GUANTANAMO BAY, Cuba - In a first, a military judge ruled yesterday that a Guantánamo detainee's confession was extracted through torture, and excluded it from the trial of a young Afghan detainee at the war court.
Afghan police threatened the family of teenager Mohammed Jawad while he was undergoing interrogation at a Kabul police station, said army colonel Stephen Henley, the judge, in a three-page ruling.
Jawad, now facing trial by military commission, is accused of throwing a grenade inside an Afghan bazaar in December 2002, which wounded two US soldiers and their Afghan interpreter. None was killed.
Henley found in the ruling that there was reason to believe Jawad was under the influence of drugs at the time of his capture and forced confession.
He also accepted the accused's account of how he was threatened, while armed senior Afghan officials allied with US forces watched his interrogation.
"You will be killed if you do not confess to the grenade attack," the detainee quoted an interrogator as saying. "We will arrest your family and kill them if you do not confess."
Jawad confessed, was turned over to US forces and was transferred to Guantánamo two months later.
The judge said he was accepting Jawad's account of what happened to him because the government had been unable to provide timely disclosure of evidence for the coming war crimes trial, scheduled for January 5. A Jawad case prosecutor recently quit the war court to protest over his inability to provide potentially exculpatory evidence.
Yesterday's ruling was the first at the war court to exclude a confession on grounds of torture using the international standard, noted attorney Jamil Dakwar, a military commissions observer with the American Civil Liberties Union.
In doing so, Dakwar said, the military judge was rejecting a legal opinion by Bush administration lawyers that early on sought to soften the definition of torture by sanctioning threats to family members.
"'Torture' includes statements obtained by use of death threats to the speaker or his family," wrote Henley, the military judge. "The actual infliction of physical or mental injury is not required."
Said major David JR Frakt, Jawad's defense attorney, who is seeking dismissal of the case and his client's return to his family: "He the judge is adopting a traditional legal definition of torture, rather than making one up."
Another judge excluded some statements from the summertime trial of Osama bin Laden's driver, Salim Hamdan. In that ruling a Navy judge found that Hamdan was subjected to a potentially coercive environment in Bagram, Afghanistan, but did not define it as torture.