The Biden administration just took an important step to restore the rule of law in the Al-Nashiri case at the Guantanamo military commissions: it categorically rejected the use of statements obtained through torture at any stage in the proceedings and promised that the government will not seek to admit any statements the petitioner made while in CIA custody. This should be unremarkable, as it clearly reflects U.S. domestic and international legal obligations and Biden administration policy, but the position the Department of Justice (DOJ) took in its brief filed in the D.C. Circuit Court of Appeals on Monday is actually an about-face from the position prosecutors took before the military commission judge. The Al-Nashiri case has a long history, but this most recent controversy stems from prosecutors’ decision to seek to admit statements obtained through torture in pre-trial proceedings in the capital case of Abd Al-Rahim Hussein Al-Nashiri, the “alleged mastermind” of the U.S.S. Cole bombing. Although the prosecution eventually withdrew the particular statements at issue, it had essentially reserved the right to rely on torture-obtained evidence in future proceedings.
In October of last year, Al-Nashiri filed a petition for a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit that sought “to enjoin the government from offering, and the military commission judge from considering, torture-derived evidence.” The much-awaited U.S. government response — called a “moment of truth” for the Biden administration on torture — came yesterday.
Here’s the key passage from the government’s brief:
The government recognizes that torture is abhorrent and unlawful, and unequivocally adheres to humane treatment standards for all detainees. See Executive Order 13491. In the absence of direct authority interpreting Section 948r(a), the government took the position below that Section 948r(a)’s prohibition on admission of statements obtained through torture or cruel, inhuman, or degrading treatment applies only to the trial and sentencing phases of a military commission and not to pretrial proceedings. Since that filing, the government has reconsidered its interpretation of Section 948r(a) and, as a result of that review, has concluded that Section 948r(a) applies to all stages of a military commission case, including pretrial proceedings. In accordance with that conclusion, the government will not seek admission, at any stage of the proceedings, of any of petitioner’s statements while he was in CIA custody.
The brief is signed by Col. George Kraehe, the Interim Chief Prosecutor of the Military Commissions (following long-time chief prosecutor Gen. Mark Martins’ resignation), Assistant Attorney General for National Security Matthew Olsen, and two DOJ National Security Division attorneys.
There will surely be much analysis to follow, but here are a few immediate take-aways:
The senior team got it right, but the litigation team didn’t. When the issue of using torture-obtained statements at any stage in the commissions proceedings was elevated to senior levels (most likely including senior attorneys at DOJ, the Departments of Defense and State, at intelligence agencies, and possibly at the White House), the government took the right position on the law and acted in a way that is consistent with Biden administration policy. That’s a good thing. But it also shows that the prosecution team at Guantanamo (which includes DOJ attorneys) made a very different set of litigation decisions that are not consistent with U.S. legal obligations or Biden administration policy. That’s a flashing red light that the military commissions prosecutions are broken.
The substance of the U.S. position is appropriately categorical. Rather than trying to parse various statements made when the petitioner was held in black sites, the government brief concludes as a blanket rule that statements made “while he was in CIA custody” will be excluded. That’s the right answer as a matter of law and policy. (Because the government asks the court not to adjudicate absent a ripe dispute, questions could remain about the exact parameters of the prohibition on torture-tainted evidence that the government now acknowledges, but it seems less likely the government would try to blur the lines after this episode.)
The government is taking the issue seriously in this case; but what about the other cases? The government brief states that it has “conducted a search of this case’s voluminous record, including the prosecution’s ex parte submissions” to determine whether there have been any “past orders predicated on evidence admitted in violation of” the Military Commissions Act’s prohibition of the admission of statements obtained through torture or CIDT. It found one, and has committed to “move promptly to correct” the error. This shows the administration is taking the issue seriously.
But given al-Nashiri isn’t the only petitioner who was in the CIA’s black sites, and that the prosecution regularly makes ex parte submissions in commission proceedings, there may be instances in other cases pending before the military commissions where the same problem is lurking and could compromise the prosecution. If it isn’t doing so already, the government would be wise to undertake a thorough review of all commissions cases and withdraw any submissions it might find that contain information obtained from torture or CIDT.
Will the government inch closer to winding commissions down? There is a remarkable sentence 24 pages into the government’s brief acknowledging the immense challenges that torture has created for the military commissions at Guantanamo:
There is no question that the government’s decision to subject petitioner to enhanced interrogation techniques has created, and will continue to create, difficult issues related to discovery, admissibility of evidence, and other challenges petitioner may raise.
This is as close as we’ve seen to an admission that torture has poisoned the well of the military commission cases. Coming on the heels of Majid Khan becoming the first detainee to speak to his torture in U.S. government custody (prompting a handwritten letter recommending clemency by seven out of eight members of the panel of military officers serving as his jury), could steam be gathering to finally wind down the military commissions through plea arrangements like Khan’s?
As Ian Moss explained here (and Scott Roehm has also advocated), negotiated resolutions to the pending cases are the graceful exit the government needs from the military commissions. It’s a bittersweet win-win for all sides, as Moss explains: “While the taint of torture will never disappear,” as the government now seems to acknowledge in the al-Nashiri brief, “negotiated resolutions present an opportunity to sidestep the most significant issues that have vexed the military commissions while also providing for some measure of accountability” for those who were tortured, as well as long-awaited closure for families of the victims of the terrorist attacks for which the military commission defendants stand accused.
Hopefully, the senior-level attention garnered by this brief will force a deeper re-think of how to wind down the commissions with negotiated resolutions to the remaining cases.