A Useful Argument at the Intersection of Two Military Commissions Cases

The ongoing military commissions at Guantanamo Bay lurched out of obscurity and grabbed headlines this summer when Secretary of Defense Lloyd Austin revoked a proposed plea deal in the 9/11 cases. Revelation about the deal itself and then its sudden scotching focused attention back onto the makeshift court. 

But there are other notable issues in other active cases at the commissions. One of these is an ongoing dispute related to the use of hearsay evidence in the case of Abd al-Rahim Al-Nashiri, the alleged mastermind of the 2000 bombing of the USS Cole. The issue is technical but important. It has to do with a statutory change that the defense could have used to respond to a weak argument the government is making in favor of the admission of key hearsay evidence in the case. 

To understand the issue, you have to go back to a different prosecution in the long, tangled history of the military commissions. You might remember the name Salim Ahmed Hamdan, which remains in the American consciousness as the eponymous subject of the landmark Supreme Court case Hamdan v. Rumsfeld, wherein the Court found that the initial military commissions system created by the Bush administration had not been authorized by Congress and that Hamdan’s trial thus violated ordinary U.S. laws and the laws of war. Some may remember him as the detainee who was famously acquitted of his conviction by the U.S.  Court of Appeals for the D.C. Circuit—after he had already served time. 

Hamdan comes up now in the case of Abd al-Rahim al-Nashiri because the U.S. government wants to use summaries of statements that Hamdan allegedly gave to investigators in 2002, in which he said that he saw Nashiri testing explosives in Kandahar, Afghanistan, before the USS Cole bombing. The government first gave notice of its intent to use this testimony to Nashiri’s defense team back in 2013. In 2022, the defense challenged the effort with a motion to suppress this material.

More than two decades after the statements at issue were allegedly made, a military commissions judge heard oral argument on the motion to suppress during pretrial proceedings in April of this year. The judge has not yet ruled on the motion. 

The first Hamdan statement the government wants to use against Nashiri comes from a series of interviews conducted by FBI Special Agents Ammar Barghouty, George Crouch, and Ali Soufan at Guantanamo Bay between June 26, 2002, and July 9, 2002. The material is not a direct statement from Hamdan; rather, it is contained in an FBI 302, a nonverbatim account of what the interview subject said, prepared by the agent who conducted the interview. The second statement comes from an interview that Special Agent Soufan conducted at Guantanamo Bay in August 2002, also memorialized in an FBI 302.

In resisting the use of this material, the defense got a big assist from Congress when lawmakers passed the 2009 Military Commissions Act (MCA), in which Congress made it harder to admit custodial statements by elevating the standard for their admissibility. This change is worth emphasizing, but the defense has not done so in arguing for the suppression of Hamdan’s statements against Nashiri.

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Both sides agree that the summaries of the statements contain information critical to Nashiri’s case. During oral argument, Nashiri’s defense described the 302s as “contain[ing] multiple inculpatory statements [Hamdan] attributes to Mr. al Nashiri,” and “observations of Mr. al Nashiri using explosives at some point.” The defense also stated that the summaries “potentially tie Mr. al Nashiri into the conspiracy as early as 1996,” for which Nashiri is charged under 10 U.S.C. § 950t(29), the military commissions conspiracy law. This charge carries with it the possibility of capital punishment, which Nashiri is facing.

The rules for admitting hearsay evidence at military commissions trials are unsurprisingly laxer than the rules that apply in normal criminal trials. Hearsay must meet the requirements under M.C.R.E. 304 (a)(3)—a rule of the military commissions that allows “[s]tatements from persons other than the accused allegedly produced by coercion” under three conditions. Those conditions are (a) that the military judge needs to be convinced that the statement is reliable and has sufficient probative value; (b) that the interests of justice would be served by admitting the hearsay statement; and (c) that the statement was not obtained through torture, or through cruel, inhuman, degrading treatment as defined by the Detainee Treatment Act, codified at 42 U.S.C. § 2000dd(d). 

Another statute, 10 U.S.C. § 948r(a), prohibits the introduction of any statement that does not meet this third prong. It is under this law, and under the Due Process Clause of the Fifth Amendment of the Constitution, that the defense moved to prevent the government from using Hamdan’s statements in its case against Nashiri. 

The government’s October 2022 motion (AE481K) defending its use of Hamdan’s alleged statements is still unavailable for viewing on the Military Commissions’ website. But at oral argument on April 4, Lt. Col. James Garrett told Military Judge Col. Matthew S. Fitzgerald, who took over the case in November 2023, that the statements meet the three conditions. Garrett argued that Hamdan was not subjected to “torture, cruel, inhuman, or degrading treatment,” either while he was in U.S. custody overseas or after he was moved to Guantanamo, and that the defense needs to credibly show that Hamdan was subjected to this treatment to get the statements suppressed. 

Garrett pointed to testimony that the Nashiri military commission previously heard from Lt. Col. (Ret.) Hank Smith, Special Agent Soufan, Special Agent Crouch, Special Agent Barghouty, Anthony Cardon, and Mark Fallon to counter the claim that Hamdan’s statements were a result of torture. According to Garrett, Smith—who was responsible for Hamdan’s safety—testified that he was a part of a group that took orders from Central Command, not from the separate forces at Guantanamo, and that Hamdan was not subjected to “abuse” while in his custody. Garrett said that agents Soufan, Crouch, and Barghouty “did not coerce Mr. Hamdan in any fashion,” and that the military judge should look to the government’s written brief and ancillary materials to support the contention that “[t]here’s no evidence that Hamdan’s prior time in custody influenced Hamdan’s later cooperation with Agents Barghouty, Crouch, and Soufan.” According to Garrett, Fallon testified that enhanced interrogations did not begin until November 2002, after the alleged statements in question had already been given.

Garrett asserted during oral argument that Nashiri’s defense “failed at every turn” to link Hamdan’s treatment to torture. He characterized Hamdan’s statements as having been derived from “traditional rapport-based interview techniques.” Garrett made these arguments to support the government’s position that the statements in question satisfy the relevant standard under M.C.R.E. 304 (a)(3)(C) and 10 U.S.C. § 948r(a)—that the statement was not obtained through torture or cruel, inhuman, or degrading treatment.

To reinforce its position that Hamdan had not been tortured and that his alleged statements are thus not tainted by torture, the government pointed to the fact that the same statements were admitted during Hamdan’s own trial and used against him back then.

The underlying backstory here—though the government didn’t get into it during oral argument—is that Hamdan’s defense team had moved to suppress statements that he allegedly made under U.S. custody for Hamdan’s trial in April 2008 on the basis that they had been obtained through coercive investigation techniques and thus had no probative value. The military judge in Hamdan’s case granted some parts of the suppression motion (suppressing other statements Hamdan allegedly gave while in Afghanistan, for instance). But the judge ruled against the suppression of statements that Hamdan is alleged to have given while in custody at Guantanamo—which include the statements resurfacing in Nashiri’s case. As part of his decision, Judge Keith J. Allred resolved allegations of coercion at Guantanamo (to the extent that the suppression motion raised them) against Hamdan. He found that Hamdan was “exposed to a variety of coercive influences” while he was in U.S. custody over the seven years leading up to the suppression motion, but that this did not affect his alleged statements to investigators. 

“The Commission is convinced,” wrote Judge Allred, “by a preponderance of the evidence, that no coercive techniques influenced the making of any of the accused’s statements in Kandahar or Guantanamo Bay.” (Allred also considered the “coercive effect” that prolonged detention may have had on Hamdan’s alleged statements but dismissed that concern as well.) 

Given that this happened in Hamdan’s trial, it would be “draconian,” Garrett told Judge Fitzgerald, for the court to exclude these statements in Nashiri’s case. If Hamdan’s statements were permitted in the government’s case against Hamdan, why shouldn’t they be allowed in the case against Nashiri? 

That argument might make sense if the relevant legal standard hadn’t changed since Hamdan’s case. But it has changed. Indeed, Garrett’s rhetorical question glosses over a critical difference between the evidentiary standards that governed the introduction of statements during Hamdan’s own trial and those that currently govern Nashiri’s. But Nashiri’s defense did not bring the change and its importance to the court’s attention during oral argument. 

This important change took place in the 2009 MCA. The 2009 MCA removed the 2006 MCA’s distinction between custodial statements obtained before and after the passage of the Detainee Treatment Act (DTA) in December 2005.

Section 948r(b) of the 2006 MCA contained a categorical prohibition on statements obtained through torture (unless the statements were being used as evidence against a person who had been accused of torture). In Section 948r(d), Congress created a separate provision that applied only to statements obtained on the day or after the DTA was passed. Those statements were admissible only if they did not result from actions that amounted to “cruel, inhuman, or degrading treatment” as defined by the DTA. The prohibition on statements obtained through torture, in contrast, applied to statements no matter when they were made.

By 2009, Congress had come to think differently of the matter. That year’s Military Commissions Act removed the timing element with regard to “cruel, inhuman, or degrading treatment,” and merged the standards for custodial statements described above into one section under Section 948r(a), prohibiting the use of statements obtained through “torture or by cruel, inhuman, or degrading treatment” (emphasis added). (The 2009 MCA also added a new requirement that custodial statements of the accused be given “voluntarily.” This does not affect the admissibility of Hamdan’s statements in Nashiri’s case because Hamdan is not the accused. But it might weaken the government’s argument that the admission of the statements during Hamdan’s trial should weigh heavily in favor of the admission of the statements now.)

This change to the MCA makes the defense’s task to suppress Hamdan’s statements easier. One part of the government’s argument for permitting the statements to enter into evidence against Nashiri is that they came in during Hamdan’s trial: If then, why not now? The answer is that the different standards in the new MCA materially altered the threshold for admissibility by requiring the exclusion of a larger category of statements. Back at the time of Hamdan’s trial, it was enough for the prosecution to establish that the statements were not the result of torture. Under current law, the statements are inadmissible if the defense can show that they resulted from torture or other cruel, inhuman, or degrading treatment. 

The defense, in arguing for suppression in Nashiri’s case, did not explicitly reference this change to the Military Commissions Act either in its motion to suppress or during oral argument over this motion. And while it broadly discussed the change during argument on a separate motion—a motion to suppress all alleged statements from co-conspirators, one of whom is Hamdan—it made no explicit mention of the matter in the specific motion relating only to Hamdan’s statements, where the MCA’s change is more directly implicated.

As noted above, the defense relied on 10 U.S.C. § 948r(a)—which makes inadmissible statements “obtained by the use of torture or by cruel, inhuman, or degrading treatment … whether or not under color of law” unless that statement is being used as evidence against someone who is accused of torture. The defense notes in its motion that the government has conceded that 10 U.S.C. § 948r(a) applies to third-party statements, making the statute applicable to the statements allegedly made by Hamdan. 

The defense got tantalizingly close to making the argument. It contended that because Hamdan was subject to “torture or cruel, inhuman, or degrading treatment,” and because the statements attributed to Hamdan that the government seeks to bring in were not sufficiently attenuated from his prior abuse (among other reasons the defense cites that we do not examine here), the commission should suppress the statements. According to the defense’s motion, the prosecution bears the burden of proving—under a preponderance of the evidence standard—the admissibility of Hamdan’s statements. But even though the defense several times quoted the new relevant standard under the updated MCA—which includes “cruel, inhuman, or degrading” treatment, rather than just torture—it did not point to Congress’s change in the standard. And it did not argue that the change in the law answers Garrett’s question about why the material might be admissible against Hamdan but not against Nashiri.

There’s an important caveat here. The 2008 ruling in Hamdan’s case has no concrete legal meaning for the current evidentiary dispute in Nashiri’s case. These are two separate commissions and two separate motions series. However, the government is still trying to use the fact that the judge in Hamdan’s case admitted the evidence at issue here in 2008 as support for its argument that the judge should admit the evidence in Nashiri’s case. Therefore, it matters how the defense responds to this argument.

Lawyers must make hard choices about which arguments to employ on behalf of their clients and which arguments to leave out. That Nashiri’s lawyers left the Military Commissions Act change on the table is not necessarily wrong. But discussing this change to the statute could have given the judge a clear-cut reason to deny the government’s attempted resurrection of Hamdan’s hearsay in Nashiri’s case. It may have been an opportunity for Nashiri’s defense to have affirmatively leveraged Congress’s attempts to make torture-tainted evidence harder to use at the commissions.