Guantánamo Prosecutor Who Advocated Use of Torture Testimony Removed from U.S.S. Cole Bombing Case

A sec­ond mil­i­tary com­mis­sions pros­e­cu­tor who had advo­cat­ed using tes­ti­mo­ny obtained by tor­ture against defen­dants in the death penal­ty tri­al of the Guantánamo detainees charged with the October 2000 bomb­ing of the U.S.S. Cole (pic­tured) in waters off the coast of Yemen has been removed from the case.

Mark A. Miller, the lead pros­e­cu­tor in the Cole case, was not present at a sched­uled sta­tus con­fer­ence on September 14, 2022 and defense lawyers for the five men charged in the bomb­ing said they had been informed that Navy Rear Adm. Aaron C. Rugh, the Military Commissions’ chief pros­e­cu­tor had tak­en him off the case. 

International human rights treaties pro­hib­it the use of evi­dence derived from tor­ture and the Biden admin­is­tra­tion has said it would not use state­ments obtained from a defen­dant by tor­ture in that defendant’s tri­al. In a brief filed January 31, 2022 in the pros­e­cu­tion of accused Cole mas­ter­mind Abd al-Rahim al-Nashiri, the Department of Justice reversed pri­or Guantánamo pol­i­cy and 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.”

Nonetheless, in May 2022, Miller sought to use state­ments against Nashiri that had been obtained from anoth­er detainee, Ahmed Muhammed Haza al-Darbi, after U.S. sol­diers in Afghanistan, as report­ed by the New York Times, had kept him ​“hood­ed and nude, deprived of sleep, [and] used as an ash­tray,” and made him clean up ​“a fetid spill of human waste and diesel fuel with his bare hands.” Miller said that the inter­ro­ga­tion tac­tics were ​“unpleas­ant” and ​“shouldn’t have been done” but didn’t con­sti­tute tor­ture. He also argued that even if the evi­dence had been obtained through tor­ture, it was legal­ly admis­si­ble nev­er­the­less because its use against Nashiri didn’t amount to self-incrimination. 

Citing mil­i­tary com­mand orders, Rugh, who was named chief pros­e­cu­tor in June 2022, declined to answer ques­tions from the New York Times con­cern­ing his decision.

Miller is the sec­ond high rank­ing com­mis­sions pros­e­cu­tor whose depar­ture has been tied to sup­port for pre­sent­ing evi­dence obtained by tor­ture. After clash­ing with Biden admin­is­tra­tion offi­cials over the pro­pri­ety of using state­ments obtained through tor­ture from Guantánamo detainees, Army Brigadier General Mark S. Martins, the for­mer chief pros­e­cu­tor in the Guantánamo Military Commissions tri­als, abrupt­ly sub­mit­ted papers on July 7, 2021 pro­vid­ing notice of his early retirement. 

Nashiri has pre­sent­ed hun­dreds of pages of doc­u­men­ta­tion that CIA agents sub­ject­ed him to years of ​“phys­i­cal, psy­cho­log­i­cal and sex­u­al tor­ture” dur­ing inter­ro­ga­tions at so-call ​“black sites.” The evi­dence includes that 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.”

Seventeen American sailors aboard the Cole were killed and dozens more were injured in the bomb­ing. Nashiri was arraigned in November 2011 but the case has lan­guished in pre­tri­al pro­ceed­ings for than a decade, includ­ing lit­i­ga­tion over the government’s fail­ure to dis­clo­sure infor­ma­tion about the inter­ro­ga­tions in the black sites. The case has also been slowed by changes in court personnel. 

In September 2018, Air Force Colonel Shelley Schools announced her retire­ment, just one month after being assigned as the third judge to pre­side over the case. In April 2019, the U.S. Court of Appeals for the District of Columbia Circuit vacat­ed more than two years of pre­tri­al deci­sions, includ­ing more than 450 writ­ten orders in the case because of an undis­closed con­flict of inter­est by the pri­or mil­i­tary com­mis­sion judge, Air Force Colonel Vance Spath. Spath had retired after months of frus­tra­tion over devel­op­ments in Nashiri’s case fol­low­ing the res­ig­na­tion of Nashiri’s entire civil­ian defense team in October 2017 in protest of the government’s ille­gal eaves­drop­ping on their legal meetings. 

The pro­ceed­ings also were halt­ed for near­ly a year-and-a-half because of the pandemic.