Chapter4 Access to Justice | 81
test. First, the Government must identify the categories of information it seeks to
protect and provide a valid basis for withholding information in those categories.
Second, the court must determine whether the specific information the Government
has designated for protection properly falls within the category identified in the
first step. 212
182. When addressing issues related to the voluntariness of detainees’ statements, the
D.C. District Court has adopted a basic framework. The district court judges require
voluntariness as a condition of admissibility, and when a detainee establishes
coercion or the Government does not contest a coercion allegation, they import an
attenuation analysis, a multi-factor test, to see how long the taint of that coercion
continues to affect statements made later under non-coercive circumstances. The
D.C. Circuit Court, however, has avoided addressing this issue. 213
183. In Al-Hajj v. Obama the detainee alleged that inculpatory statements were obtained
by coercion or under the influence of past coercion. On May 23, 2011, the D.C.
District Court granted the detainee’s motion to strike statements he made in
custody at Guantanamo from the factual return because respondents failed to
establish that the effects of coercion from his previous detention had dissipated.214
The detainee stated, without refutation, that he had been subject to torture in
Jordan and Afghanistan prior to his arrival at Guantanamo. The court applied the
attenuation analysis with factors including the time passing between confessions,
change in place of interrogations, change in identity of the interrogators, length of
detention, repeated and prolonged nature of questioning, the use of physical
punishment, and the continuing effects of prior coercive techniques on the
voluntariness of any subsequent confession. The Government bore the burden of
proving by a preponderance of the evidence that each confession was voluntary.
184. According to inter-American standards, no one can be deprived of their liberty
without due process of law, and, regardless of their status, everyone has the nonderogable right to judicial review of their detention. 215 The Inter-American
Commission has long recognized that the writ of habeas corpus is an essential
guarantor of the right to be free from arbitrary detention. One fundamental
principle established in the inter-American system is that for a remedy to be
effective, “it must be truly effective in establishing whether there has been a
violation of human rights and in providing redress.” Further, judicial remedies
“cannot be reduced to a mere formality” and “must examine the reasons invoked by
the claimant” and make express findings in response. 216
212
213
214
215
216
In re Guantanamo Bay Detainee Litig., 787 F. Supp. 2d 5 (D.D.C. 2011).
See in this regard Lawfare, An Additional Thought on Al-Hajj, by Benjamin Wittes, June 8, 2011. Available at:
http://www.lawfareblog.com/2011/06/an-additional-thought-on-al-hajj/
Al-Hajj v. Obama, 800 F. Supp. 2d 19 (D.C.C. 2011).
See, mutatis mutandi, I/A Court H.R., Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the
American Convention on Human Rights), Advisory Opinion OC-9/87 of October 6, 1978. Series A No. 9.
Paras. 29-30.
IACHR, Report on the Use of Pretrial Detention in the Americas, OEA/Ser.L/V/II. Doc. 46/13, December 30,
2013, para. 197.
Inter-American Commission on Human Rights | IACHR
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents