“Torture evidence” can mean two things: evidence about torture, and evidence obtained through torture. In a decent legal system, the first kind is admissible and the second decidedly is not. Then there are the Guantánamo Military Commissions.

Last week, Carol Rosenberg reported that defense counsel and the Commissions’ convening authority have reached an agreement about convicted Al Qaeda courier Majid Khan, apparently to head off the need for Central Intelligence Agency (CIA) officers to testify about his torture in his sentencing proceeding. The jury will be instructed to impose a sentence of 25 to 40 years; but under the new agreement the judge will reduce it to 11 to 14 years (including time served). The military judge, Army Colonel Douglas K. Watkins, already lopped off an additional year because of prosecutorial misconduct. The result is that Mr. Khan could be released as early as next year, depending on the extent of his cooperation. Plainly this is as good an outcome as he could hope for.

The kicker is this: The agreement requires the defense to request vacatur of a landmark decision by Judge Watkins. That decision (more about it below) granted Mr. Khan sentencing credit on account of his torture, if it was proven. Judge Watkins also granted the defense motion to take evidence, including from CIA personnel involved in his abuse. Now, his ruling will be vacated. Apparently, the government thinks it is of the utmost importance not just to bury evidence of CIA torture, but to ensure a decision that could have allowed other detainees to expose their abuse is erased from the books.

A few days after the news of the Majid Khan agreement, another military judge, Army Col. Lanny Acosta, Jr., allowed prosecutors in the case of accused USS Cole bomber Abd-al-Rahim al-Nashiri to introduce a document containing statements that the defense said were “obtained by torture or cruel, inhuman, or degrading treatment” (CIDT). Judge Acosta’s decision found that the law barring such statements applies only to evidence at trial, not to their use in interlocutory matters.

Coming back-to-back, these two developments are the most recent confirmation of something that Guantánamo-watchers have long understood: The government will go to any lengths to bury the truth about CIA torture, at the same time that it presses to use the fruits of that peculiarly noxious tree. At Guantánamo, it seems, evidence about torture is out; statements obtained by torture are in, through the back door of non-trial proceedings.

A third legal event of last week took place an ocean away from Guantánamo, in The Hague. The day before Judge Acosta’s decision, an International Criminal Court (ICC) Trial Chamber admitted into evidence statements by the accused that were given while he was in the custody of security forces that allegedly tortured him. The parallel with Guantánamo is unmistakable and unfortunate – the sign of prosecutors desperate for convictions, and judges too willing to give them latitude to traffic in torture evidence.

Majid Khan: Background

Majid Khan, a Pakistani national, was arrested in 2003 and tortured for three years at a CIA black site before being transferred to Guantánamo in September 2006. As Scott Roehm and Hina Shamsi summarize in an earlier Just Security article:

CIA interrogators hung him by his hands from a wooden beam, naked and without food, for three days. Over and over they forcibly submerged him in a bath tub filled with ice and water until he thought he would drown. They raped him by “puree[ing]” his “‘lunch tray’, consisting of hummus, pasta with sauce, nuts, and raisins,” and pumping it into his intestines through a tube they forced into his rectum. For much of 2003, Mr. Khan lived in total darkness.

He was beaten, held in solitary confinement for two years, and interrogators threatened his family.

In 2012, Mr. Khan pled guilty to five charges. The most serious is that money he conveyed from Al Qaeda to its Indonesian affiliate helped finance the terror bombing of a Jakarta hotel that killed 11 people. That led to charges of murder and attempted murder, on a theory of indirect perpetration. (The bombing took place five months after his capture.) In return for his cooperation, Mr. Khan’s sentencing was postponed twice, for years at a time. The new agreement terminates the evidentiary part of the sentencing hearing.

Judge Watkins’ Opinion and the New Agreement

Prior to sentencing, the defense filed a motion requesting sentencing credit because of Mr. Khan’s torture and CIDT. (In what follows, I’ll simply say “torture” for ease of expression.) Judge Watkins’ June 2020 decision granted the motion, provided the abuse could be proven; and, in the course of his opinion, he made a number of notable legal findings. Some asserted the primacy of the international norm against torture. Among them:

  • That the “universal right to be free of torture is a jus cogens norm of international law”;
  • that the Universal Declaration of Human Rights’s anti-torture norm is binding customary international law;
  • that international human rights law applies in non-international armed conflicts, and is not displaced by the law of armed conflict (LOAC) as lex specialis because the LOAC is so sparse in these conflicts;
  • that “[t]he text and drafting history of the 1949 Geneva Conventions demonstrate specific intent to afford judicially-enforceable individual rights to detainees in military custody.”

This part of Judge Watkins’s opinion is the most resounding judicial affirmation that international law governs how we treat detainees since Hamdan v. Rumsfeld in 2006 (which held that the Geneva Conventions apply to the conflict with Al Qaeda, so that military commissions at Guantánamo must comply with Geneva Convention standards for fair trials). In truth, it goes much further than Hamdan in rejecting American exceptionalism when it comes to torture. Judge Watkins also asserted a broad authority for judges to fashion remedies when a defendant is tortured.

And, crucially, he found that if Mr. Khan’s allegations are true, “this mistreatment rises to the level of torture recognized in Toscanino and Rochin, and violated the jus cogens universal right to be free of torture under U.S. and international law.” This would be the first Military Commission finding that CIA mistreatment of a detainee in a black site is torture. (It is only the second such finding by any U.S. court.) For almost two decades, U.S. officials have bent over backward to avoid using the “T-word.” Judge Watkins did not.

It should come as no surprise that the government would find this opinion terrifying, and would want at all costs to avoid an evidentiary hearing on what the CIA did to Majid Khan, which might lead to a judicial finding that he was indeed tortured. For one thing, other defendants were abused just as badly. Even though a trial judge’s finding of torture in one case wouldn’t bind the judges in other cases, it might well persuade them. At the very least, it would be something they would have to dance around if they were inclined to find that the other defendants weren’t tortured. The decision would also make it harder to deny defense motions demanding CIA testimony that might confirm on the record what we already know from the Senate’s torture report.

In addition, of course, torture is a serious felony under U.S. law. And we should remember that the ICC prosecutor is currently investigating torture in U.S. black sites. Strictly speaking, Mr. Khan’s treatment is beyond the scope of the ICC investigation, which is limited to tortures connected with Afghanistan. But a judicial finding of black site torture by a Military Commission judge would certainly be relevant to the ICC inquiry.

Last December the government moved for reconsideration of Judge Watkins’ decision. Scott Roehm and Hina Shamsi analyze their argument in their earlier post, and I won’t say much about it here. Unsurprisingly, the government pushed back hard against the claim that international norms matter in U.S. law. This is a familiar position from the Bush administration’s “new sovereigntist” playbook, and by now there is at least some authority to back it up.

What is grotesque is to see this playbook deployed against the Convention Against Torture – as though one of the world’s weightiest human rights treaties, with 170 states parties including the United States, is for U.S. legal purposes a nonentity. Judge Watkins denied the motion to reconsider, and scheduled the evidentiary hearing. That prompted the new sentencing agreement, which as noted above requires the defense to move to vacate Judge Watkins’s opinion.

Judge Watkins is retiring, and a new judge, Air Force Col. Mark W. Milam, will rule on vacatur; there is every reason to expect him to grant the motion. In negotiating the agreement, Majid Khan’s defense counsel have done right by their client, in the highest ethical tradition of zealous representation. It will no doubt be a bitter moment for them when they move to vacate the best opinion they are ever likely to see from a Military Commission judge. As for Majid Khan, the deal puts him to a morally obnoxious choice: if he wants his liberty, he must trade away ever hearing from their own lips what his torturers put him through.

The Al-Nashiri Ruling on Evidence

The context for the Al-Nashiri ruling is the fierce discovery battles that have stalled the Military Commissions for decades, as the government fights to keep torture information out of the defense’s hands. In this case, the discovery fight was about a different issue: intelligence reports about two Al Qaeda operatives, one of whom was killed in 2015, who might be alternative suspects in the crimes of which Al-Nashiri is accused. To show that no remaining Brady material about these men exists, the government submitted reports that were partly based on Al-Nashiri’s black site interrogations. This is material obtained by torture, which the defense argued must be excluded from the discovery hearings.

The basis of their argument is firmly rooted in statute. Section 948r(a) of the Military Commissions Act (MCA) reads:

No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment, whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made (emphasis added).

Rejecting the defense argument, Judge Acosta finds that section (a) is referring solely to admissibility of torture evidence at trial, not its non-evidentiary use in proceedings other than trial. He points to other rules where “admissibility” refers to trial evidence. One is section (c) of the same statute that bars torture evidence. It is titled “Other Statements of the Accused,” and it reads: “A statement of the accused may be admitted in evidence in a military commission under this chapter only” under certain conditions (emphasis added). Judge Acosta writes:

The provisions in 10 U.S.C. § 948r use the terms “admissible in a military commission” in subsection (a) with respect to statements obtained by use of torture and “admitted in evidence” in subsection (c) in reference to the potential exclusion of “other statements of the accused.” There is no reason to believe that Congress intended to use those similar and related terms within the same provision of the statute to refer to substantially different procedures for handling statements made by an accused.

He buttresses this argument by citing other rules and statutes that also use “admissible” in connection with evidence at trial, for example the hearsay rule:

Additionally, Congress also used nearly identical terminology in the M.C.A. when establishing the guidelines for determining the admissibility of hearsay evidence in a military commission. Specifically, 10 U.S.C. § 949a(b)(3)(D) provides that “hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission only if . . .” (emphasis added). The Commission finds no basis to conclude that Congress intended for the term “admissible” to mean one thing with respect to statements of the accused obtained by torture, and something else entirely with respect to hearsay statements.

There’s a problem with the judge’s argument: it ignores the plain language of the statute, which excludes torture material from military commissions, not merely from trials in military commissions. This problem is most obvious in the connection the judge draws between the two clauses of § 948r, one saying that statements obtained by torture are not “admissible in a military commission,” the other specifying when a statement by the accused “may be admitted in evidence.” The judge thinks the phrases must mean the same thing. But a basic principle of statutory construction says just the opposite: when Congress uses different phrases in the same statute, it means different things, not the same thing. In this case: if Congress meant that statements obtained by torture are inadmissible in evidence, and nothing more than that, it would have said so, just as it did in the adjacent clause (subsection (c)).

All the judge’s other examples of “admissibility” explicitly speak of admissibility as evidence in a trial. The sole exception is the exclusion of statements obtained through torture or CIDT. Here and here alone, Congress explicitly broadens the inadmissibility: not only aren’t such statements admissible as evidence in a trial, they aren’t “admissible in a military commission.”

Judge Acosta calls his narrower construction a “plain reading” of § 948r(a), but it’s just the opposite: he reads narrowing words into the text that Congress didn’t put there, and he ignores the words it did.

An impatient reader might think that these are language games that lawyers play, overreading slight variations in the text to impute super-subtle distinctions to Congress. But this is not just a parsing game. Once statements obtained by torture are allowed into one interlocutory proceeding, they are admissible in others as well, and it seems they can now be used for any purpose other than trial. Torture would circulate through all the Commissions’ business like a noxious gas. It’s reasonable to suppose that Congress foresaw this evil, and wrote the law as it did to keep the stench of torture out of the military commissions altogether.

Allowing statements obtained by torture into interlocutory proceedings is especially troubling when it comes to suppression motions. Suppose the government tries to introduce a statement by the accused that it says wasn’t obtained by torture. According to § 948r(c), the judge must decide admissibility based on whether “the totality of circumstances renders the statement reliable and possessing sufficient probative value” and “the interests of justice would best be served by admitting the statement into evidence.” This nebulous language vests a nearly unlimited discretion in the trial judge. A suppression hearing is not a trial; it is an interlocutory proceeding. So, under Judge Acosta’s ruling, statements obtained through torture can be used by the judge to guide and perhaps color his decision. Torture evidence sneaks in through the back door.

This is not simply a fantasy hypothetical. Because of the prohibition on torture evidence, the prosecution’s case relies to a significant degree on re-interrogations of the accused by so-called “clean teams” in supposedly non-coercive circumstances. But cleanliness is in the eye of the beholder, and to determine whether statements given in these re-interrogations are truly voluntary, the eye that matters is the accused’s. It’s highly questionable whether men in custody who were tortured for years are speaking voluntarily when they are re-interrogated by the same government that imprisoned and tortured them. One of the key showdowns in these proceedings will be the suppression motions for “clean team” interrogations. Now, apparently, military judges will be able to consider statements obtained by torture when they evaluate reliability and the interests of justice, in the hocus-pocus of a “totality of circumstances” analysis.

The bigger picture

It is hardly news that Military Commissions have been dogged by one scandal after another, beginning as early as 2004 when a veteran Marine Corps prosecutor withdrew because he became convinced that he would have to present evidence obtained through torture. There was the hearing blacked out to observers by someone unknown to the judge, the moment the CIA black sites were mentioned; there was the interpreter detailed to the defense team who had previously worked for the CIA at a black site; there were the microphones disguised as smoke detectors installed in attorney-client interview rooms; and the prohibition on defense counsel doing independent investigations of the torture program; and so many more. (Marine Brigadier General John Baker, head of the Military Commissions Defense Organization, discusses several of these episodes here. I’ve written about others here and here.) Again and again, the scandals derailed the hearings. Proceedings have also been delayed by the frequent turnover of judges, some of whom were involved in conflicts of interest – but all the scandals I mentioned circle back to the torture issue.

It can hardly be exaggerated how much of the years-long pretrial scuffling is about torture – whether its details can be discovered or remain buried, and what the government can do to interfere with defense efforts to bring those details to light.

To take another example, consider once again the so-called “clean teams,” on whose interrogations the prosecution pins their hopes. In January 2020, shortly before Covid shut down the proceedings, the Commission heard testimony from James Mitchell, a civilian contract psychologist who helped design and run the torture program. One arcane line of questioning concerned the psychological theory on which Mitchell and his confederates relied as they devised abuses to break their victims. Was it “learned helplessness,” as a great deal of evidence suggests, or was it classical and operant conditioning, as Mitchell insisted in his testimony? One might ask: who cares? Why does it matter? Either way, it was torture under the letter of U.S. law. The answer is that conditioning supposedly wears off faster than learned helplessness. In that case, the prosecution can argue that the detainees were back to normal, rather than in the altered state of learned helplessness, by the time the clean team interrogated them.

In effect, trials about what the accused did or didn’t do have been stalled by a shadow trial about what their torturers did or didn’t do to them. It didn’t have to be this way. But for differing reasons, both the CIA and the prosecution have fought a scorched earth campaign to keep evidence about torture out of the proceedings, even though so much is already a matter of public record. Hence the delays. Hence the scandals.

The flip side is that the prosecution wants and needs the statements defendants and witnesses gave under torture. Even before Judge Acosta’s decision, the exclusion of torture evidence has been inexcusably porous. One rule of evidence, MCRE 304(a)(5)(A)(ii), excludes derivative evidence (that is, evidence derived from statements obtained through torture) “unless the military judge determines … that use of such evidence would otherwise be consistent with the interests of justice.” In other words, the exclusionary rule for these fruits of the poisonous tree is not an exclusionary rule at all. Exclusion is up to the judges’ sensibilities about the interests of justice.

A second and more subtle problem is that under the rules of evidence, the prosecution need not disclose classified information to the defense in discovery; instead, it may provide summaries. These summaries – frequently written at a high level of generality, with no context, and sometimes with no dates – are all the defense has to go on if it wishes to contest the admissibility of defendant statements under the nebulous “totality of circumstances” and “interests of justice” standard in MCRE 304. The prosecution gets to control what facts the accused is able to present to show that a statement was obtained by torture and is therefore excludable.

It seems, then, that Judge Acosta’s decision is not the only mechanism for letting torture evidence in the back door. Perhaps it’s worth reminding ourselves why this is a bad thing, apart from the notorious unreliability of tortured confessions. The wrongness is more fundamental; it derives from the wrongness of torture itself. If a court admits statements extracted through torture, or evidence derived from those statements, it rewards torturers instead of condemning and repressing them – doubly so when the torturers have never been held accountable any other way.

Rewarding torturers irrevocably taints the entire proceeding. Perhaps this is why Congress chose to prohibit statements extracted by torture from military commissions altogether, rather than to prohibit them only at trial.

Burying the evidence of torture, while surreptitiously admitting the fruits of torture: this is not what a decent legal system does.

Epilogue: Et tu, ICC?

Ironically, if you have a macabre sense of irony, the ICC seems to be up to the same antics. It is not in the Afghanistan investigation of U.S. torture. Rather, it is the Al Hassan case in the Situation in the Republic of Mali. The litigation calls for a separate analysis, but it’s worth mentioning here because of the similar issue: purportedly “clean” interviews with a torture victim while he was still in the custody of the government that tortured him.

Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud is charged with several crimes against humanity. He alleges that he was severely tortured while held by Malian security forces. While still in their custody, ICC investigators interviewed him, and the Prosecutor wants to use the interviews as evidence. For a quick summary of the issue, see this Twitter thread. Notably, the Prosecutor is aware that Al Hassan told his counsel that the conditions of his confinement were “like Guantánamo” (para. 48, here).

On May 17 the ICC’s Trial Chamber X rejected a defense request to exclude this evidence. More than that: it rejected the defense’s request for voir dire on the issues of fact (¶¶17–18), dismissed the reports of the defense’s medical experts (¶48), and granted the Prosecutor’s motion to exclude a defense submission containing a table pairing the Prosecutor’s assertions with “extracts of evidence which, in the Defence’s submission, purportedly refute those assertions” (¶22).

The Trial Chamber’s decision, in brief: we don’t want to hear about torture or the shadow it casts on evidence. Let the tainted evidence in.

Bringing to justice those accused of atrocious crimes is important – but justice is far too important to tarnish with torture.

IMAGE: This photo reviewed by the US military and made during an escorted visit shows the old courtroom building, pictured through a broken window from inside a vacant airplane hangar used for media activities at Camp Justice at Guantanamo Bay US Naval Base, Cuba, April 9, 2014. (Photo by MLADEN ANTONOV/AFP via Getty Images)