Tortured Justice:

Introduction

- Former Secretary of State Colin Powell (General, U.S. Army, Ret., and former Chairman, Joint Chiefs of Staff), Reuters, June 10, 2007

- Representative Artur Davis (D-AL), House Judiciary Subcommittee Hearing on the Justice Department's Office of Legal Counsel, February 14, 2008, responding to Assistant Attorney General Steven Bradbury's description of the CIA's interrogation program

For years, the Bush Administration justified its reliance on military commissions as a means of expediting the prosecution of terrorist suspects. "As soon as Congress acts to authorize the military commissions I have proposed," said President George W. Bush in September 2006, "the men our intelligence officials believe orchestrated the deaths of nearly 3,000 Americans on September the 11th 2001, can face justice."[1] In fact, just the opposite has occurred. More than six years after the first men were brought to Guantánamo Bay, prosecutors have sought charges against just fifteen men and convicted only one.

Challenges to the lawfulness of the system itself caused much of the initial delay. In 2006, the U.S. Supreme Court struck down the first military commission system, created by the Bush Administration, on the grounds that it violated military law and the Geneva Conventions. The administration's approval of secret detention and torture and other cruel interrogation techniques have posed additional obstacles to prosecution. Its use of military commissions to accommodate abusive interrogation methods only guarantees more protracted legal battles, and ultimately threatens the nation's ability to achieve justice for the victims and families of September 11.

The administration claims that the Central Intelligence Agency (CIA)'s "enhanced" interrogation program is necessary to protect the nation from another terrorist attack and save American lives. From its inception, however, some government officials warned that the CIA's program was unlawful and inhumane and that it would complicate – and possibly prevent – future prosecutions. These objections were ignored, in part based on the view that such constraints were irrelevant once the goal of law enforcement had shifted from prosecution to prevention.

Several years after coercive interrogation methods were first authorized, the administration was faced with the exact dilemma it had been warned about: what to do about evidence obtained through official cruelty. Rather than repudiate the CIA's methods, or even accept the inadmissibility of the statements obtained, the administration dug itself in deeper, seeking to use military commissions to legitimize the CIA's program. In 2004, the Defense Department established Combatant Status Review Tribunals (CSRTs) and allowed the tribunals to consider statements extracted under torture or through cruel, inhuman or degrading treatment (CID) in deciding whether to detain prisoners as "enemy combatants." In 2006, the administration successfully pressed Congress to include provisions in the Military Commissions Act (MCA) that authorize, for the first time in American history, the admission of coerced confessions as evidence during military commission trials.

In so doing, Congress created a secondary system of defective justice – one that ignores deeply-held American principles of due process and jeopardizes the successful prosecution of terrorist suspects.

This report demonstrates that the use of evidence tainted by torture and other inhuman treatment is pervasive and systematic in the cases of prisoners held at Guantánamo Bay, and has already infected legal judgments made there. It demonstrates that reliance on coerced testimony:

• Threatens the prosecution of those allegedly responsible for the September 11 attacks;
• Taints the legitimacy of the proceedings both at home and in the eyes of the international community, alienating U.S. allies and empowering terrorists;
• Shifts the focus of the proceedings from the suspected criminal conduct of the accused to the abusive conduct of their interrogators;
• Fosters the perception that the cases against suspected terrorists are weak; and
• Validates and perpetuates the use of torture and coercive interrogation techniques.

The report includes case studies of six Guantánamo detainees: Khalid Sheikh Mohammed, Mohammed al-Qahtani, Abu Zubaydah, Mouhamedou Ould Slahi, Binyam Mohamed, and Omar Khadr. All six men allege abuse at the hands of U.S. government interrogators, some of which has been documented by military investigations and detainee interrogation logs, and some of which has been publicly acknowledged by administration officials. Three of these men are among the thirteen who have now been charged with criminal offenses by military commission officials.

Human Rights First has identified at least 62 other suspects currently detained at Guantánamo who also may have been abused. The actual number may be higher. It is impossible to offer an exact calculation because a large portion of the evidence introduced during detention hearings remains classified.

The report includes interviews with experts who have reviewed the latest scientific studies on coercion, and with law enforcement personnel skilled at evaluating the usefulness of coercive tactics for human intelligence gathering and prosecution. The scientific literature belies the assumption that coercion leads to reliable information. Suspects who are tortured or otherwise coerced often provide false or misleading information in order to stop the abuse or because their mental and physical functions have been impaired.

The report also reviews domestic and international laws regarding involuntary statements. Throughout our nation's history, we have abided by an unequivocal prohibition on the use of coerced confessions during criminal trials because, in the words of Chief Justice John Roberts, "we disapprove of such coercion and because such confessions tend to be unreliable."[2] International law also prohibits the use of coerced testimony because the prohibition itself is thought to deter abusive conduct.

Finally, the report discusses the consequences of relying on coerced evidence from the perspectives of legal and military experts, including a source inside the Office of Military Commissions.

Human Rights First recommends:

Criminal Trials

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.

• 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 evaluating potentially classified evidence. These additional requirements should include disclosure of the classified sources, methods and activities by which statements were obtained; and
• Require the government to prove the reliability and materiality of hearsay evidence it seeks to introduce.

Detention Hearings

• The U.S. government should prohibit the admission of statements extracted through torture or coercion during detention hearings for terrorist suspects. If Combatant Status Review Tribunals are upheld as constitutional, CSRT procedures should be amended to that effect.
• Congress should require the U.S. government to provide detainees with counsel at detention hearings.
• Congress should restore habeas corpus rights to detainees designated as "enemy combatants."

Investigation and Interrogation

• The U.S. government should require government intelligence agents to adhere to the standards of interrogation outlined in the U.S. Army Field Manual.
• Congress should require the videotaping of interrogations of terrorist suspects that occur away from the battlefield.