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The move comes as the administration
seeks to tamp down concerns about detainee policies that flared up after
attorney general-designate Michael Mukasey declined to tell senators whether he
believes that waterboarding, or simulated drowning of prisoners, constitutes
torture. The debate has focused on whether severe interrogation practices,
some of which critics consider to be torture, are legal, moral or effective.
In a House Judiciary subcommittee hearing today, Lt. Col. V. Stuart Couch, a
former Guantanamo Bay prosecutor, was set to testify regarding another concern
that has long troubled uniformed lawyers: Regardless of their accuracy,
statements obtained under torture or certain other forms of duress are
inadmissible in legal proceedings. Because most evidence against
Guantanamo prisoners comes from detainee statements, convictions hinge on
whether they can be used in court.
Asked last week to appear before the panel, Col. Couch says he informed his
superiors and that none had any objection.
Yesterday, however, he was advised by email that the Pentagon general counsel,
William J. Haynes II, "has determined that as a sitting judge and former
prosecutor, it is improper for you to testify about matters still pending in the
military court system, and you are not to appear before the Committee to testify
tomorrow." Mr. Haynes is a Bush appointee who has overseen the legal
aspects of the Pentagon's detention and interrogation policies since Sept. 11,
2001. The email was reviewed by The Wall Street Journal.
Pentagon spokesman Bryan Whitman said it was Defense Department policy not to
let prosecutors speak about pending cases.
House Judiciary Committee Chairman John Conyers Jr. (D., Mich.) said he was
"outraged that the Defense Department is refusing to allow Lt. Col. Couch to
testify before this committee, in his personal capacity and not on behalf of the
government, concerning what he saw and heard relating to interrogation practices
at Guantanamo." The subcommittee chairman, Rep. Jerrold Nadler (D., N.Y.),
said he would consider seeking a subpoena for Col. Couch if the Pentagon doesn't
allow him to testify.
As reported in a page-one article in The Wall Street Journal, Col. Couch refused
to bring charges against Mohamedou Ould Slahi after determining the detainee's
incriminating statements had been obtained through what Col. Couch considered to
be torture. Mr. Slahi, who is alleged to have helped recruit several of
the Sept. 11 hijackers, is one of two high-value Guantanamo prisoners who were
authorized to undergo "special" interrogation methods. In addition to
allegedly suffering physical beatings and death threats, Mr. Slahi was led to
believe that the U.S. had taken his mother hostage and might ship her to
Guantanamo Bay, where she would be the sole female amid hundreds of male
prisoners.
Col. Couch, now a military judge, said he reluctantly concluded it would be
impossible to prosecute Mr. Slahi without relying on tainted evidence. The
decision was particularly difficult, Col. Couch said, because a Marine buddy,
Mike Horrocks, had been the co-pilot on the hijacked United 175, which struck
the World Trade Center -- and because Col. Couch believed Mr. Slahi indeed had
taken part in the Sept. 11 conspiracy. After Col. Couch advised superiors
that the tainted evidence made it impossible to proceed against Mr. Slahi, the
prosecution was shelved. A Pentagon investigation concluded the abuses
didn't meet the legal definition of torture.
Write to Jess Bravin at
jess.bravin@wsj.com
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