In a 13-page opinion made public today (but dated May 23, 2011), Judge Lamberth in al-Hajj v. Obama largely grants (but partly denies) a motion by GTMO detainee Sharqawi Abdu Ali al-Hajj to strike certain statements attributed to him from the government’s factual return in his habeas proceeding.
Al-Hajj alleges that after being captured in Pakistan in early 2002, he was held and abused in Pakistan (3 weeks), Jordan (2 years), a “dark prison” in Afghanistan (less than a year), and then finally was transferred to DOD custody at Bagram in May 2004. He alleges that he was abused at Bagram as well, and then was sent to GTMO in August 2004. Al-Hajj sought discovery to support these claims, and the court previously ordered the government to produce any information it might reasonably have that would support those allegations–warning that if the government did not deny the allegations or provide appropriate discovery, “the Court will not allow the government to use any forms of petitioner’s statements in its case-in-chief.” (slip op. at 3). In response, it appears that the government neither admitted or denied the allegations of abuse as to Jordan and Kabul, and that it produced nothing in response to the discovery requests. Al-Hajj therefore moved to strike his statements from the government’s factual return.
After reciting these events, the opinion first takes up the question whether it should conduct an “attenuation” analysis with respect to post-abuse statements or if, instead, it should simply exclude all al-Hajj’s post-abuse statements without further inquiry. Judge Lambert opts for the fomer option, observing that the impact of “earlier coercion may have dissipated” sufficiently to render a subsequent statement voluntary. (slip op. at 3) This is in keeping with other GTMO habeas cases dealing with this issue, as is his reliance on a “totality of the circumstances” test to measure attenuation.
Applying this approach, Judge Lamberth first notes that the allegations of abuse as to Jordan and Afghanistan are not contested and hence are effectively conceded–and that these allegations (beatings and threats of electrocution in Jordan, complete long-term light deprivation and constant loud music in Afghanistan) constitute undue coercion for purposes of the voluntariness analysis. (slip op. at 5) Judge Lamberth then separates al-Hajj’s statements into three groups for purposes of the taint analysis:
Statements in Pakistan prior to the abuse in Jordan and Afghanistan: Judge Lamberth concludes that the allegations of abuse while in Pakistani custody (based on solitary confinement for three weeks and a promise he’d be sent home if he cooperated) did not amount to “abuse, torture, or coercion,” and hence the statements from that period should not be excluded on voluntariness grounds. Note that this is a nice illustration of the fact that voluntariness in the GTMO habeas context is construed in a manner that is more forgiving than would be the case in the context of a criminal prosecution.
Statements at Bagram while in DOD custody: The government denied that abuse of al-Hajj occurred once he arrived at Bagram, and Judge Lamberth agrees. As to the allegation that he was held in a miniscule cell, Judge Lamberth finds that the government produced sufficient evidence to disprove al-Hajj’s claim that he had been kept in a 2′x3′ wooden cell at Bagram or that he was beaten by two guards (particularly in light of the relatively sparse factual allegations logged by al-Hajj in support of his claim to the contrary). As to the allegation of being beaten by guards, Judge Lamberth observes that (i) al-Hajj did not claim to be regularly beaten by guards at Bagram, and though a single beating in theory could constitute abuse of a degree relevant for this purpose, in this case al-Hajj himself did not suggest that the alleged beating was related to an effort to get information out of him. The only question as to the Bagram statements, then, was whether they were nonetheless tainted by earlier abuse in Jordan or elsewhere in Afghanistan. On this point, Judge Lamberth agrees with al-Hajj, finding that the taint of the earlier abuse was not yet sufficiently attenuated because of the very short time span since abuse at the Dark Prison. Hence, Judge Lamberth strikes all of al-Hajj’s statements provided to interrogators at Bagram.
Statements at GTMO: Al-Hajj did not allege abuse while at GTMO, so the only question here was whether the taint of the prior abuse sufficiently dissipated by that stage. His GTMO statements came within two months of his arrival there, thus giving rise to a “break period” of about 4-5 months from his prior abuse in the Dark Prison. This, Judge Lamberth concludes, was still not enough time to attenuate the taint. Notably, Judge Lamberth refuses to consider the content of al-Hajj’s GTMO statements in order to determine whether al-Hajj at that time no longer was influenced by the taint of prior abuse, describing this as “circular reasoning.” Judge Lamberth also is careful to contextualize his judgment that the passage of 4-5 months was inadequate in this instance, emphasizing that this was true at least in part because the prior period of abuse was more than two-years long (and thus the same break period could have been adequate if occurring against the backdrop of a different prior-abuse scenario). In addition, Judge Lamberth emphasizes that the GTMO statements in this instance were interrogation statements rather than statements made in the more formal setting of a CSRT proceeding.