Tortured Justice:

Conclusion and Recommendations

Congress passed the MCA in 2006 under pressure from the Bush Administration to make accommodations for the CIA's use of harsh interrogation techniques. Rather than repudiate the CIA's methods, or even accept the inadmissibility of statements obtained through torture and other cruel treatment, the Bush Administration sought to use the commission process to legitimize the CIA's program. In so doing, it created a second tier of justice – one that threatens the successful prosecutions of those allegedly responsible for the September 11 attacks and ignores deeply-held American principles of due process.

As the military commission proceedings gather momentum in 2008, the American public and the international community will be watching. It is past time to correct the misguided embrace of torture and coercive interrogation techniques. To restore integrity to the American justice system, Human Rights First makes the following recommendations.

• The U.S. government should try terrorist suspects by court-martial or in civilian criminal courts where coerced confessions are inadmissible, the introduction of hearsay evidence is restricted to protect reliability, and the rules governing the disclosure and introduction of classified evidence are clear. Trying suspects in civilian courts or courts-martial pursuant to these fair trial standards will:
  • Restore the focus of the proceedings to the crimes committed by the accused;
  • Ensure our government's ability to secure convictions that can survive on appeal;
  • Decrease the risk of wrongful convictions based on the use of false confessions;
  • Discourage the use of torture and coercive interrogation techniques; and
  • Legitimize the proceedings in the eyes of the international community.
• In the alternative, Congress should amend the Military Commissions Act to:
  • Prohibit during criminal trials the introduction of evidence obtained through coercion or cruel, inhuman or degrading treatment;
  • Prohibit convictions based on confessions alone and require corroborating evidence of every offense charged;
  • Impose additional discovery requirements on government prosecutors, subject to the same procedures employed in U.S. courts for potentially classified evidence. Without such discovery, defense lawyers will have little basis for objecting to the introduction of coerced statements. These discovery requirements should include the classified sources, methods and activities by which statements were obtained. This information may be derived from:
  1. confinement records, investigative reports, and interrogation plans and logs revealing the abuse and/or alleged abuse of the suspect and/or government witnesses;
  2. the names and locations of all witnesses present during interrogations;
  3. access to prosecution witnesses who may have been abused; and
  • Require the government to prove the reliability and materiality of hearsay evidence it seeks to introduce.

• The U.S. government should prohibit the admission of statements extracted through torture or coercion during detention hearings. If CSRTs are upheld as constitutional, CSRT procedures should be amended to that effect.
• Congress should require the U.S. government to provide counsel to detainees at detention hearings who can identify and object to evidence that may be the product of coercion.
• Congress should restore habeas corpus rights to detainees designated as enemy combatants. Restoring habeas corpus rights will enable Article 3 judges to examine whether detention decisions have been made based on coerced evidence.

• The U.S. government should require government intelligence agents to adhere to the standards of interrogation outlined in the U.S. Army Field Manual. Forbidding the use of torture and cruel treatment will deter future abuse and reduce the likelihood of admitting false confessions or statements obtained by cruel treatment or coercion.
• Congress should require the videotaping of interrogations of terrorist suspects that are conducted away from the battlefield. Recording interrogations will permit thorough judicial review of abuse allegations, deter future abuse, and reduce the likelihood of admitting false confessions or statements obtained by cruel treatment or coercion.

Failure to take these steps now will result in precisely the situation feared by one source who formerly worked at the Office of Military Commissions: "If we fast forward 50 years from now, two things will become clear" says the source. "One, we compromised our ideals as Americans. Two, by compromising those ideals, we may have compromised our ability to bring to justice those al Qaeda operatives responsible for September 11."[242]