Court hears arguments over detainee's confession

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JESSE J. HOLLAND | January 13, 2009 01:16 PM EST | AP

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WASHINGTON — Lawyers for a young Guantanamo detainee called Tuesday for a military appeals court to uphold the dismissal of his confession to attacking U.S. forces. The lawyers argue that the confession was obtained by American interrogators soon after he was tortured by Afghan authorities.

While Mohammed Jawad wasn't tortured by U.S. interrogators, "the effects are going to linger," said Air Force Maj. David J.R. Frakt, the detainee's lawyer, argued to a three-judge panel at the United States Court of Military Commission Review.

Pentagon lawyers argued to the panel, which met at the U.S. Court of Appeals for the Federal Circuit, that the American interrogation was legal and should not be tainted by what Afghan authorities did to Jawad before he was given over to U.S. custody.

"This was a separate and distinct interrogation," said Navy Cmdr. Arthur L. Gaston III.

Jawad is accused of throwing a grenade that injured two American soldiers and their interpreter in Kabul in 2002, when he was 16 or 17. Jawad is being held at the U.S. military prison at Guantanamo Bay, Cuba, one of the youngest detainees there.

A military judge, Army Col. Stephen Henley, ruled that Jawad's confession to Afghan police commanders and high-ranking government officials on Dec. 17, 2002, was achieved only after they threatened to kill him and his family _ a strategy that Henley said was intended to inflict severe pain and constituted torture.

Henley disqualified Jawad's second confession while in U.S. custody on Dec. 17 and 18, in part because the U.S. interrogator used techniques to maintain "the shock and fearful state" associated with his arrest by Afghan police, including blindfolding him and placing a hood over his head.

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"The subsequent confession was itself the product of the preceding death threats," Henley said.

Under the Military Commissions Act, which governs America's first war-crimes trials since the World War II era, statements obtained through torture are not admissible.

The military judges questioned whether they could ignore the fact that Jawad was tortured into his first confession. "Can we admit coerced statements that are not voluntary? That's the basic question." said Navy Capt. Daniel E. O'Toole.

But they also questioned how long interrogators are supposed to wait to question someone if they think the person has been tortured by someone out of their control. "This is the battlefield," said Rhode Island Supreme Court Justice Frank J. Williams, who serves as chief judge.

The judges did not say when they would make their ruling.

The American Civil Liberties Union, Amnesty International, the Coalition to Stop the Use of Child Soldiers, Human Rights First and Human Rights Watch asked President-elect Barack Obama on Monday to suspend proceedings against Jawad because of his age when his alleged crimes occurred.

(This version CORRECTS SUBS lede graf to correct to military appeals court, sted federal appeals court.)