Gitmo war crimes judge penalizes prosecutors

updated 6:58 p.m. ET July 29, 2008

GUANTANAMO BAY NAVAL BASE, Cuba - A military judge penalized U.S. prosecutors Tuesday by blocking their use of a May 2003 interrogation as they finished presenting evidence in the first Guantanamo war crimes trial.

Judge Keith Allred, a Navy captain, said the government could not use the statements made by Salim Hamdan in the interrogation at Guantanamo as a penalty for not providing his defense team with potentially important documents until after the trial had started.

Allred said he would reconsider the ruling Wednesday, when the defense is scheduled to begin presenting its evidence in the first U.S. war crimes trial since World War II.

But the judge said he would only allow prosecutors to submit the interrogation if they can provide "clear and convincing evidence" the statements were not obtained through coercion.

Judge already ruled against prosecutors
The judge already ruled that prosecutors cannot use statements from a series of interrogations of Hamdan at the Bagram air base and Panshir, Afghanistan. The judge determined they were made under coercive conditions. He said he would use a higher standard to evaluate the May 2003 interrogation to penalize the prosecution for breaking the court-imposed deadline.

The deputy chief defense counsel for the war crimes tribunals, Michael Berrigan, said the ruling was a welcome response to government's "inexcusable" delay in providing the defense with records that provide new details about Hamdan's more than six years of confinement at Guantanamo.

"It's gratifying to get this ruling, but it doesn't go far enough," Berrigan said.

Defense lawyers have been sifting through the prison records for material to support Hamdan's allegations that he was subjected to abuse including sexual humiliation, sleep deprivation and solitary confinement. Such evidence could buttress their claims that he was coerced into making incriminating statements to authorities.

The May 2003 interrogation was conducted at this U.S. Navy base by two al-Qaida specialists, Ali Soufan of the FBI and Robert McFadden of the Naval Criminal Investigative Service, and has been described in court as the most complete summary of evidence against Hamdan.

Captured at a roadblock
Hamdan was captured at a roadblock in Afghanistan in November 2001. At Bagram in Afghanistan, the judge found Hamdan was kept in isolation 24 hours a day with his hands and feet restrained, and armed soldiers prompted him to talk by kneeing him in the back. His captors repeatedly tied him up, put a bag over his head and knocked him the ground.

The former driver for Osama bin Laden is charged with conspiracy and aiding terrorism. Authorities say Hamdan delivered weapons for al-Qaida and helped the terrorist leader evade U.S. retribution for the Sept. 11 attacks. His lawyers say he was just a minor employee with no role in terrorism.

The jury of six military officers could begin deliberations by the weekend.

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