Kevin Lanigan [Law and Security Program Director, Human Rights First]: "Last week I observed three military commissions hearings in Guantánamo: the arraignments of Afghani national Mohammed Jawad and Saudi national Ahmed Mohammed Ahmed Haza al Darbi, and a discovery motions hearing in the case of Canadian national Omar Ahmed Khadr. (Khadr's case, along with that of Salim Ahmed Hamdan, are the two cases now closest to trial.)

It is well known that the "high value" detainees were subject to cruel treatment in secret CIA detention facilities prior to their September 2006 transfer to Guantánamo. It is less well known, however, that at least scores of other Guantánamo detainees also allege they were subjected to torture and abusive interrogations — including Jawad, al Darbi and Khadr. Human Rights First has documented these allegations, several confirmed by current or former U.S. government sources, in our March 10 report, Tortured Justice: Using Coerced Evidence to Prosecute Terrorist Suspects [JURIST report].

The Military Commissions Act (MCA), 10 U.S.C. sec. 948a, et seq., ostensibly bans the introduction of statements obtained through torture. The Bush administration, of course, insists that neither waterboarding nor any other technique to which it has subjected detainees amount to torture. For statements obtained by coercive treatment falling short of "torture" — none of which would be admissible in any other U.S. state or federal criminal proceeding, including a military court-martial — the MCA is much more tolerant. Where "the degree of coercion is disputed" the statement still may be admitted if the military commissions judge finds that:

(1) the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and

(2) the interests of justice would best be served by admission of the statement into evidence.

In addition, as for any statement obtained on or after December 30, 2005, "the interrogation methods used to obtain the statement" also must "not amount to cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005."

Even these early military commissions cases — let alone the "high value" detainee cases that have not yet begun — are shaping up to be largely about the systemic cruel and abusive treatment through which U.S. government interrogators extracted statements from detainees. The Bush administration's very public insistence that no torture has occurred puts great pressure on military commission prosecutors and judges — pressure that may amount to unlawful command influence — who will be confronted in the coming months with decisions to offer, or to admit, coerced statements. The prosecutor who decides not to offer a statement on grounds it was obtained through torture, or the military commissions judge who excludes a statement on that basis, will unavoidably be contradicting his (or her) commander-in-chief. Ethical tensions such as these already have contributed to resignations or requested transfers by four prosecutors, even before the first case has been tried. More may come. And one of the most unfortunate consequences of all this will be further delays in bringing to justice some detainees who quite likely have committed horrific crimes."

"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First.