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.”