Yemeni citizen Salim Hamden faces the first military commission since World War II.
The prosecution has charged the 37-year-old father of two with conspiracy and providing material support for terrorism and touts him as a specialised bodyguard for bin Laden and an active participant in terrorist planning. The defence insists he was a simple low-level employee, who did not take part in any terrorist plots with al-Qaeda or courier weapons for the terrorist group.
The judge, Navy Captain Keith Allred, threw out testimony obtained by interrogators while Hamdan was being held in Bagram airbase in Afghanistan just after his capture in 2001. The record showed that Hamdan’s hands and feet were restrained 24 hours a day, he was kept in constant isolation and a soldier threw a knee into his back and demanded him to speak. The judge found these tactics to be “highly coercive” and refused to allow the testimony. The use of testimony received from torture is clearly banned by international law and most domestic laws prevent the use of evidence obtained from cruel, inhuman or degrading practices as well.
While this may have been a small victory, the judge did rule that Hamdan was not entitled to the protection against self-incrimination under the 5th Amendment of the US Constitution. Therefore, potentially incriminating testimony obtained while he has been held at Guantanamo Bay is admissible. See Hamdan not entitled to Fifth Amendment protections: military judge, for a summary of the judge’s comments.
Denying evidence that was obtained in Afghanistan because of the coercive interrogation tactics used to acquire it, while simultaneously allowing evidence that was obtained during Hamdan’s incarceration in Guantanamo Bay, seems to be a contradiction. At a hearing last week, Hamdan testified that coercive tactics have been used against him during interrogations at Guantanamo Bay as well. Hamdan stated that he had been repeatedly held in isolation, deprived of sleep and sexually coerced by a female interrogator during a 2002 interview. See Detainee speaks out on interrogation tactics.
If the interrogation tactics used on Salim Hamdan were deemed “coercive” during his incarceration in Afghanistan, shouldn’t those same tactics used at a US Naval Base also be “coercive”? Shouldn't all evidence obtained using "coercive" measure be thrown out?
Judge Allred’s decision to exclude coerced testimony could stil prove to be a watershed decision. Many other Guantanamo detainees face their own military commissions in the near future, and scores of them have faced worse treatment than Hamdan. For example, Khalid Sheikh Mohammed, the self described mastermind of the 11 September World Trade Center attacks, is one of several detainees whom the US Government has admitted to subjecting to waterboarding, and numerous other detainees have alleged torturous treatment during their incarceration by the US Government. This decision could set a precedent for judges presiding over military commissions to prevent the use of incriminating testimony that was obtained using these inhuman and degrading practices.
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