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Univ. of South Carolina School of Law

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Tuesday, July 22, 2008

When You Ride Alone, You Ride With Bin Laden: Judge Bars Some Interrogation Evidence In Trial Of bin Laden's Driver

The first American war crimes trial since World War II has already produced an interesting ruling.  The trial of Salim Hamdan, the former driver for Osama bin Laden, who has been accused of conspiracy and supporting terrorism, began yesterday at Guantanamo Bay, Cuba.  Hamdan met bin Laden in 1996 and began working on his farm before being promoted to a position as his driver.  Defense attorneys claim that Hamdan thereafter only kept the position because of its high salary, but prosecutors allege that Hamdan transported weapons for the Taliban and helped bin Laden escape U.S. retribution following the September 11th attacks.  Yesterday, his trial began before a jury of six officers, whom were selected from a pool of 13 flown in from other U.S. bases over the weekend.

Hamdan's trial is expected to serve as a litmus test of sorts for the justice or injustice that will be meted out by the oft-criticized military tribunal system, and if we're sticking with the litmus test metaphor, the results were not red on the first day.  Instead, Judge Keith Allred, a Navy Captain, ruled that the prosecution cannot use a series of interrogations of Hamdan conducted at the Bagram air base and in Panshir, Afghanistan, because of the "highly coercive environments and conditions under which they were made."  Specifically, Judge Allred found that at Bagram, Hamdan was kept in isolation 24 hours a day with his hands and feet restrained, with armed soldiers prompting him to talk by kneeing him in the back.  Meanwhile, he found that at Panshir, Hamdan's captors repeatedly tied him up, put a bag over his head and knocked him to the ground.  Judge Allred also indicated that he would throw out statements whenever a government witness is unavailable to vouch for the questioners' tactics.  Prosecutors are currently considering whether to appeal Allred's ruling, with the tribunals' chief prosecutor, Army Col Lawreence Morris, stating, "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."

The defense, however, was less successful in another regard, with Allred rejecting allegations of a coercive culture at Guantanamo, despite Hamdan's claim that interrogators were gatekeepers for medical treatment.  Allred instead found that the apparent link between medical care and Hamdan's cooperation with interrogators was "the natural consequence of agents seeking to help detainees in order to build rapport."  This ruling thus leaves the door open, at least for the moment, for the prosecution to use statements Hamdan made at Guantanamo, despite defense claims that all his statements were tainted by alleged abuse including sleep deprivation and solitary confinement.

Here at Evidenceprof, I've refrained from commenting much on these military tribunals because their legitimacy seems more a matter of Constitutional law than evidence law, and what they are doing doesn't really resemble the rules of evidence.  Nonetheless, I will likely provide some commentary here and there as interesting development arise throughout these trials.

-CM

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