DOJ Changes Stance on Using Evidence Obtained at CIA Black Sites

A guard tower stands at the entrance of the U.S. prison at Guantanamo Bay, also known as "Gitmo", at the U.S. Naval Station at Guantanamo Bay, Cuba, on Oct. 23, 2016. (John Moore/Getty Images)

Department of Justice (DOJ) attorneys said in court filings on Jan. 31 that evidence extracted by torture is not admissible in military tribunals, reversing a posture that had worried civil libertarians and human rights activists.

The DOJ revealed its stance on torture-derived evidence in filings related to the matter of Abd Al-Rahim Hussein Al-Nashiri, the alleged terrorist mastermind of the 2000 U.S.S. Cole bombing that killed 17 U.S. Navy sailors and injured 37 others. Al-Nashiri has been detained Guantanamo Bay and other military facilities since 2002, while awaiting trial on terrorism charges.

Though Al-Nashiri has been in U.S. custody for two decades, his case is still in the discovery process—as are the proceedings of numerous other Guantanamo Bay inmates. The reasons for the delays are complex and unique to each case, but generally boil down to the government not wanting to disclose information about its 9/11-era detention and interrogation programs, which has prevented defense teams from reviewing all of the necessary evidence.

During discovery proceedings in Al-Nashiri’s case last March, prosecutors had sought to use statements he made while being detained at CIA black sites. The statements Al-Nashiri made there are redacted from court records.

Al-Nashiri filed a motion that month to strike the statements elicited in the black sites, but prosecutors filed a response in opposition. Prosecutors agreed that any torture-induced words from Al-Nashiri couldn’t be admissible for a trial, but they argued that the statements could still be used during discovery proceedings.

Military judge Lanny Acosta sided with the prosecution last May, prompting Al-Nashiri to appeal to the U.S. Court of Appeals for the District of Columbia Circuit.

In his partially redacted October 2021 petition, Al-Nashiri recounted the brutal treatment he encountered at Guantanamo Bay and at CIA black sites in Thailand, Poland, and Romania.

“Detainees were subjected to loud continuous noise, isolation, and dietary manipulation on the alternating schedule of one meal on one day and two meals the next day. They were kept naked, shackled to the wall, and given buckets for their waste,” his petition to appeal said.

“Sleep deprivation of detainees was achieved by shackling their wrists to a bar on the ceiling, forcing them to stand with their arms above their heads. In a rare instance of record-keeping, on one occasion [Al-Nashiri] was forced to keep his hands on the wall and not given food for three days.”

Al-Nashiri asked the DC appeals court to issue a writ of mandamus and prohibition on the government from using any torture-derived evidence in military commission proceedings.

“Petitioner’s entitlement to relief is clear and indisputable because the use of torture and its fruits in any judicial proceedings is categorically prohibited by statute, under the Constitution, and as a norm of international law,” the petition said.

Al-Nashiri’s petition was supported by human rights advocates. King’s College law professors Philippa Webb and Rosana Garciandia filed an amicus brief last November, arguing that the use of evidence from torture is a violation of international, regional, and local legal norms.

The Center for Victims of Torture (CVT) also filed an amicus brief, making similar arguments.

“Unless this Court grants the Petition, the military commission judge’s ruling may encourage the use of torture-derived evidence, with grave consequences,” CVT said.

Before the DC appeals court had a chance to decide on the petition, the DOJ changed its position. In their Jan. 31 brief to the court, prosecutors acknowledged their prior position that prohibitions on using torture-induced evidence only applied to the trial and sentencing phases of military proceedings—and not during pretrial proceedings.

“Since that filing, the government has reconsidered its interpretation of [the law] and, as a result of that review, has concluded that [prohibitions on using torture-derived evidence] applies to all stages of a military commission case, including pretrial proceedings,” the Jan. 31 brief said.

“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.”

Prosecutors also asked the DC court to vacate Al-Nashiri’s petition, which sought to overturn all orders that were predicated on torture-derived evidence.

“The government has no intention of relying on [torture-derived evidence] at any stage of petitioner’s military commission proceedings,” the brief said. “In these circumstances, any intervention by this Court, especially through writ of mandamus, would be inappropriate.”

Al-Nashiri has yet to respond to the DOJ’s brief.