The first Guantanamo trials under US President Barack Obama have drawn sharp criticism after disputed evidence was allowed in one and a secret plea-deal was reached in another.
“The government met its burden. The defense motion for suppression is denied,” military judge Patrick Parrish ruled last Monday, allowing confessions made under duress by Canadian Omar Khadr, captured in Afghanistan when he was 15.
Charged with throwing a grenade that killed a US sergeant during a 2002 attack in Afghanistan, Khadr was interrogated by a military official who told Parrish that he had threatened the teenager with rape and murder to make him talk.
Parrish’s “decision does nothing to help the credibly of the [military] commissions,” Loyola University Los Angeles law professor David Glazier said.
“Decisions which err on the side of allowing disputed evidence into the trials will only serve to fuel that criticism and undermine public confidence in trial verdicts,” he said.
‘POISONOUS TREE’
“The suppression that the lawyers are arguing are what we call the fruit of the poisonous tree,” said law professor Gary Solis, who is covering the Guantanamo trials for the National Institute of Military Justice.
“In my view ... you cannot separate subsequent statements from the first statement no matter how clean the secondary questioners may be,” he said, referring to subsequent statements Khadr made free of harassment.
“The commissions are likely to face intense scrutiny and criticism at each step along the way,” said Matthew Waxman, a former deputy defense secretary under former US president George W. Bush.
“Because many opponents have long associated military commissions with abusive interrogation techniques, rulings like this are especially likely to attract criticism,” he added.
The military commissions were created by Bush.
Khadr’s trial was postponed for 30 days so his lawyer can seek medical treatment in the US, after he collapsed at the end of court proceedings on Thursday.
In the case against Osama bin Laden’s cook, Ibrahim Ahmed Mahmoud al-Qosi, presiding military judge Nancy Paul announced last Monday that the terms of a pre-trial plea deal with prosecutors would remain secret.
SECRET PLEA DEAL
A 10-member jury deliberated for just over an hour before handing down a 14-year prison sentence on Wednesday against the 51-year-old al-Qosi, who pled guilty last month to material support to terrorism.
The secret plea deal opens the possibility that he could serve a much shorter sentence, or be repatriated to Sudan.
“The secret pretrial agreement ... is shocking. We are supposed to have open trials and open dockets, and the [US] administration has said it is committed to transparency. This is the polar opposite,” Yale University military law professor Eugen Fidell said. “I hope the ruling on secrecy will be appealed to a higher court.”
Human Rights Watch official Andrea Prasow concurred.
“The fact that the actual plea agreement is secret calls into question how open and transparent these proceedings are,” she told reporters in Guantanamo.
In another court anomaly in the al-Qosi case, Paul was noticeably irritated when she discovered there were no written instructions on his conditions of imprisonment.
The plea agreement reportedly stipulates that al-Qosi can serve out his eventual sentence in Guantanamo’s Camp 4, where inmates live communally, but prison rules require convicted detainees to be isolated from other prisoners.
The proceedings were suspended for a day, after which the judge called the discrepancy “troubling,” and pointed out that the Pentagon official responsible for overseeing the trials was supposed to coordinate the conditions of a plea deal with prison authorities.
She gave everybody involved in the case 60 days to come up with a solution.
“It’s a new system and it’s bound to have teething problem at the beginning,” Solis said.
Despite undergoing reforms since Obama came to power in 2001, the Guantanamo military commissions are still the center of controversy.
“It is widely believed that the government is using Khadr as a test case to judge the feasibility of trying ‘high value’” suspects in the Sept. 11, 2001 terrorist attacks on the US, Glazier said.
“If it finds that the commissions will admit evidence more freely than a federal judge would, and the public backlash is not too strong, it will likely lead to more commission trials,” he said.
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