Detainee confessions may pose trial hurdle

Accused in a 2002 grenade blast that wounded two U.S. soldiers near an Afghan market, Mohammed Jawad was sent as a youth to Guantanamo Bay. Now, under orders by President Obama, he could one day be among detainees whose fate is finally decided by a U.S. court.

But in a potential problem, Pentagon officials note that most of the evidence against Jawad comes from his own admissions. And neither he nor any other detainee at the U.S. prison at Guantanamo Bay, Cuba, was ever told about their rights against self-incrimination under U.S. law.

The Miranda warning, a fixture of American jurisprudence and staple of television cop shows, may also be one of a series of constructional hurdles standing between Obama’s order to close the island prison and court trials on the mainland.

A procession of similar challenges -- secret evidence, information from foreign spy services and coerced statements -- also could spell trouble for prosecutors.

All of these problems illustrate the larger difficulty that lies ahead as the nation moves from the “law of war” orientation used by the Bush administration in dealing with detainees to the civilian legal approach preferred by Obama.

Obama last month announced sweeping changes, ordered humane treatment and invited in the international Red Cross. But the changeover will not be easy or quick, underscoring the complexity of undoing the Bush administration’s policies.

John D. Hutson, a former chief judge advocate general of the Navy who advised the Obama transition team, said the new administration simply has not decided on rules to detain and try terrorism suspects -- those at Guantanamo now, or those captured in the future.

“It’s still up in the air,” Hutson said, “to the consternation of some of the human rights groups.”

The administration has launched a review of the individual detainee cases, aimed at determining who can be prosecuted in federal courts.

“Miranda is an issue -- it is a potential issue in prosecution,” said a senior Obama administration official, speaking on condition of anonymity because the review is ongoing. “The purpose of the review is to see how much of an issue and to see in what cases it is possible to proceed.”

The administration is also reviewing whether the controversial military commission system instituted by President George W. Bush should be retained in some form for detainees who cannot be tried because of Miranda or other legal hurdles.

“The executive order purposely did not eliminate or do away with military commissions, and that is because there is an understanding that option needs to remain open to see what the review turns up,” the senior Obama administration official said. “Some revised type of military commission might possibly be necessary, but that is very much an open question.”

Under the Bush administration’s wartime approach, prisoners were captured and interrogated for intelligence purposes, then held as a preventive measure. No Obama official has suggested that prisoners should have been read their rights on a battlefield.

But once the decision was made to put them on trial, the legal picture changed. Some legal experts said they should have been re-interviewed and warned that their statements would be used against them. Others said that for many, the history of their captivity makes trial in civilian court improbable.

“If you want to prosecute them, I have to think Miranda would apply. Miranda always applies in criminal prosecution,” said a former Bush administration official, who spoke about pending cases on condition of anonymity. “Miranda hasn’t applied to most things that happened in war before because there is no prosecution involved.”

However, federal courts may find that Miranda does not apply to interrogations conducted for the purpose of intelligence gathering, said Gabor Rona, the international legal director for Human Rights First. Instead, judges may decide whether to accept confessions based on whether the statements were coerced.

“The idea that the failure to give Miranda warnings is a great impediment to using federal courts is a simplistic falsehood,” Rona said.

The prosecution of Jawad, now 24, has been hampered in other ways. Before Jawad’s military commission case was halted last month, a military judge had barred prosecutors from using Jawad’s confession to Afghan authorities as trial evidence, saying it was obtained through torture.

Jawad is not among the so-called high-value detainees at Guantanamo, whom U.S. officials charge had significant roles in Al Qaeda or in planning the Sept. 11 attacks. But those cases could also present problems involving coerced evidence, classified information and constitutional rights because of the collision between civil and wartime measures for dealing with detainees.

Lawyers and judges amid the controversy have noted that neither Congress nor the Supreme Court has grounded U.S. policy in one arena or the other, leaving uncertain which set of rules applies.

A federal judge in Washington hearing habeas corpus claims from Guantanamo prisoners expressed frustration on the issue.

“I don’t understand how the Supreme Court made the decision it made and left that question open,” U.S. District Judge Richard J. Leon said during an October hearing.

Meanwhile, civil liberties groups, while applauding Obama’s intention of overhauling the government’s approach to terrorism, are concerned that he also has held some Bush-era policies as options.

As an example, Jameel Jaffer, director of the ACLU’s National Security Project, called Obama’s plan to close Guantanamo “a promising start” but said it leaves open the option of preventive detention.

“That should be retired,” Jaffer said. “The right way to deal with people suspected of committing terrorism crimes is to prosecute them in ordinary federal courts.”

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julian.barnes@latimes.com

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