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Obama Still Hasn’t Stated Position on Evidence Acquired Through Torture

Following up on my post earlier today that the Justice Department has decided not to oppose the American Civil Liberties Union’s motion to suppress tortured and coerced testimony in the habeas corpus case of Mohammed Jawad, it’s worth noting that the Obama administration still hasn’t said what it’s official position is regarding the use of coerced testimony in cases of Guantanamo Bay prisoners.

Jawad’s case is particularly compelling given that he was arrested by Afghan authorites for allegedly throwing a hand grenade when he was as young as 12 years old, according to the Afghan government. His lawyers say the primary evidence against him was his “confession” to Afghan police after they threatened to kill him and his family if he didn’t say he committed the crime. His “confession” again hours later to U.S. authorities who were similarly trying to intimidate was determined by a U.S. military judge to have also been coerced, unreliable and inadmissible in his military commission case.

The Obama administration, however, in Jawad’s habeas case introduced that same tortured evidence to argue the government had a right to keep him imprisoned. It was only yesterday when, for the first, time, the government indicated a shift in position, by filing a document with the district court hearing the case saying it would not oppose the arguments of Jawad’s ACLU lawyers that the evidence should not be used against their client.

ACLU lawyer Jonathan Hafetz says he had no prior indication that the government would be changing its view in this case, and although he thinks it’s a hopeful sign, it’s not completely clear what it means.

“To me the question is, does this reflect a changed position on the use of coerced evidence generally, as we hope, or just another example of the government dropping a dubious position to avoid embarrassment and an adverse decision by a court?” Hafetz said.

All indications are that the judge in the case, Ellen Huvelle, would likely not allow the introduction of evidence acquired through torture. And an Office of Legal Counsel memo, which the ACLU requested from the government via a FOIA lawsuit yesterday, reportedly says that such Guantanamo detainees would have the right to object to use of such coerced evidence at their military commission trials.

And as Jess Bravin at The Wall Street Journal reported, military prosecutors “have said involuntary statements comprise the lion’s share of their evidence against dozens of Guantanamo prisoners who could be tried.”

So was the Justice Department’s decision not to press for using the coerced confessions in Jawad’s case just a strategic move, or does it signify a real change in policy on the part of the Obama administration?

That remains to be seen. In the meantime, the government will soon have to report to the court whether it has any convincing legally admissible evidence that supports continuing to hold Jawad, or whether it will have to let him go.

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