That's the question Mohammad Jawad's defense attorneys are trying to answer with a motion filed Wednesday afternoon in the Guantanamo detainee's habeas petition, charting a course into some new legal territory and arguing that statements made to U.S. and Afghan interrogators should be rendered inadmissible in U.S. courts, given the conditions that yielded them.
Now that detainees can challenge their detentions in federal U.S. courts, a result of the Supreme Court's 2008 Boumediene v. Bush decision, and now that President Obama has signaled he wants to move some Guantanamo detainees into the U.S. court system, it's a question that will likely arise again.
Jawad is one of 229 detainees still at Guantanamo, and, though his age has been disputed, his attorneys estimate he was between the ages of 13 and 16 at the time of his arrest in Afghanistan in 2002. It's been suggested he was as young as 12. Nude photographs taken of Jawad in custody show an adolescent in his early teens, his attorneys say.
According to the Justice Deptartment, which cites two eye witnesses in the Afghan military, Jawad threw a grenade into a U.S. vehicle. It exploded in the passenger seat, seriously injuring two U.S. soldiers and an Afghan interpreter. He did so at the behest of an anti-U.S. faction in Afghanistan, after receiving Taliban weapons training, the government alleges.
After that, according to a court document filed by his attorneys this afternoon, he was consistently coerced and abused by interrogators immediately following his arrest, then later at Bagram Air Base, and again at Guantanamo, where he is being held now. That treatment included being thrown down stairs, death threats, prolonged isolation, and sleep deprivation, according to the document, which includes references to testimony from an Army Criminal Investigation Division agent, Katharine Doxakis, who conducted an investigation at Bagram.
In 2003, he attempted suicide. According to his attorneys, interrogators subsequently ramped up pressure tactics, seeking advantage in his weakened state.
The Afghan attorney general's office has called for Jawad's repatriation, as reported earlier this month by AFP. Jawad's former military prosecutor, Lt. Col. Darrel Vandeveld, resigned in September 2008 and filed a declaration of support for Jawad's habeas petition, stating there is no credible reason for his continued detention.
Jawad's statements to interrogators included a written confession in Farsi, according to his attorneys, obtained by interrogators soon after his arrest in Afghanistan--though he is both illiterate and a native speaker of Pashto, not Farsi, document says. Jawad's statements following his arrest were excluded from court by a military tribunal.
The military court's exclusion should apply not only to those statements, Jawad's lawyers argued today, but to all statements made to Afghan and U.S. officials while in custody. If not, the attorneys argued, the evidence they presented of Jawad's treatment should lead the judge to the same conclusion reached by the military judge on the first statements, and all Jawad's confessions should be thrown out.
"This is the first case to squarely address and exclude testimony based on coercion and torture," said ACLU attorney Jonathan Hafetz, one of the lawyers representing Jawad. The issue has come up in some rulings, but, as an issue, it's been "tangential" to other detainee cases thusfar, Hafetz said.
The hope is that Jawad's case will set a precedent that no statements obtained under enhanced interrogation will be admissible in federal court.
"Our view is that no evidence gained through torture or coercion can be used in a federal court," Hafetz said. "We hope the court will make clear that coerced evidence has no place in a country that's dedicated to the rule of law."
But, as detainee cases flow into federal courts after the 2008 Boumediene ruling, domestic courts are encountering post-9/11 "enemy combatant" detainees, and the conditions of enhanced military/CIA interrogations, for the first time.
The Fifth Amendment entitles U.S. citizens to the right not to incriminate themselves. Subsequently, that's been interpreted to mean that if a statement is not given voluntarily, it will be excluded by a judge. It's a right that is well established domestically, and has been applied in U.S. court to non-U.S. citizens before. There's also the thought, unrelated to civil rights, that coerced statements are unreliable and should be discarded for that reason.
Jawad's attorneys hold that, in every place where Jawad was held--immediately after his arrest in Kabul, later at Bagram, and then finally at Guantanamo--he was tortured and coerced, and thus all statements made to interrogators should be rendered inadmissible by the court.
Presumably, potential counter-arguments could be either that some or all of the military's harsh interrogation techniques are not coercive, that such statements are just as reliable as non-coerced ones, or that rights against self-incrimination and coerced statements don't extend to non-U.S. citizen "enemy combatants" in war zones.
According to U.S. court precedent, now that Jawad's lawyers have questioned the his confessions as coerced, the burden now shifts to the Department of Justice to show that they weren't. The court will hear arguments about the statements at a hearing scheduled for August 5-6, according to Hafetz.
Judge Ellen S. Huvelle is likely to rule on the motion after that.