The Military Commissions Can’t Seem to Quit Torture Evidence

Much has been written about prosecutors’ attempts to use torture-obtained evidence in their case against Abd Al-Rahim Al-Nashiri, who is charged in the Guantanamo military commissions with offenses arising primarily out of the U.S.S. Cole bombing. One of the legal questions those attempts kicked off is whether the Military Commissions Act (MCA) prohibition on using such evidence applies at all stages of a military commission prosecution (Al-Nashiri’s view), or only during trial and sentencing in front of the military jury (prosecutors’ initial claim, with which Al-Nashiri’s trial judge, Col. Lanny J. Acosta Jr., agreed). In January 2022, the Justice Department put this issue to rest, or so it seemed, by revisiting the government’s position before the U.S. Court of Appeals for the D.C. Circuit. It explicitly adopted Al-Nashiri’s interpretation of the law and promised to act accordingly going forward.

The government did not, though, institutionalize its new position any further at that point (or since): The Justice Department successfully persuaded the D.C. Circuit to dismiss Al-Nashiri’s case as moot, leaving no binding precedent to be followed. 

Now, the problem is back at the government’s feet to fix again in a different commission case: United States v. Encep Nurjaman et al. There, both the trial judge and the Court of Military Commission Review (CMCR) decided that the parties’ agreement on the scope of the torture-obtained evidence prohibition wasn’t enough, and authorized the use of such evidence anyway—to justify charging Nurjaman and his co-defendants in the first place.  

How We Got Here

According to MCA Section 948r(a) (10 U.S.C. § 948r(a)),

No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), 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.

As I explained in a previous piece, the Al-Nashiri prosecutors “tied themselves in knots arguing that ‘in a military commission’ actually means ‘only at trial,’” and so torture-obtained statements could be used to resolve a discovery dispute (or any other interlocutory issue or preliminary question) without violating 948r(a). Judge Acosta bought their argument. Al-Nashiri petitioned the CMCR for mandamus, seeking to vacate his decision. The government then withdrew its reliance on the torture-obtained statements (but not its legal theory), which mooted the issue.

Not satisfied with that result—as it turned out, for very good reason—Al-Nashiri proceeded to the D.C. Circuit. In its opposition brief, filed Jan. 31, 2022 (and signed by both Matt Olsen, assistant attorney general for national security, and George C. Kraehe, then the military commissions’ interim chief prosecutor), the Justice Department wrote:

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.

In light of the government’s course correction, the D.C. Circuit dismissed Al-Nashiri’s mandamus as moot. Several months later, at oral argument before the commission, one of the Al-Nashiri prosecutors informed the judge he had “been instructed to read a statement to the commission on behalf of the prosecution,” which reiterated the government’s revised position. 

Fast Forward to Nurjaman

In order to try a case by military commission, the convening authority (CA), who oversees the commissions, must refer charges against the accused. According to the Manual for Military Commissions—which “provide[s] for the just determination of every proceeding relating to trial by military commission” (emphasis added)—the CA can refer charges if they “find[] … that there are reasonable grounds to believe that an offense triable by a military commission has been committed and that the accused committed it, and that the specification alleges an offense[.]”

In 2021, the CA referred charges against Encep Nurjaman, related primarily to the 2002 Bali bombings and the 2003 JW Marriott hotel attack in Jakarta. The referral was based at least in part on torture-obtained evidence, specifically, an excerpt of the 9/11 Commission Report drawn from interrogations during which Nurjaman and others were tortured. That fact is not in dispute.

Nurjaman challenged the referral, arguing that the CA violated Section 948r(a) by basing his decision in any part on torture-obtained evidence. Both the trial judge and the CMCR ruled on the issue well after the government switched its position on the scope of 948r(a), but neither considered that development significant, much less controlling.

In fact, the trial judge, Col. Hayes C. Larsen, treated the government’s original interpretation of 948r(a) as dispositive:

It is important to note that the Government position at the time of referral was that § 948r(a) applied “only to the trial and sentencing phases of a military commission and not to pretrial proceedings.” Therefore, at the time of referral, the inclusion of the 9/11 Commission Report in the referral binder was not in violation of § 948r(a). A violation of § 948r(a) can only be found if the new Government position was applied retroactively.

That conclusion is wrong as a matter of statutory interpretation—by section 948r(a)’s plain terms, “No statement” obtained by torture can be admitted “in a military commission” (save for against an accused torturer)—and it seems to confuse the roles of the judge and prosecution, by essentially treating the government’s position as the law. In any event, Judge Larsen then determined that even if relying on the 9/11 Commission Report excerpt violated 948r(a), the referral was sound because there was sufficient other evidence, not obtained through torture, to support it. (Per Carol Rosenberg, Judge Larsen is leaving the Nurjaman case and being replaced by none other than Judge Acosta).

Like Al-Nashiri, Nurjaman then petitioned the CMCR for mandamus, seeking to vacate the ruling. (My organization, the Center for Victims of Torture, joined with a group of legal scholars, former United Nations Special Rapporteurs on torture, and retired military and intelligence officers on an amicus brief supporting Nurjaman’s petition.) On June 23, 2023—the same day the UN High Commissioner for Human Rights issued his statement for International Day in Support of Victims of Torture, and just two days before President Joe Biden and Secretary of State Antony Blinken did the same—the CMCR denied the petition, reasoning in relevant part as follows:

Petitioner … has not advanced any theory—much less identified any controlling authority—for concluding that the government’s position before the D.C. Circuit in Al-Nashiri IV is the law in this case. Even if the government’s position in one case binds the government in every other commission case, it is unclear whether application of the new position to “stage[s] of the proceedings” and “pretrial phases of a military commission case” reach the referral process[.]

So, at least for the time being, it is controlling law across the military commissions not only that the government can use torture-obtained evidence in any proceeding save for at trial or sentencing but also that the foundation of a case itself can rest on such evidence. I would expect Nurjaman to again follow in Al-Nashiri’s footsteps and head to the D.C. Circuit.

In the meantime, the D.C. Circuit is mulling over the same issue in yet another, long-troubled case: Bahlul v. United States. Ali Hamza Al Bahlul, the only Guantanamo detainee convicted after trial by military commission, is serving a life sentence (at least presently) at Guantanamo. Between 2014 and 2015, the D.C. Circuit vacated all but one of his convictions. Last May, the CMCR affirmed his life sentence nonetheless. Bahlul has objected that, in doing so, the CMCR violated 948r(a) because it relied on evidence obtained from his torture and cruel, inhuman, or degrading treatment. The government, notably, never disputed or defended the use of such evidence, instead asking the D.C. Circuit to duck the issue on procedural grounds. Al Bahlul’s lawyers, though, have now filed the CMCR’s Nurjaman decision with the D.C. Circuit to demonstrate the need for the court to resolve the issue.

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Section 948r(a) is a categorical prohibition. The Justice Department knows it and has said it. The State Department knows it and has said it. It’s a good bet that the Defense Department’s Office of General Counsel had a hand in the statement Al-Nashiri’s prosecutors were “instructed to read” to the commission, reupping that view. And in the context of the UN Special Rapporteur on Counter Terrorism and Human Rights’s technical visit to the U.S.—Guantanamo included—the government reiterated its “full commitment to the prohibition of any admission of statements … obtained through torture or cruel, inhuman, or degrading treatment at all phases of a military commission.” (See paragraph 47 and footnote 126 of the Special Rapporteur’s report.)

The government needs an across-the-board solution to this problem, and fast. For example, both the Defense and Justice departments could issue policy guidance that (a) reaffirms the categorical prohibition on using torture-obtained evidence in connection with the military commissions—or any case for that matter—except against a person accused of torture and (b) requires department personnel to affirmatively object to any such use, including retroactively. The secretary of defense could amend the Manual for Military Commissions accordingly. As a matter of policy, the Justice Department should also decline to defend any referral, judgment, or sentence that might be predicated on such evidence.

I’m sure there are other ways to accomplish the same. The government just needs to pick one, follow through, and take the issue out of everyone’s hands—the military commission system’s, in particular—for good.