Department of Justice Reverses Course, Rejects Use of Evidence Obtained by Torture in Guantánamo Death Penalty Case

In what one analyst described as “an important step to restore the rule of law,” the U.S. Department of Justice has pledged not to use statements obtained by torture in its Guantánamo Military Commissions prosecution of Abd Al-Rahim Hussein Al-Nashiri. Al-Nashiri is accused of masterminding the Al Qaeda suicide bombing of the U.S.S. Cole that killed 17 U.S. sailors in October 2000. The U.S. government is seeking the death penalty against him.

In a brief filed January 31, 2022, the Department of Justice said, “The government recognizes that torture is abhorrent and unlawful, and unequivocally adheres to humane treatment standards for all detainees. … [T]he government will not seek admission, at any stage of the proceedings, of any of petitioner’s statements while he was in CIA custody.”

That promise “should be unremarkable,” former National Security Council and U.S. State Department legal adviser Tess Bridgeman wrote in a February 1, 2022 commentary in Just Security, given U.S. human rights obligations under the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, it represented a dramatic departure from pleadings filed by former military commissions chief prosecutor Brig. Gen. Mark S. Martins, in which U.S. authorities claimed that the federal Military Commissions Act permitted the consideration in pretrial proceedings of evidence obtained by torture.

Al-Nashiri’s lawyers filed a petition in the U.S. Court of Appeals for the District of Columbia Circuit In October 2021 seeking to bar prosecutors from presenting “torture-derived evidence” in any proceedings in his case. Human rights experts called the U.S. government’s response to the motion “a ‘moment of truth’ for the Biden Administration on torture.”

Although the Department of Justice’s filing does not prevent future administrations from attempting to use evidence obtained through torture in other military commission cases, prosecutors told the court that they had reviewed prior ex parte submissions in the case and discovered a prior order “predicated on evidence admitted in violation of” the prohibition against torture. The government said it would “move promptly to correct” that error.

Al-Nashiri’s trial has been repeatedly delayed, most recently due to General Martins’ abrupt retirement prompted by the Biden Administration’s objections to the use of evidence obtained by torture. The New York Times reported that Martins had “repeatedly butt[ed] heads with Biden administration lawyers over positions his office had taken on the applicable international law and the Convention Against Torture at the Guantánamo court.”

Al-Nashiri has alleged, supported by hundreds of pages of documentation, that he was tortured by CIA agents. A 2017 petition to the U.S. Supreme Court described how CIA operatives subjected him to 14 years of “physical, psychological and sexual torture.” They presented evidence that al-Nashiri was subjected to waterboarding, forcible sodomy, starvation, rectal force-feeding, sleep deprivation, being placed in a coffin-sized box for a total of 11 days and a box the size of an office safe for 29 hours, and being threatened with a racked gun and a revved power drill while being suspended, naked and shackled, from the ceiling of a cell in a black site one CIA agent described as “the closest thing he has seen to a dungeon.”

The CIA’s use of these interrogation practices is also documented in a 2014 report of the U.S. Senate Select Committee on Intelligence, known as “The Torture Report.”

Bridgeman offered praise after military prosecutors repudiated the use of torture-derived evidence, writing, “The Biden administration just took an important step to restore the rule of law … at the Guantanamo military commissions.”