In U.S. v. Al-Nashiri the Government Is Rewarding Torture and Incentivizing Torturers

There has been no serious dispute for years that the Guantanamo military commissions have failed. At the heart of their failure, longtime chief defense counsel Gen. John Baker told the Senate Judiciary Committee last December, is the government’s “original sin, torture.” It “impacts and undermines every aspect of these prosecutions,” he explained. Baker specifically took aim at the government’s reliance on evidence obtained by torture: “The foundations of any guilty verdicts and capital sentences obtained in the current military commissions are thus being built on quicksand.”

To its credit—at least with respect to several of the commission cases—the Biden administration has recognized that legitimate commission trials (and likely trials at all) are a mirage. Hoping to salvage a modicum of justice, the administration is smartly pursuing plea deals.

But not in U.S. v. Al-Nashiri. There, prosecutors are recklessly forging ahead, openly embracing evidence tainted by torture in violation of federal and international law, as well as U.S. policy. Over the past 18 months alone, prosecutors have advanced baseless arguments to use against Abd Al-Rahim Al-Nashiri both his own torture-obtained statements and those of a third-party witness. At times their lawyering is reminiscent of that which authorized the CIA to torture Nashiri in the first place. Prosecutors’ positions on these issues—taken on behalf of the U.S. government—tacitly approve torture itself.

What is happening in Al-Nashiri has not gotten the attention it deserves. This post is a modest effort to shine light on the prosecutors’ actions, discuss their implications, and propose a durable solution.

The Prohibition on Torture

The prohibition on torture is black letter domestic law and among the few peremptory norms of international law—a fundamental principle accepted by the international community as a whole and from which no state may derogate. It applies everywhere and always, without exception. “Among the rights universally proclaimed by all nations,” U.S. federal courts have explained, “is the right to be free of physical torture. Indeed ... the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind.”

With the goal of “mak[ing] more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment [(CIDT)] throughout the world,” 173 states, the U.S. included, have signed and ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). CAT imposes a number of mutually reinforcing obligations on states party, including to prevent acts of torture; investigate, prosecute, and punish its perpetrators; refuse to send a person to a place where he or she would be at risk of being tortured; and, critically, prohibit the use of statements tainted by torture. Not only does CAT’s exclusionary rule protect the right to a fair trial and the principle of judicial integrity, it also functions as a deterrent: If would-be torturers know that information their heinous acts produce can be used only against them (the rule’s sole exception), they may be less likely to torture.

U.S. v. Al-Nashiri: A Brief History

Nashiri was captured in October 2002 and tortured extensively for more than three years while in CIA custody—most infamously at a Thai black site that former CIA Director Gina Haspel once oversaw, and on videotapes that she later helped destroy. In 2006, he was transferred to Guantanamo, where he remains. In 2011, Nashiri was charged, under the revised Military Commissions Act, with a series of offenses arising out of attacks on two ships—the USS Cole and the MV Limburg—as well as an attempted attack on a third ship, USS The Sullivans.

Much has already been written about the train wreck that is Nashiri’s commission prosecution. The case’s history includes the U.S. Court of Appeals for the D.C. Circuit throwing out three-and-a-half years’ worth of pretrial rulings because the presiding judge was pursuing a Justice Department job at the same time. It also includes the government secretly monitoring Nashiri’s attorney-client communications, which led his civilian counsel to resign on the advice of outside ethics experts, and with Baker’s permission. When Baker refused to testify about privileged discussions leading up to counsel’s withdrawal, the commission judge held him in contempt and sentenced him to 21 days’ confinement and a fine. A federal judge subsequently overturned the conviction. Another ethical issue came to a head in late July, a potential conflict of interest arising out of lead defense counsel’s representation of a former detainee, which may result in the entire defense team having to withdraw. Most recently, President Biden’s Aug. 1 announcement that Ayman al-Zawahri, who the U.S. killed in a drone strike, was “the mastermind” behind the Cole bombing—a role long attributed to Nashiri—raised fresh questions (and prompted immediate discovery requests) about whether the government has potentially mitigating evidence it has not yet turned over to the defense.

And then there is the “original sin”—torture hovers like a storm cloud over the entire case. Its impact on admissibility of the government’s evidence is among a set of fundamental legal questions that the military commissions still have not resolved.

Prosecutors’ Efforts to Use Nashiri’s Own Torture-Obtained Statements During Discovery

In March 2021, prosecutors filed a classified pleading generated in connection with its searches for potential exculpatory evidence. They included in that pleading several statements Nashiri made while being tortured at a CIA black site. Nashiri objected, citing Military Commissions Act (MCA) Section 948r(a):

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. 

Notwithstanding the statute’s plain terms, prosecutors tied themselves in knots arguing that “in a military commission” actually means “only at trial,” and so torture-obtained statements are admissible for the purpose of resolving interlocutory disputes or preliminary questions. (A group that comprises scholars, former U.N. special rapporteurs on torture, retired military and intelligence officers, and human rights advocates walk through that argument’s obvious flaws here, as does Nashiri’s counsel in his mandamus petition below.) Indeed, the State Department—with input from all relevant government agencies, the Department of Defense and the Department of Justice included—has repeatedly assured the monitoring body for CAT that Section 948r(a) makes no such distinction.

In an astonishing decision, the military judge, Army Col. Lanny Acosta, Jr., agreed with the prosecutors and denied Nashiri’s motion to strike the relevant sentences in the government’s filing. Nashiri petitioned the Court of Military Commission Review (CMCR) for mandamus, seeking to vacate Acosta’s decision. The government responded by withdrawing its reliance on the torture-obtained statements (but not its legal theory), which the CMCR determined effectively mooted the issue. Concerned that the precedent allowing torture evidence had been set and was law of the case, Nashiri turned to the D.C. Circuit, a move that put the Justice Department squarely on the hook for the commission prosecutors’ actions. 

The Justice Department quickly reversed course, explaining in its opposition brief that the administration had reconsidered its position and agrees with Nashiri that Section 948r(a)’s bar on using torture-obtained statements applies throughout a military commission case. The department went a step further and promised more broadly that the government would “not seek admission, at any stage of the proceedings, of any of petitioner’s statements while he was in CIA custody.”

The government did not, however, take any additional step to institutionalize that interpretation and promise, either before the D.C. Circuit or as a policy matter.

Prosecutors’ Efforts to Use Ahmed Al-Darbi’s Statements Against Nashiri

While the above issue was being litigated before the D.C. Circuit, the prosecution pursued a separate effort to use torture-obtained statements from third-party witness Ahmed Al-Darbi, for the purpose of tying Nashiri to the MV Limburg bombing.

Azerbaijani authorities took Darbi into custody in 2002, then turned him over to U.S. officials, who brought him to Bagram Air Force Base in Afghanistan. He spent eight months in a secret detention facility there—one where several detainees were tortured to death—before his transfer to Guantanamo. Between August and October 2002, both the military and the FBI interrogated Darbi at Bagram. Federal agents interrogated him again in 2007 at Guantanamo.

In 2014, Darbi pleaded guilty in the military commissions to a series of offenses, most related to the MV Limburg attack. As part of his plea he agreed to delay sentencing and, in the interim, to cooperate with prosecutors in cases against other detainees. Three years later, shortly before his transfer to Saudi Arabia, Darbi provided deposition testimony for use against Nashiri if the Cole case ever reached trial.

In 2015, Nashiri moved to suppress Darbi’s 2002 and 2007 statements, as well as any future testimony he might provide (which now includes his 2017 deposition testimony), on the ground that all of it is tainted by torture. The prosecution opposed but, as to the 2002 statements, argued the issue was moot because the government “will not affirmatively offer—during any stage of the accused’s case—the contents of any statements that Al-Darbi made to law-enforcement agents in 2002.” The prosecution made that promise five separate times in its brief. In October 2020, prosecutors broke those promises, telling the commission that if Darbi was unavailable to testify, and Judge Acosta excluded his 2017 deposition, the prosecution would, in fact, seek to admit Darbi’s 2002 statements to the FBI.

The April 2022 Suppression Hearing

These issues were the subject of an additional motion in early 2022, but the related filings are not available on the commission’s website. Acosta held a hearing on April 28 and 29 of this year, focused mainly on whether to admit or exclude the 2002 statements. (Ironically, this was one week prior to oral argument at the D.C. Circuit in connection with Nashiri’s challenge to the government’s attempts to use his own torture-obtained statements.) Three witnesses testified at the hearing: army interrogator Damien Corsetti, and FBI special agents Robert Fuller and Gerald Roberts—all of whom interrogated Darbi at Bagram.

The hearing offered a visceral factual account of Darbi’s torture. 

According to Corsetti, when Darbi arrived at Bagram, he was hooded, shackled, stripped naked, and menaced by dogs. When he was not being interrogated, he was confined to a chain-link holding pen, with dozens of other detainees (all forbidden from speaking), on a 3 feet by 5 feet blanket from which he was not allowed to move. Corsetti testified to subjecting Darbi to the following abuses, in various combinations, on 20 to 30 occasions during a six-week period beginning approximately Aug. 1, 2002:

• A process called “monstering,” which involved 72 hours of constant interrogations, during which several of the methods described below were used.
• A week of sleep deprivation and isolation.
• Several “stress positions,” including forcing Darbi to kneel for hours on a concrete floor, with his hands shackled above his head, immediately next to a “super hot” halogen lamp and wearing a hood saturated with water (to create humidity that would make breathing difficult); or to lean head first against a wall, at a 45-degree angle, with hands shackled behind his back, so that all of his body weight was resting on his forehead.
• A method Corsetti and other interrogators developed and named “casual cruelty,” whereby Corsetti would place Darbi in one of the above-described positions—or another where Darbi would serve as Corsetti’s “stool”—sit next to him, read a book, and smoke, using Darbi’s shirt pocket as an ashtray. 
• Constant screaming and breaking furniture.
• Forcing Darbi to clean up, using two squares of cardboard and his bare hands, 30 gallons of feces, urine, and diesel fuel that had spilled onto the facility floor while Corsetti watched and laughed.

In a sworn declaration attached to Nashiri’s 2015 reply brief, Darbi corroborated these same abuses and more, for which Corsetti was court-martialed. The government does not dispute them and, in fact, characterized them as CIDT during Corsetti’s court-martial. Information Darbi provided to Corsetti and fellow military interrogators was documented in a military intelligence file.

Fuller and Roberts testified that they arrived at Bagram in mid-August 2002, spoke with Darbi’s military interrogators, and reviewed the military intelligence file. They then interrogated Darbi—using report-building techniques—on 13 separate occasions, lasting six to 10 hours each, between Aug. 24 and Oct. 17, 2002. At least 10 of these sessions were during the same six-week period when Corsetti was torturing Darbi. Between them, Fuller and Roberts testified that the file “provided a great baseline” for their interrogations; that they “essentially took the information from the [file] and … those were the major points for our interviews throughout.” A “representative from another [Defense Department] agency” was present for most of the FBI interrogations, and at times would feed Fuller and Roberts questions to ask Darbi.

Largely on the basis of this testimony, prosecutors advanced two alternative justifications for using Darbi’s Bagram statements to the FBI. First, they argued that Darbi was not tortured. Second, they maintained that even if he was tortured, those statements are admissible under Military Commission Rule of Evidence (MCRE) 304(a)(5), which in limited circumstances permits the use of evidence “derived from” statements obtained by torture.

Judge Acosta’s Ruling

On June 30, Judge Acosta rejected both of the prosecution’s arguments and ruled that Darbi’s 2002 statements to the FBI are inadmissible (ruling below). He did not suppress the subsequent statements from 2007 and beyond but signaled that he may still do so on other grounds in the context of a related pending motion.

Darbi Was Subjected to Torture and/or CIDT

Acosta spent the first six substantive pages of his opinion detailing the abuses summarized above. He then walked through domestic law prohibiting the use of torture-obtained evidence—from Supreme Court precedent, to the Detainee Treatment Act, to Section 948r(a) and its MCRE companion (rule 304(a)(1)), to related prohibitions in the version of the Army Field Manual (AFM) that governed interrogations at the time. He also reiterated the applicable definitions of torture and CIDT.

In a single paragraph, Acosta summarily dismissed (by reference to the Merriam-Webster dictionary) the prosecutors’ claim that “torment is not torture” and dispensed with the idea that “monstering techniques were in line with the [AFM].”

“The Commission has little difficulty reaching the conclusion that the treatment of Al Darbi in August 2002, as detailed in the testimony of Mr. Corsetti and in Al Darbi’s written declaration, can best be described as either torture or cruel, inhuman, or degrading treatment,” he ruled.

Acosta did not discuss any further the government’s arguments to deny that Darbi was tortured. That was the right decision insofar as rejecting them required no additional treatment. However, several of the arguments bear brief mention to demonstrate the lengths to which the prosecution will go to defend or downplay torture.

First, prosecutors maintained that Darbi could not have experienced severe physical pain and suffering because Corsetti did not strike, kick, or otherwise touch him. That claim contradicts both Corsetti’s testimony (he admitted to using Darbi as a “stool”) and Darbi’s declaration (he stated that Corsetti kneeled on his chest until Darbi thought he was “going to die”). It also ignores that Darbi swore to having been kicked, dragged, and slammed against a wall by U.S. personnel, and that Corsetti and his fellow interrogators “tried [the stress positions they developed] out on ourselves just to know, out of professional curiosity, what is the most effective technique” and found that they “were extremely painful after about five minutes.”

Second, prosecutors argued that Corsetti and his colleagues did not engage in any conduct that could cause or result in “severe mental pain and suffering.” They took that position while simultaneously conceding the abuses Darbi suffered, all of which, in Corsetti’s words, were designed to (and if fact did) “break him.”

Third, prosecutors claimed that Darbi could not have been seriously harmed because, according to their testimony, he seemed physically and mentally fine to the FBI agents. Obviously neither Fuller nor Roberts was in a position to adequately assess the effects of Darbi’s treatment; forensic evaluation of torture survivors is the province of specially trained medical and mental health experts, not law enforcement. Indeed, in his declaration, Darbi disclosed experiencing precisely the kind of profound psychological harm that torture often produces:

To this day, I frequently feel anxious, depressed and worried. I feel not quite right, not quite like myself. I have recurring nightmares of the U.S. guards and interrogators from Bagram chasing me. Whenever anybody wakes me, I wake up screaming in shock and panic. I have headaches. I feel that I am emotionally unstable, and I know that I go through personality changes and mood swings, which were not typical for me before I came into U.S. custody. Sometimes I lose physical control. 

Darbi’s 2002 Statements to the FBI Were Obtained by Torture

According to the prosecution, even if Darbi was tortured, his 2002 statements to the FBI are “derivative evidence,” which they claimed Section 948r(a) does not address, and MCRE 304(a)(5) would permit:

Evidence derived from a statement that would be excluded under section (a)(1) of this rule [because it was obtained by the use of torture or CIDT] may not be received in evidence against an accused who made the statement if the accused makes a timely motion to suppress or an objection, unless the military judge determines by a preponderance of the evidence that— 

(i) the evidence would have been obtained even if the statement had not been made; or 

(ii) use of such evidence would otherwise be consistent with the interests of justice.

Prosecutors’ argument was threefold: Section 948r(a) is silent on derivative evidence, so rule 304(a)(5) governs; because the rule refers specifically to “an accused who made the statements,” it does not apply to a third-party witness’s torture-obtained statements; and, even if it did, Darbi’s statements to the FBI satisfy the rule’s exceptions.

Acosta did not specifically address any of those claims. Rather, he found the derivative evidence argument so unpersuasive that he did not once use that term when discussing Darbi’s 2002 statements to the FBI, notwithstanding devoting more than half of his opinion to a section titled “Derivative Evidence.” He simply excluded the statements because they were obtained by torture.

As with his treatment of the prosecution’s position that Darbi was not tortured, Acosta’s brevity was appropriate but also risks masking just how far prosecutors are trying to reach.

The term “derivative evidence” is typically used to describe physical evidence or people that the government discovers as a result of illegal conduct. For example, while being coerced by police, an accused or a third party discloses the location of a safe house, from which police then recover a weapon. It can also apply to statements, such as when a defendant confesses subsequent to an unlawful arrest.

To the extent that there are scenarios in which a defendant or witness provides multiple sets of statements and those later-in-time could properly be considered derivative evidence, Darbi’s 2002 statements to the FBI is clearly not one of them. He gave those statements while detained in a facility notorious for torture, during a six-week period of continuous torture, in response to questions built directly on information elicited during those torture sessions, and in the very same rooms where he was tortured.

Prosecutors’ arguments that Section 948r(a) and MCRE 304(a)(1) are limited to statements a victim makes literally at the moment perpetrators are torturing him, and that a defendant does not have standing to challenge third-party derivative statements in any event, would not pass the sniff test in federal court. With regard to the former, the Fifth Amendment’s Due Process Clause requires a “clean break” between a victim’s statements and the effects of their torture, in order to ensure that the statements are truly voluntary—a product of free choice. (This is sometimes referred to as “attenuation” analysis.) As to the latter, Nashiri has a constitutional right to a fair trial and would very much have standing to allege that right was violated if some of the evidence used to convict him was tainted by torture.

Such arguments are especially dangerous in the commissions, not only because the extent to which constitutional protections apply remains unclear but also because MCRE 304(a)(5) is transparently permissive. Specifically, the rule allows a commission to admit evidence derived from torture (notwithstanding that torture produces inherently unreliable information) as long the judge finds that “use of such evidence would otherwise be consistent with the interests of justice.” By contrast, when evaluating evidence derived from other excludable statements—that is, where the rights violation is something short of torture—the same rule requires the judge also to find that the evidence is “reliable and possessing sufficient probative value.”

Perhaps recognizing the sweeping implications of pairing prosecutors’ erroneous views of what constitutes derivative evidence, and who can challenge it, with the rule’s lax standard, senior administration officials appear to have stepped in. At a commission hearing on May 4, one of the prosecutors abruptly requested permission “to read a statement to the commission,” which he had “been instructed” to do. He continued:

The prosecution is clarifying statements made on Friday April 29th … that suggested that 948r(a) only barred from admission in a military commission a statement obtained from the torture, cruel, inhuman or degrading treatment of the accused in a military commission. To the extent that those statements could be interpreted to support an interpretation that derivative evidence is categorically not subject to 948r, those statements are not reflective of the government’s view. 

However well-intentioned that statement may have been, it had no practical impact on the most pressing concern. Prosecutors could have taken any number of steps to back off the derivative evidence arguments they made with respect to Darbi’s 2002 statements—which would remain pending before Acosta for another seven weeks—but they did not.

Frustrated by the administration’s failure to take a clear position on torture-derived evidence, Sens. Richard Durban, D-Ill., and Patrick Leahy, D-Vt., wrote to the Defense Department, the Justice Department, and the State Department the following week asking for additional clarification. The departments’ July 18 response, sent several weeks after Acosta issued his opinion, did not go nearly far enough:

The government has committed not to seek admission of statements within the scope of 10 U.S.C. § 948r(a) [regardless of whether the defendant or another person made the statements] at any stage of a military commission proceeding against any party. …

The military commission has not yet resolved whether or how Section 948r(a) applies to derivative evidence, nor has it determined how doctrines such as attenuation and independent source apply in this context. These questions are the subject of pending litigation, and the government will articulate its position in future filings as appropriate.

Implications for the Biden Administration

The arguments that prosecutors are advancing in Al-Nashiri undermine both the rule of law and the United States’ moral legitimacy. They also damage President Biden’s credibility: Twice since taking office, the president has publicly affirmed the United States’ “unequivocal” commitment to the prohibition of torture. Last year, he “pledge[d] the full efforts of the United States to eradicate torture in all its forms.”

Because the torture-evidence issue is playing out in often technical litigation, it can be easy to miss the forest for the trees. Sens. Durbin and Leahy’s reaction to the administration’s wait-and-see approach on derivative evidence, drafted against the backdrop of all that has happened in Al-Nashiri, properly cuts to the chase: “This is not a difficult question: Are we going to stand on principle and repudiate unequivocally the use of torture, or are we going to tie ourselves in legal knots to justify the use of evidence derived from the torture of human beings? It’s clear what the answer should be.”

Both Defense Secretary Lloyd Austin and Attorney General Merrick Garland should issue department-wide guidance making clear that where there are credible allegations of torture or CIDT arising out of post-9/11 U.S. counterterrorism operations, their department’s personnel cannot use evidence tainted by such torture or CIDT in any judicial or administrative proceeding. The policy should explicitly prohibit using:

1) any statements made by a person in U.S. or foreign government custody or control in connection with the CIA’s rendition, detention and interrogation program; 

2) any other statements credibly alleged to have been obtained by torture or CIDT —regardless of which government agency was responsible—including those made while the victim was suffering physical or psychological effects of such torture or CIDT; and 

3) any evidence derived from statements covered by the first two categories. 

The policy should not turn on, or even consider, whether military commission rules or military commission judges might be more tolerant of torture and the information it produced.

Bush administration officials were deliberate, painstaking, and comprehensive in authorizing and perpetrating post-9/11 torture. Biden administration officials need to be equally deliberate, painstaking, and comprehensive in rejecting evidence that torture taints, and in upholding the prohibition on torture more broadly.