In his excellent May 28 article, David Luban observed that “[i]n a decent legal system,” courts do not admit evidence extracted by torture. I would add that in a decent legal system, the government does not ask them to, nor does it press other arguments that disregard the absolute prohibition on torture.
David’s piece examines the recent Guantanamo military commission ruling that the government can use torture-derived material in its capital case against Abd-al-Rahim al-Nashiri. Specifically, prosecutors sought (and received) permission from the commission, in the context of a discovery dispute, to rely on statements attributed to al-Nashiri while he was being tortured at a CIA black site in late 2002.
The use of evidence obtained by torture is also at issue in Duran v. Trump, a habeas petition pending in the U.S. District Court for the District of Columbia. According to Duran’s counsel, it is “the first and only detainee habeas case litigated since [Boumediene v. Bush] in which the government has relied in its case-in-chief on evidence obtained from a [Guantanamo] detainee while that individual was subjected to the CIA torture program.”
The ruling in al-Nashiri comes on the heels of prosecutors in U.S. v. Khan asking Judge Col. Douglas Watkins to reconsider his decision that he has authority to award Khan sentencing credit for torture. David characterized Judge Watkins’ opinion as the “most resounding judicial affirmation that international law governs how we treat detainees since Hamdan v. Rumsfeld.” The government’s reconsideration motion was equally eye-opening – a full-throated repudiation of the scope, force, and effect on the United States of international law generally and the prohibition on torture specifically. In particular, prosecutors claimed that the prohibition on torture is still an “emerging” jus cogens norm, and in any event that the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) is “not binding ‘law’ for a court to consider, apply, or rely upon.” Judge Watkins denied the motion, but the government refused to let the opinion stand, ultimately requiring Khan to request its vacatur as a condition of his recently reached plea deal.
Senior executive branch officials, former presidents included, have previously rejected all of these tactics and positions. For example, in its 2015 periodic report to the Committee Against Torture, the United States declared:
The United States upholds the bedrock principle that torture and cruel, inhuman, and degrading treatment or punishment are categorically and legally prohibited always and everywhere, violate U.S. and international law, and offend human dignity. Torture is contrary to the founding principles of our country and to the universal values to which we hold ourselves and the international community.
The report further specified that CAT obligations apply during times of war, and at Guantanamo.
The United States has also made representations to the Committee Against Torture regarding the use of torture-derived evidence in the military commissions. In its 2013 periodic report, the United States assured the Committee that section 948r of the Military Commissions Act (“MCA”) satisfied Article 15 of CAT, which categorically prohibits using material extracted from torture except against alleged torturers. In other words, the United States preemptively foreclosed the argument on which government lawyers prevailed in al-Nashiri.
Moreover, while participating in negotiating and drafting CAT, the United States lobbied to add Article 15’s lone exception (use against torturers) in an effort to strengthen the exclusionary rule’s deterrent effect. If government officials knew that information produced through torture could facilitate their own prosecution, but never that of their victim, they may be less likely to engage in torture.
The executive branch’s longstanding official positions on these issues – which reflect a plain reading of applicable law – should have been sufficient to prevent counsel from advancing contrary arguments in al-Nashiri, Duran, and Khan. Instead, there is an obvious need for clarity around what current law and policy prohibit, both to protect defendants’ rights and to avoid undermining U.S. international commitments and foreign relations.
Attorney General Merrick Garland and Secretary of Defense Lloyd Austin should partner in that project by taking the following steps:
Department of Justice Guidance
Garland should issue guidance explaining that Department of Justice personnel cannot use – for any purpose in any judicial or administrative proceeding – any statement made by, or evidence otherwise obtained from, any person while in CIA or foreign government custody or control in connection with the CIA’s rendition, detention, and interrogation program. The guidance should include an exception for use against a person accused of torture or cruel, inhuman or degrading treatment or punishment as evidence that the statement was made.
While existing law is clear, this would remove any doubt about whether, when, and how those existing U.S. obligations under CAT apply to any particular victim of the CIA torture program. Doing so is appropriate for several reasons. It would avoid individual, fact-specific determinations about whether a particular statement or other information was obtained by torture in a context where what we know is shocking, but pervasive secrecy remains. (The government adopted this approach a decade ago in U.S. v. Ghailani, when it asked Federal District Court Judge Lewis Kaplan “to assume … that everything Ghailani said from the minute he arrives in CIA custody [un]till the minute he gets to Guantanamo at least is coerced.”). And it would eliminate any risk of the government resuscitating shameful arguments like the notion that “rectal rehydration” was used as a legitimate medical procedure and so did not constitute torture.
Garland should also require consultation with the Office of the Legal Adviser at the State Department prior to Justice Department personnel taking a position before a judicial or administrative body that implicates U.S. CAT obligations.
The Legal Adviser has primary responsibility within the government for treaty interpretation and for defending and representing the United States before relevant treaty bodies. Their expertise is necessary in the litigation process, both substantively and to harmonize positions across the government.
To some extent, current policies already require this sort of inter-agency consultation and coordination. According to the Justice Manual – which contains publicly available department policies and procedures and provides internal guidance – “[w]hen national security issues arise during a criminal prosecution, they must be resolved through careful coordination by the Department of Justice (Department) with high level officials from the intelligence, military and foreign affairs communities.”
The Manual likewise emphasizes that “successful prosecution of [matters involving torture, war crimes, genocide, female genital mutilation, and recruitment or use of child soldiers] requires both careful coordination within the Department of Justice and careful coordination between the Department and senior officials in the foreign affairs and military communities.”
Department of Defense Guidance
For his part, Defense Secretary Austin should issue a department-wide memo reaffirming the United States’ commitment to upholding the prohibition on torture. Like the Attorney General, and for the same reasons, he should require consultation with the State Department Legal Adviser prior to Defense Department personnel taking a position before a judicial or administrative body that implicates CAT obligations. Austin should also similarly define the scope of the prohibition on using statements or other information obtained from CIA torture program victims, and implement that clarification by revising the Manual for Military Commissions (“Manual”).
The MCA authorizes the Secretary of Defense to prescribe “pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission.” This is done via the Manual, Part III of which sets out Rules of Evidence. Rule 304 mirrors the MCA’s exclusionary rule for statements obtained by torture (section 948r), and provides additional guidance for use of derivative evidence.
Austin should revise the Manual to add the following subsection to Rule 304:
(b) Exclusion of statements by, or evidence otherwise derived from, persons in Central Intelligence Agency or foreign government custody or control in connection with the Central Intelligence Agency’s rendition, detention, and interrogation program.
No statement made by, or evidence otherwise obtained from, any person while in Central Intelligence Agency or foreign government custody or control in connection with the Central Intelligence Agency’s rendition, detention, and interrogation program may be used for any purpose related to a military commission, except against a person accused of torture or cruel, inhuman or degrading treatment or punishment as evidence that the statement was made.
The manual also includes “Discussion” sections throughout to further explain aspects of particular rules. Austin should add one, as follows, in connection with his addition to Rule 304:
Mil. Comm. R. Evid. 304(b) is intended to ensure that the United States abides by its obligations pursuant to Article 15 of the Convention against Torture and other Cruel and Inhuman or Degrading Treatment or Punishment in the context of the Central Intelligence Agency’s former rendition, detention, and interrogation program.
Securing the “Grounding Wire of [U.S.] Global Power”
Both Austin and Garland need to act with urgency. President Biden has pledged a foreign policy that “start[s] with diplomacy rooted in America’s most cherished democratic values: defending freedom, championing opportunity, upholding universal rights, respecting the rule of law, and treating every person with dignity.” He called this the “grounding wire” of U.S. global power.
That wire is fraying fast. It may be that some of what is happening in cases like al-Nashiri, Duran, and Khan – especially in the early months of the Biden administration – can be attributed to insufficient internal oversight during a chaotic post-Trump transition. But that does not mitigate the harm. Whether the Biden administration simply needs to get its house in order, or the problems are more substantive, adopting the recommendations above would establish a straightforward layer of additional protection to prevent more of the same going forward.