Common Dreams / Published on Thursday, March 2, 2006 by Agence France PresseRob Jennings
US military officers, breaking with domestic and international legal precedent, said that "war on terror" military tribunals at the Guantanamo naval base could allow evidence obtained through torture.
The US military officer presiding over the trial of an alleged aide to Osama bin Laden said he was not ready to rule out such evidence.
The officer, who wields power similar to a judge, was asked by the defense lawyer representing Ali Hamza Ahmad al-Bahlul, a Yemeni accused of plotting terror attacks for bin Laden's Al-Qaeda network, if he was ready to exclude all evidence secured through torture.
After a long pause, Colonel Peter Brownback declined to commit to a blanket ban on evidence obtained as a result of torture.
"What you and I mean by torture could be different," Brownback told defense lawyer Major Tom Fleener.
He said "a red-hot needle in the eye" constitutes torture but was not ready to commit to a prohibition in advance of the trial. "My personal belief is that torture is not good," he added.
But he said it would depend on the circumstances and how the prosecution presented the evidence.
Bahlul's lawyer, who has the right to question the tribunal chief to verify his client will receive impartial treatment, said he asked the question because he alleged his client had been tortured while in detention.
"I believe Mr al-Bahlul was tortured," Fleener said.
He added that "it's going to be an issue" in the trial.
Brownback did say that how evidence was obtained would be a factor in whether to admit such evidence and how to evaluate it.
After the hearing, US officers confirmed that the rules written for the newly created military tribunals, or commissions, left the question open. The rules also allow for hearsay evidence and other exceptions to standard US and international legal norms.
Asked about evidence secured through coercion, a spokeswoman for the military tribunals said the issue would be addressed by the officers presiding over each trial.
"I can't speculate on what a presiding officer is going to do in any situation," Major Jane Boomer told a news conference.
Defense lawyers, human rights groups and European governments have accused the United States of abusing and torturing detainees held at the "war on terror" prison at the Guantanamo Bay naval base in Cuba.
Brownback's comments are sure to reinforce concerns about how the US government treats and prosecutes detainees held as part of the "war on terror."
The US military has denied systematic torture has been employed and insisted that any isolated abuses have been punished.
Of some 500 detainees held at Guantanamo for more than four years, Bahlul is one of 10 detainees formally charged by US military tribunals.
Addressing the tribunal in a courteous, articulate manner, Bahlul said earlier he could not receive a fair trial if he was represented by a US citizen.
Bahlul said the impact of the September 11 attacks, which he said had left a "deep psychological scar," meant that no US lawyer would be able to argue effectively on his behalf.
It would be "impossible for the counsel to push aside his feelings as an American," said Bahlul, speaking through an interpreter.
He renewed his request to be allowed to represent himself, though tribunal rules require that he accept a US lawyer, and asked for an attorney from his native country.
He sought to clarify earlier comments that he was a member of Al-Qaeda, saying that he did not have anything to do with the attacks of September 11, 2001.
"I had no connection to the events of September 11," he said.
Prosecutors allege he served as a propaganda specialist and bodyguard for bin Laden in Afghanistan before he was captured in 2001 and transferred to the controversial US-run detention camp at the Guantanamo Bay US Naval Base in Cuba.
The presiding officer rejected Bahlul's request, saying he could have a foreign citizen as a legal adviser but that the tribunal rules barred him from representing himself.
After several hours, Bahlul chose not to return to the hearing following a recess.
The presiding officer said he would not order Bahlul to be forcibly taken to the tribunal if he refused to attend the hearing when it resumed on Thursday.
Fleener, the defense lawyer assigned to Bahlul, said it was "absurd" that Bahlul could not argue his own case. He cited US domestic and military law as well as the Nuremberg war crimes trials, which he said allowed for self-representation or for citizens of the same nationality to serve as defense lawyers.
