The judge in the first American war crimes trial since the Second World War barred evidence obtained by interrogators from Osama bin Laden’s driver, ruling he was subjected to “highly coercive” conditions in Afghanistan.
However, Judge Keith Allred, a US Navy captain, left the door open for the prosecution to use statements Salim Hamdan made at Guantanamo Bay, Cuba, despite defence claims that all his statements were tainted by alleged abuse including sleep deprivation and solitary confinement.
Hamdan, who was captured at a roadblock in Afghanistan in November 2001, pleaded not guilty at the start of a trial that will be closely watched as the first full test of the Pentagon’s system for prosecuting alleged terrorists. He faces a maximum life sentence if convicted of conspiracy and aiding terrorism.
The chief prosecutor for the tribunals, Army Col Lawrence Morris, said the loss of some of Hamdan’s statements would not keep the trial from going forward.
“It does not reduce my confidence in our ability fully to depict Mr Hamdan’s criminality,” he said. “We’re fine.”
The judge said the prosecution could not use a series of interrogations at the Bagram air base and Panshir, Afghanistan, because of the “highly coercive environments and conditions under which they were made”.
At Bagram, 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 at Panshir repeatedly tied him up, put a bag over his head and knocked him the ground.
Michael Berrigan, the deputy chief defence counsel, described the ruling as a major blow to the tribunal system that allows hearsay and evidence obtained through coercion.
“It’s a very significant ruling because these prosecutions are built to make full advantage of statements obtained from detainees,” he said.
A jury of six officers with one alternate was selected from a pool of 13 flown in from other US bases over the weekend. Hamdan’s lawyers succeeded in barring others, including one who had friends at the Pentagon at the time of the September 11 2001 attacks, and another who once taught a course taken by a person who is now a key government witness against Hamdan.
Yesterday marked the first time after years of pre-trial hearings and legal challenges that any prisoner reached this stage of the tribunals.
The US plans to prosecute about 80 Guantanamo prisoners, including the self-proclaimed mastermind of the September 11 attacks and four alleged co-conspirators.
Hamdan appeared to go along with the process despite earlier threats to boycott. The Yemeni appeared to co-operate fully with his Pentagon-appointed military lawyer, whispering in his ear during the questioning of potential jurors.
In addition to the other interrogations, the judge said he would throw out statements whenever a government witness was unavailable to vouch for the questioners’ tactics. He also withheld a ruling on a key interrogation at Guantanamo in May 2003 until defence lawyers could review about 600 pages of confinement records provided by the government on Sunday night.
However, Judge Allred rejected allegations of a coercive culture at Guantanamo, where Hamdan said interrogators were gatekeepers for medical treatment.
The apparent link between medical care and Hamdan’s co-operation with interrogators, he said, was “the natural consequence of agents seeking to help detainees in order to build rapport”.
Hamdan has been held at Guantanamo since May 2002. A challenge filed by his lawyers resulted in a 2006 Supreme Court ruling striking down the original rules for the military tribunals. Congress and President George Bush responded with new rules, the Military Commissions Act.
Hamdan met bin Laden in Afghanistan in 1996 and began working on his farm before winning a promotion as his driver.
Defence lawyers say he only kept the job for the £100-a-month salary. But prosecutors say he was a personal driver and bodyguard of the al Qaida leader. They say he transported weapons for the Taliban and helped bin Laden escape US retribution following the September 11 attacks.