''If the evidence is reliable and probative and the judge concluded it is in the interest of justice to use that evidence,'' it would be admitted, Air Force Brig. Gen. Thomas Hartmann told a Senate Judiciary terrorism subcommittee in Washington Tuesday.
Still, Hartmann testified that statements obtained by torture are barred at the hearings, or Combat Status Review Tribunals. The tribunals at the U.S. Navy base in southeast Cuba are to determine whether prisoners can be held as enemy combatants.
California Democrat Dianne Feinstein, the subcommittee chairwoman, asked Hartmann whether his testimony meant that ``evidence from waterboarding is not being used to prepare cases.''
''No, Ma'am, I didn't say that,'' Hartmnan replied. ``The evidence we are gathering is the evidence we are gathering. It can't be discussed in the abstract.''
Almost 760 suspected terrorists have been held at Guantánamo Bay since the prison camps were established in January 2002. The Pentagon holds about 305 captives today.
The Central Intelligence Agency confirmed last week that it destroyed videotaped evidence of questioning of al Qaeda leader Abu Zubaydah, a Guantánamo detainee, prompting congressional investigations and calls for a special counsel to probe the matter.
John Kiriakou, the head of a CIA team that interrogated Zubaydah after his 2002 capture, told ABC News that waterboarding broke the al Qaeda leader's refusal to cooperate. Even though waterboarding may be torture, Kiriakou said, it yielded intelligence that thwarted ''maybe dozens'' of planned attacks.
Hartmann denied allegations in a New York Times Op-Ed piece by the Defense Department's former chief prosecutor, Air Force Col. Morris Davis, that the tribunal process has been politicized.
''There has been no political influence,'' Hartmann said.
Feinstein said she regretted that the Bush administration wouldn't allow Davis to testify. ''The administration is trying to stop a fair and open discussion about the legal rights of detainees at Guantánamo,'' she said.
Hartmann declined an invitation from South Carolina Republican Lindsey Graham to say whether waterboarding violated the 1949 Geneva Conventions that prohibit cruel and degrading treatment of prisoners of war.
''I am not prepared to answer that question,'' Hartmann replied.
Some Republicans on the panel said that giving detainees more procedural rights will endanger U.S. security. Letting defendants have access to intelligence obtained from Middle East nations would hurt U.S. relations with these countries and dry up sources of valuable information, said Arizona Republican Jon Kyl.
''These people are dedicated to the destruction of America,'' said Alabama Republican Jeff Sessions. ``This committee should focus more on how to protect our nation rather than trying to see how many we can release.''
Only one detainee, Australian David Hicks, was prosecuted for war crimes. He pleaded guilty to providing material support for terror and is due to be released from an Australian jail by New Year's Eve.
Hartmann said he was frustrated by the military's inability to go forward with proceedings against some of the detainees.
''My focus is on the trials,'' he said. ``I want to change that record.''
Illinois Democrat Dick Durbin told Hartmann that the release of 470 detainees ''may be an indication that we got it wrong'' with ``over half the people we brought to Guantánamo.''
''In my heart of hearts, I am convinced we have the right process,'' Hartmann replied.
