Confessions of Guantanamo Detainee in Death Penalty Case Excluded as Product of Torture

On August 18, 2023, a mil­i­tary judge in Guantanamo Bay over­see­ing the pre­tri­al cap­i­tal pros­e­cu­tion of Abd al-Rahim al-Nashiri, the Saudi nation­al accused of orga­niz­ing the October 2000 bomb­ing of the U.S.S. Cole, exclud­ed Mr. al-Nishiri’s con­fes­sions as the prod­uct of tor­ture. ​“Exclusion of such evi­dence is not with­out soci­etal costs,” said the judge, Col. Lanny J. Acosta Jr., in a 50-page deci­sion. ​“However, per­mit­ting the admis­sion of evi­dence obtained by or derived from tor­ture by the same gov­ern­ment that seeks to pros­e­cute and exe­cute the accused may have even greater soci­etal costs.” This deci­sion rais­es seri­ous ques­tions about the admis­si­bil­i­ty of con­fes­sions made under sim­i­lar cir­cum­stances by the five detainees accused of the 9/​11 ter­ror attacks and may affect the plea nego­ti­a­tions cur­rent­ly under­way for these men.

Mr. al-Nishiri was water­board­ed and sub­ject­ed to oth­er forms of tor­ture for four years while in C.I.A. cus­tody through a pro­gram of ​“enhanced inter­ro­ga­tion.” The issue at the recent hear­ing was about the admis­si­bil­i­ty of con­fes­sions he alleged­ly made in ear­ly 2007, after the vio­lent inter­ro­ga­tions end­ed. The pros­e­cu­tion argued that his con­fes­sions at that time were vol­un­tary and admis­si­ble. But the judge dis­agreed, find­ing that ​“If there was ever a case where the cir­cum­stances of an accused’s pri­or state­ments impact­ed his abil­i­ty to make a lat­er vol­un­tary state­ment, this is such a case. Even if the 2007 state­ments were not obtained by tor­ture or cru­el, inhu­man, and degrad­ing treat­ment, they were derived from it.”

Judge Acosta’s rul­ing came at the close of a three-week pre-tri­al hear­ing which fea­tured a re-enact­ment of an inter­ro­ga­tion scene endured by Mr. al-Nishiri, and details of tech­niques used against him includ­ing water­board­ing, sleep depri­va­tion, phys­i­cal abuse, and the use of cramped con­fine­ment box­es for hours at a time.

Defense lawyers have long argued that the tor­ture and trau­ma endured dur­ing years-long inter­ro­ga­tions at CIA black sites and again in Guantanamo have caused per­ma­nent dam­age to their clients and should make them inel­i­gi­ble for the death penal­ty. The Pentagon and the FBI recent­ly advised many of the fam­i­ly mem­bers of 9/​11 vic­tims by let­ter that plea nego­ti­a­tions could ​“remove the pos­si­bil­i­ty of the death sen­tence.” In October, 2021, sev­en of eight mem­bers of a mil­i­tary com­mis­sions jury urged clemen­cy for Majid Khan, an alleged Al-Qaeda couri­er, after hear­ing details about his years of tor­ture by C.I.A. agents and operatives.