The Biden Administration’s Moment of Truth on Torture Evidence

Read the full piece here.

by David Luban, Scott Roehm, Claire O. Finkelstein, Karen J. Greenberg, Lisa Hajjar, Jonathan Hafetz, Elisa Massimino and Gabor Rona

Abd Al-Rahim Hussein Al-Nashiri is headed to federal court to prevent the U.S. government from using torture-derived evidence in his capital prosecution before the Guantanamo military commissions. As discussed in detail in these previous posts, prosecutors claimed the authority to use such evidence in certain circumstances in his case, and the military commission judge signed off.

On Oct. 15, Al-Nashiri filed a petition for a writ of mandamus in the United States Court of Appeals for the District of Columbia Circuit seeking to enjoin the government from offering, and the military commission judge from considering, torture-derived evidence. We are among a group of scholars, former United Nations Special Rapporteurs on torture, retired military and intelligence officers, and human rights advocates who filed an amicus brief in support of Al-Nashiri’s petition. Our brief opens as follows:

There can be no doubt that torture-derived evidence is inadmissible in any American legal proceeding – at any time, for any purpose, except against alleged torturers. After Petitioner’s counsel learned that prosecutors in this case had relied upon his torture-derived statements in a discovery proceeding before the military commission judge, the prosecutors scrambled to withdraw those statements, but did not disclaim the authority to use such evidence again in similar circumstances. Instead, they argued that, as a matter of law, torture-derived evidence is admissible to resolve “interlocutory questions” such as discovery disputes. The military commission judge agreed.

Respectfully, prosecutors and the military commission judge are wrong and grant of Petitioner’s extraordinary writ is necessary for myriad reasons. Amici focus here on prosecutors’ and the military commission judge’s implausible interpretation of a statute that the United States has long assured the international community means precisely what Petitioner says its means, and the grave consequences that would flow from endorsing their interpretation.