higher number of cases handled.
  4. You should consider reading more from ProPublica.

Officer Rejected, by a Justice Department Prosecutor, for Gitmo Panel Because He Agrees With Obama

Does this demonstrate prosecutorial independence or insubordinate behavior?

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Officer Rejected for Gitmo Panel Because He Agrees With Obama

Officer Rejected for Gitmo Panel Because He Agrees With Obama
<By Jess Bravin>
Guantanamo Bay continues to produce interesting twists in U.S. policy. The latest came this week when prosecutors disqualified a potential military commission member because he agreed with the Obama administration’s view of the offshore military base.
President Barack Obama pledged as one of his first acts in office to close the Guantanamo prison within a year. More than a year and a half later, it remains open, amid Republican-led opposition to closing the prison, and trials of terrorist suspects are moving ahead under the Obama administration.
This week, a jury-like panel was assembled to hear the case of Omar Khadr, a Toronto-born detainee who was captured in Afghanistan at age 15 and accused of throwing a grenade that killed an American soldier.
During examination, an Army lieutenant colonel who was being considered for the panel said he agreed with Obama’s view that the offshore prison has compromised American values and diminished America’s international standing.
“America seemed to lose its status as a beacon of freedom, liberty and justice” through its interrogation methods, secret prisons and extraordinary renditions, said the lieutenant colonel, who couldn’t be named under courtroom rules. “I don’t believe my position is any different from the president’s.”
The military judge, Col. Pat Parrish, refused to dismiss the officer, so prosecutor Jeff Groharing, a Justice Department attorney who started as the Khadr prosecutor in 2005 when he was a Marine major, used his single peremptory challenge to remove him from the commission.
“He said repeatedly he agrees with the president,” Groharing said.
Defenders of Guantanamo say detainees are treated fairly and the U.S. doesn’t need to scrap a facility it has spent millions to build. They also say U.S. communities could be at risk if terrorism suspects are moved to the U.S.
Groharing also sought to disqualify a Navy captain who said he believed detainees had been mistreated at Guantanamo in its early years, but the military judge declined to do so.
The Khadr case has been a continuing frustration for the U.S. government, which initiated proceedings in 2005 only to encounter repeated legal and administrative obstacles.
Obama administration officials said earlier this year they were seeking to arrange a plea bargain that would repatriate the defendant to serve a sentence, but the Khadr family is widely unpopular in Canada and Ottawa has proven unwilling to help Washington resolve the case.
Canadian courts, however, have been critical of their government’s actions in the case, repeatedly finding that Ottawa had failed to protect Mr. Khadr’s rights.

Guantanamo Bay continues to produce interesting twists in U.S. policy. The latest came this week when prosecutors disqualified a potential military commission member because he agreed with the Obama administration’s view of the offshore military base.

President Barack Obama pledged as one of his first acts in office to close the Guantanamo prison within a year. More than a year and a half later, it remains open, amid Republican-led opposition to closing the prison, and trials of terrorist suspects are moving ahead under the Obama administration.

This week, a jury-like panel was assembled to hear the case of Omar Khadr, a Toronto-born detainee who was captured in Afghanistan at age 15 and accused of throwing a grenade that killed an American soldier.

During examination, an Army lieutenant colonel who was being considered for the panel said he agreed with Obama’s view that the offshore prison has compromised American values and diminished America’s international standing.

“America seemed to lose its status as a beacon of freedom, liberty and justice” through its interrogation methods, secret prisons and extraordinary renditions, said the lieutenant colonel, who couldn’t be named under courtroom rules. “I don’t believe my position is any different from the president’s.”

The military judge, Col. Pat Parrish, refused to dismiss the officer, so prosecutor Jeff Groharing, a Justice Department attorney who started as the Khadr prosecutor in 2005 when he was a Marine major, used his single peremptory challenge to remove him from the commission.

“He said repeatedly he agrees with the president,” Groharing said.

Defenders of Guantanamo say detainees are treated fairly and the U.S. doesn’t need to scrap a facility it has spent millions to build. They also say U.S. communities could be at risk if terrorism suspects are moved to the U.S.

Groharing also sought to disqualify a Navy captain who said he believed detainees had been mistreated at Guantanamo in its early years, but the military judge declined to do so.

The Khadr case has been a continuing frustration for the U.S. government, which initiated proceedings in 2005 only to encounter repeated legal and administrative obstacles.

Obama administration officials said earlier this year they were seeking to arrange a plea bargain that would repatriate the defendant to serve a sentence, but the Khadr family is widely unpopular in Canada and Ottawa has proven unwilling to help Washington resolve the case.

Canadian courts, however, have been critical of their government’s actions in the case, repeatedly finding that Ottawa had failed to protect Mr. Khadr’s rights.

Read related article: Gitmo Trial Revisits Days Following Capture

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Officer Rejected for Gitmo Panel Because He Agrees With ObamaGuantanamo Bay continues to produce interesting twists in U.S. policy. The latest came this week when prosecutors disqualified a potential military commission member because he agreed with the Obama administration’s view of the offshore military base.President Barack Obama pledged as one of his first acts in office to close the Guantanamo prison within a year. More than a year and a half later, it remains open, amid Republican-led opposition to closing the prison, and trials of terrorist suspects are moving ahead under the Obama administration.This week, a jury-like panel was assembled to hear the case of Omar Khadr, a Toronto-born detainee who was captured in Afghanistan at age 15 and accused of throwing a grenade that killed an American soldier.During examination, an Army lieutenant colonel who was being considered for the panel said he agreed with Obama’s view that the offshore prison has compromised American values and diminished America’s international standing.“America seemed to lose its status as a beacon of freedom, liberty and justice” through its interrogation methods, secret prisons and extraordinary renditions, said the lieutenant colonel, who couldn’t be named under courtroom rules. “I don’t believe my position is any different from the president’s.”The military judge, Col. Pat Parrish, refused to dismiss the officer, so prosecutor Jeff Groharing, a Justice Department attorney who started as the Khadr prosecutor in 2005 when he was a Marine major, used his single peremptory challenge to remove him from the commission.“He said repeatedly he agrees with the president,” Groharing said.Defenders of Guantanamo say detainees are treated fairly and the U.S. doesn’t need to scrap a facility it has spent millions to build. They also say U.S. communities could be at risk if terrorism suspects are moved to the U.S.Groharing also sought to disqualify a Navy captain who said he believed detainees had been mistreated at Guantanamo in its early years, but the military judge declined to do so.The Khadr case has been a continuing frustration for the U.S. government, which initiated proceedings in 2005 only to encounter repeated legal and administrative obstacles.Obama administration officials said earlier this year they were seeking to arrange a plea bargain that would repatriate the defendant to serve a sentence, but the Khadr family is widely unpopular in Canada and Ottawa has proven unwilling to help Washington resolve the case.Canadian courts, however, have been critical of their government’s actions in the case, repeatedly finding that Ottawa had failed to protect Mr. Khadr’s rights.