Tortured Justice:

The Consequences

– Brigadier General James P. Cullen (U.S. Army Reserve JAG Corps, (ret.), former Chief Judge (IMA), U.S. Army Court of Criminal Appeals), interview by Human Rights First, April 12, 2007

A question of legitimacy hangs over the detention and legal proceedings at Guantánamo. Defense lawyers and human rights groups are not alone in their indictment of the military commission process. Many law enforcement and military officials are critical of the MCA's evidentiary rules. These officials know that the reliance on coerced testimony will only serve to tarnish the image of the military commission proceedings at home and in the international community, jeopardize the government's ability to secure convictions that can withstand scrutiny on appeal, and perpetuate the use of abusive interrogation techniques.

Human Rights First has interviewed a source (for convenience, assigned here a male gender) who formerly worked on detainee prosecutions at the Office of Military Commissions. The source agreed to speak to Human Rights First in part because he is deeply conflicted about the upcoming military commission trials. On the one hand, he is firmly committed to prosecuting suspected terrorists. On the other hand, he believes that such prosecutions should not be based on unreliable and illegal evidence. Our source told Human Rights First that many of the cases identified for military commission trials rely almost entirely on detainee admissions. In fact, he says that over 90 percent of the evidence collected against any given detainee is testimonial. As a result, the success or failure of the trials will hinge on the admissibility and credibility of detainee statements. The introduction of coerced statements – made either by defendants or third-party witnesses – puts successful prosecution in jeopardy.

Our source reports that military commission prosecutors investigating the detainees cannot themselves know the full extent to which testimonial evidence is tainted by abuse because intelligence personnel have withheld information about sources and the interrogation methods used. Indeed, in the wake of the 2004 Abu Ghraib scandal, military commission prosecutors were affirmatively prohibited from inquiring about the possible abuse of detainees they sought to prosecute or use as witnesses. According to our source, the explanation for this prohibition was that such inquiries might impede abuse investigations.

Our source is familiar with a 2004 memorandum, proposing standard operating procedures for commission prosecutors, which was provided to the chief military commission prosecutor. Human Rights First does not have a copy of the memorandum, but the source summarized it as follows: It noted that prosecutors had received incomplete information from military interrogators and several federal agencies, including the CIA and the Defense Intelligence Agency, regarding the capture and internment of detainees. It further stated that the CIA had failed to respond to requests for information, prosecutors had been denied access to agencies' legal opinions regarding the treatment of detainees, and detainee statements to law enforcement officials alleging abuse were incomplete.

The memorandum made the following recommendations: (1) Detainees who have been subjected to coercive interrogation methods should not be charged unless prosecutors are provided with all documents generated about the detainees, including interrogation plans and logs and classified and unclassified reports; (2) All statements of the accused should be provided to defense counsel, whether or not these statements are considered exculpatory; (3) All memoranda and any documents regarding interrogation plans should be provided to defense counsel; (4) Defense counsel should receive notice of any statements obtained by coercive means; and (5) Prosecutors should seek complete copies of all legal memoranda created by government agencies concerning interrogation techniques that have been employed.[226]

FBI personnel were primarily assigned to Guantánamo as part of the Criminal Investigation Task Force (CITF), an inter-agency operation set up to investigate individuals suspected of war crimes and terrorist acts.[227] Initially, CITF worked alongside the Army's Joint Task Force170 (JTF-170), the military intelligence unit assigned to Guantánamo.[228] But the military's abusive tactics ultimately compelled CITF officials to separate law enforcement from intelligence operations.[229]

In November 2002, FBI agents reviewed a version of JTF-170's proposed interrogation techniques and concluded that many of them were prohibited by the U.S. Constitution.[230] They also found that many of the techniques could constitute torture under U.S. law, subjecting interrogators to possible criminal prosecution. Finally, they concluded that statements extracted through these techniques would not be admissible in U.S. courts, even if they could be admitted during military commission trials.[231] (See textbox above).

On December 14, 2002, Major General Geoffrey Miller, then-commander of all Guantánamo operations, presented CITF with standard operating procedures for the use of reverse-engineered SERE techniques on detainees. CITF protested that the techniques were illegal, regardless of whether Maj. Gen. Miller or anyone else had authorized them, and prohibited its interrogators from participating in or even observing interrogations using those methods.[232] According to Colonel Brittain P. Mallow, then-CITF commander, the law enforcement community's view on the abusive interrogations authorized at Guantánamo was as follows:

No. 1, it's not going to work . No. 2, if it does work, it's not reliable. No. 3, it may not be legal, ethical or moral. No. 4, it's going to hurt you when you have to prosecute these guys. No. 5, sooner or later, all of this stuff is going to come to light, and you're going to be embarrassed.[233]

Numerous senior military officials – both active duty and retired – also contend that the use of coercive interrogation techniques has jeopardized the government's ability to proceed with prosecutions and secure convictions. In December 2002, Former Navy General Counsel Alberto Mora urged Defense Department General Counsel William Haynes "not to rely" on CITF memoranda authorizing abusive techniques as they were "almost certainly not reflective of conscious policy."[234] "The memos, and the practices they authorized," Mora recalls informing Haynes, "threatened the entire military commission process."[235]

Some law enforcement and military experts also believe that the MCA's provisions on coerced evidence will only perpetuate the use of cruel interrogation tactics. Jack Cloonan, a former FBI agent who interrogated many al Qaeda members, has said: "You cannot give an agent or an investigator an open-ended invitation to use coercive interrogation tactics to get information. .It's the slippery slope because god knows where it will end up taking you. To keep everybody on the up and up you don't allow that – you get bad information, unreliable sometimes, [and] serious consequences to the reputation of the organization and the United States."[236]

Finally, many military officials have expressed grave concerns about the perception, at home and abroad, of the upcoming military commission trials. James P. Cullen, a retired Brigadier General in the U.S. Army Reserve Judge Advocate General's Corps, states that the MCA "approach is doomed to failure because a trial conducted under such rules is fundamentally incapable of producing credible results, and tarnishes our whole justice system."[237] Brig. Gen. Cullen still believes prosecutions are the right course of action, but adds: "If we plan on trying people, as I think we should, we can only use interrogation methods that will stand up in court and will pass public muster, here and elsewhere."[238]