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Interrogation and TortureIntegrating Efficacy with Law and Morality$

Steven J. Barela, Mark Fallon, Gloria Gaggioli, and Jens David Ohlin

Print publication date: 2020

Print ISBN-13: 9780190097523

Published to Oxford Scholarship Online: January 2020

DOI: 10.1093/oso/9780190097523.001.0001

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Drinking from a Poisoned Chalice

Drinking from a Poisoned Chalice

A Portrait of the U.S. Military Commissions at Guantánamo

(p.519) 19 Drinking from a Poisoned Chalice
Interrogation and Torture

John G. Baker

Mary E. Spears

Katherine S. Newell

Oxford University Press

Abstract and Keywords

The following is an adaptation of the keynote speech given by John G. Baker at the 2018 NATSECDEF Conference, “Preserving Justice in National Security,” hosted by the George Washington University Law School on September 20, 2018. Brigadier General Baker examined whether the United States military commissions, special military tribunals established by President George W. Bush in the aftermath of 9/11 solely to try noncitizen terrorism suspects, were capable of achieving justice. Answering with an empathetic “no,” Brigadier General Baker described an increasingly troubling series of actions taken against defendants who had been secretly held and tortured by the same government that was then seeking their criminal convictions and executions. It is clear from this speech that by the time this piece is published, more, and possibly more troubling events, will have occurred, as the United States continues to pay the price of torture.

Keywords:   Guantánamo, military commissions, Guantánamo defense counsel, secrecy, victims of torture, sexual torture, psychological torture, rule of law

I. Introduction

There is a little-known agency inside the United States Department of Defense called the Military Commissions Defense Organization (MCDO). In 2015, I became its (p.520) Chief Defense Counsel, a position I hold as I write this in November of 2018. The MCDO’s mission is to provide ethical, zealous, independent, client-based defense services under the Military Commissions Act in order to defend the rule of law and maintain public confidence in the nation’s commitment to equal justice under the law. Practically speaking, this means that MCDO attorneys, paralegals, and support staff defend the men charged with war crimes in proceedings called “military commissions,” which are held in U.S. Naval Station Guantánamo Bay, Cuba (or just Guantánamo).1

Put simply, the MCDO defends the rule of law from a military commission apparatus that is a failed experiment—a system flawed in both design and execution.

At the time of this writing, the 17-year anniversary of the attacks of September 11, 2001, has just passed, and not only are there no trial dates set in any Guantánamo case, but both of the judges who were hearing capital military commissions cases have retired, and the judge who had been presiding over the Hadi al Iraqi case was reassigned. This means that the prosecutions of all contested commissions (p.521) cases—including the 9/11 and USS Cole capital cases—now must start over with new judges.

For many, the delay in getting these cases to a fair trial remains their biggest concern about military commissions. But this delay is the byproduct of problems that are more fundamental, with the potential to reach far beyond these cases, both as precedent and by corrupting our core principles. The issues in our cases—particularly the effects of torture—would cripple any normal court case. And they are layered on top of the mayhem embedded in this failed experiment that we call the Guantánamo military commissions.

MCDO defense teams face significant hurdles that demonstrate why the Guantánamo military commissions are a national disgrace. Not coincidentally, these same events shine a light on what is lost—and what we are left with—when we allow acts of brutality to shape a “justice” system, and when we sacrifice true justice for the sake of secrecy.

II. Secrecy

First, the military commissions operate with an unspeakable level of secrecy. The government seems to regularly use classification to conceal information that it finds embarrassing.2 It also regularly refuses to produce relevant documents by claiming a “national security privilege,”3 although the prosecution cannot explain how information published in newspapers or foreign courts is being protected by hiding it from defense attorneys with security clearances.

For example, during a recent hearing in the 9/11 case, the military judge asked James Connell, defense counsel for Ammar al Baluchi, where he had gotten a piece of torture-related information that the government had previously withheld, claiming this information was so important to national security that it could not be provided to defense teams in a capital case. Mr. Connell explained that the government had provided this information to BuzzFeed News in response to a U.S. Freedom of Information Act request.4 When the clearly frustrated judge asked the prosecutor to explain what could possibly justify hiding facts from a defense team in a capital case but then providing those same facts to a reporter a year later, the prosecutor tap danced around the question.5 Just like they did when Mr. Connell’s team caught the U.S. Central Intelligence Agency (CIA) providing details concerning their client’s (p.522) torture to the makers of the film Zero Dark Thirty—the same information the government refused to provide to his defense team.6

The government’s demand for secrecy, particularly about the details and effects of torture, also creates unimaginable roadblocks for defense investigations. I say “unimaginable” for good reason: in January 2018, the Chief Prosecutor went so far as to explicitly threaten MCDO defense counsel with the possibility of criminal prosecution if they continued to conduct independent investigations of their clients’ torture overseas.7 And when the defense objected, pointing out that these are capital cases and the defense needs to explore and scrutinize the issue, the prosecution told the judge that the defense had no right to “quote, ‘investigate.’ ”8

According to the Senate Torture Report,9 the events defense counsel are trying to investigate happened a decade and a half ago. Also defense counsel have the same security clearances as the prosecutors. But despite these clearances, despite these being capital cases, and despite the fact that what they are seeking to investigate is their own clients’ time in pre-trial custody, someone has determined that these defense counsel do not “need to know” the information.

Only recently has the government faced consequences for keeping this information from defense counsel. The last thing that the presiding judge in the 9/11 case did before retiring was to find that a defense counsel’s ability to defend their clients without access to details of their torture was impermissibly limited; while the government could continue to withhold this information, this action called for sanctions. So he decided to bar the government from using the so-called clean team statements that were taken by the U.S. Federal Bureau of Investigation (FBI) in 2007, after the MCDO’s clients had been tortured by the CIA and transferred to the prison at Guantánamo.10 He based that decision on the fact that the defense could not adequately challenge the admissibility of those statements, because they (p.523) could not know exactly how the CIA had extracted confessions from their clients in the years before the FBI was sent in to take similar statements that were supposedly “clean” of the CIA’s torture. In other words, because the defense is not able to fully investigate their clients’ torture, the judge decided to ban their inculpatory statements altogether.11

The government has asked for reconsideration of that ruling and threatened to appeal, because, in its view, the “clean team” statements are among the most valuable evidence in their possession. In other words, in the context of the 9/11 prosecution, the U.S. government is explicitly relying on statements that the judge has considered as too questionable to admit because the specter of torture looms too large over them. This is due to the government’s insistence on keeping vital information from cleared members of the defense.

III. What Are They Hiding?

To understand the government’s zeal for secrecy, it is necessary to understand what the government is trying to hide.

Every time new information about CIA torture becomes public, people recoil and say, “That must be the worst thing that happened.” Yet each new revelation has managed to outstrip the horror of the previous one.

There are numerous stories of criminal defendants who have suffered terrible abuse—but rarely has that abuse been by the very people who are still detaining them, who are pursuing their prosecution, and who are seeking to execute them.

Many people think they understand how badly detainees were abused in the CIA program, given coverage in the press, but they would be wrong. For example, it is not well known that the CIA regularly threatened detainees’ families,12 including threats to kill children.13 And while the repeated waterboarding of Khalid Shaykh Mohammad has been widely discussed, the fact that he and others were subjected to a form of anal rape euphemistically called “rectal rehydration” has not.14

(p.524) Similarly, the standard narrative is that detainees were deprived of sleep for days at a time, forced to stand naked with arms shackled overhead, in cold rooms with blinding lights and deafening sounds.15 This is horrifying enough, but missing from this story is that some were forced to urinate and defecate on themselves,16 and that CIA medical personnel were not required to intervene until “evidence of loss of skin integrity due to contact with human waste materials.”17 To be precise, medical personnel could leave detainees suffering in their own filth until they developed open sores.

While the U.S. government claims at every opportunity that it only used torture for intelligence purposes, it is less widely publicized that in the summer of 2018, the government finally declassified their objective for torturing Mr. al Baluchi—they tortured Ammar as a form of human experimentation, using him as a test subject to train new interrogators.18

While it is relatively widely known that Abu Zubaydah was interrogated while severely wounded, it may be less well known that he was repeatedly waterboarded; slammed against a wall; and forced to stand, sit, or crouch inside wooden boxes,19 with such violence that his bandages “came completely off.” Nor is it widely known that three days later, the guards, “swapped out subject’s wrist shackles, for a clean pair, since they occasionally come into contact with the exposed wound. . . .” Or that his captors then “demanded that subject clean his wound as they had no interest in getting any exudate from his wound or any other of his bodily functions on or near them[.]”20

(p.525) While it is public record that Majid Khan, a lawful U.S. resident, grew up in suburban Baltimore, the fact that when Mr. Kahn refused to eat, detention personnel inserted a tube into his rectum and pumped it with two bottles of Ensure, and a “lunch tray” consisting of “pureed” hummus, pasta with sauce, nuts, and raisins is almost unknown.21 “According to CIA records, [he] was ‘very hostile’ to rectal feeding and removed the rectal tube as soon as he was allowed to.”22 Let me point out that this describes a man forced to participate in his own torture. On two occasions, Majid Khan attempted to cut his wrist. He tried to chew into his arm at the inner elbow, to cut a vein in the top of his foot, and to cut into his skin at the elbow joint using a filed toothbrush.23 Other detainees also attempted acts of self-harm,24 or asked to be killed, or allowed to die.25

Even with these additional details, the worst that happened is not in the public record. Stated another way—the worst is still hidden. Defense counsel know more than the public, but they do not know the worst either. They should, and so should the juries, especially in capital trials.

As a MCDO defense counsel argued when challenging the government’s torture-hiding discovery practices—he “needs ‘the gritty, granular detail’ of what U.S. agents did to his client. His jury needs to “smell the urine, the feces, the blood, the sweat and see just how vile and disgusting this process was.” Then, if [. . .] convicted, defense lawyers can ask the jury, ‘Do you have to kill him now?’ ”26

This torture—let’s call it what it is—this torture was not perpetrated by rogue elements. These monstrous acts were systematically instituted, embraced, and promoted at the highest levels of the U.S. government—the same government that is fighting tooth and nail to hide information about these acts and to prosecute and kill the men who suffered them.

Speculate with me for a moment: What would Justice Robert Jackson’s reaction be if, when handed the defendants to prosecute at Nuremberg, he knew they were men the Allies had secretly and systematically anally raped? Do we believe he would have conducted that prosecution with his head held high? Do we believe the Nuremberg trials would have retained their legitimacy? Or do we believe Justice Jackson would have recognized the terrible toll such an act would take on us all?

IV. “Unlawful Influence?”

Although the decision of the judge in the 9/11 case to ban the “clean team” statements went against the government, finally imposing some consequences for their lack of transparency, the military commissions at Guantánamo remain vulnerable to outside pressures seeking to influence the process against the defense. (p.526) Thus, although these are ostensibly national security cases, and so their only goal should be exposing and punishing acts damaging to our nation’s well-being, political considerations have come creeping into them—considerations that might not exist if these were regularly constituted courts, and not ad hoc tribunals intended to obtain convictions while maximizing secrecy.

Consider what began happening in early February 2018. That’s when the “convening authority” was fired along with his chief legal and policy advisor. The “convening authority” is the DoD civilian who oversees the military commissions and is responsible for among other things, negotiating plea deals like the district attorney does in most counties, and making funding decisions on defense expert requests like many district court judges do in the federal system. A few months ago, pursuant to an order from a judge in Guantánamo, Secretary of Defense James Mattis and his staff submitted an 11-page declaration attempting to justify this decision. But the former convening authority provided a different declaration explaining that he had no idea why he had been suddenly removed, that he had not been approached or warned about poor performance prior to being fired, and that he was forced to conclude that his firing had something to do with the decisions he had made as convening authority.

The “why” of this firing could affect the legitimacy of these cases, because of a military concept called “unlawful influence” that is prohibited under the Military Commissions Act.27 Therefore, if Secretary Mattis was influenced, by his staff or others, to fire the convening authority because of how he was overseeing these cases—or because, as we now know occurred, he was meeting with defense counsel to discuss potential plea agreements that might preclude the death penalty in the 9/11 case—that could be a huge legal problem.

Since those declarations were filed, we have learned many more disturbing details. We have learned, for example, that the Chief Prosecutor did not get along with the convening authority, and behaved “inappropriately” toward him.28 And we have learned that two days before the first memo was written about his potential firing, the convening authority circulated a proposal to take some authority away from the office of the prosecution and to consider non-death plea agreements in the Guantánamo cases.29 It is not clear at the time of this writing whether the new judge in the 9/11 case agrees that this raises the specter of improper influence on the convening authority.

And the pressure on the military commissions system does not just come from within the Department of Defense. While they were investigating whether the convening authority had been unlawfully influenced, MCDO defense counsel learned that Attorney General Sessions had called Secretary Mattis to complain about the potential plea deal. Rather than contest this, one of the prosecutors in Guantánamo excused it to the judge by saying it only made sense for the Department of Justice to try to influence the outcome of a Department of Defense prosecution because if (p.527) the 9/11 defendants were offered a plea deal, that might make it harder for federal prosecutors to get death sentences against defendants in U.S. federal court.30

Or take what happened in U.S. v. al-Nashiri. After three civilian lawyers withdrew from the case for ethical reasons because of what they found in their attorney-client meeting room—an incident that will be described in greater detail—the judge began attacking them personally, as well as the MCDO as a whole, calling them “unprofessional” and “lawless” people acting in “defiance” of the “rules.” But as the Supreme Court has said for decades now, the system that appoints criminal defense attorneys is obliged to respect the professional independence and the professional judgments of those attorneys. Writing in Polk County v. Dodson, the Supreme Court explained that “a defense lawyer best serves the public not by acting on the State’s behalf or in concert with it, but rather by advancing the undivided interests of the client.”31 Pay attention to that language—a lawyer best serves the American public when she is able to make a full-throated defense of her client. That is a concept so important to the rule of law that Chief Justice Roberts commissioned a report in 2017 that ultimately proposed a complete restructuring of the federal public defender system so as to preserve their independence.32 But it is a concept that does not seem to carry much weight down in Guantánamo.

For the attentive observer, there are signals everywhere about the government’s expectations for situations akin to the Guantánamo military commissions. In September 2018, then-National Security Advisor John Bolton insisted that the United States will punish anyone who investigates potential war crimes committed by Americans in Afghanistan.33 This is a very short step from saying, “we will punish anyone who investigates acts of torture in CIA black sites.” And it is fair to say that a government willing to prosecute those who investigate alleged American war crimes might also be willing to prosecute those who defend alleged terrorists. Indeed, we know now that the Chief Prosecutor has threatened to do just that to the 9/11 defense teams.

V. Second-Class Justice

This leads me to the last point I want to make—that the “justice” we as a country say is good enough for the detainees in Guantánamo is explicitly and exactly the kind of injustice we loudly reject when the defendants are American citizens.

The National Security Advisor said the U.S. government is very concerned about prosecution of U.S. citizens in international courts because they lack checks and balances, claim “jurisdiction over crimes that have disputed and ambiguous (p.528) definitions,” or that purport to have “automatic jurisdiction,” meaning they can prosecute individuals that have no connection to the court or to the government that ratified that court’s existence. A court lacks legitimacy, he implied, if it can just grab whoever it wants and prosecute those people for things the court claims they did in a foreign country, “without the consent of either nation-states or the individuals over which it purports to exercise jurisdiction.”34

Regardless of whether these concerns are well founded, it is not hard to see parallels between what is being called injustice for Americans and the injustice Americans have chosen to inflict on foreigners at Guantánamo. It is already clear that the commissions are subject to pressure from the executive branch that owns them. And we know that at the time of this writing, the higher appellate court that is supposed to oversee the commissions, the Court of Military Commissions Review (CMCR), does not exist for the 9/11 case—so many CMCR judges have conflicts that the court is “inquorate,” meaning it does not currently have enough non-conflicted judges to decide any issues pertaining to the 9/11 prosecution.35 So where are the checks and balances?

There is also the fact that all of the men currently being prosecuted in war crimes tribunals in Guantánamo are charged with conspiracy, which is an American domestic crime that has never been recognized as a war crime or a violation of the international law of war. What was that about ambiguous crimes again?

Or consider the military commissions prosecution of Mr. al-Nashiri and Mr. al-Darbi for the bombing of the MV Limberg—a French ship chartered to a Malaysian company that was carrying Iranian oil in Yemeni waters—in which a Bulgarian sailor was killed.36 Somehow, the U.S. government has found a way to assert jurisdiction over that crime in an American military court, without any concurrent domestic prosecution in France or Bulgaria, and certainly without the “consent” of either Mr. al-Nashiri or Mr. al-Darbi.

The inescapable conclusion is that the reality of the military commissions is worse than the National Security Advisor’s concerns about international courts. The justice America is willing to give these Guantánamo detainees falls far short of the justice it demands for its own citizens. It is second-class justice, the obvious result of an experimental system that has completely failed in both design and execution. It is what we settle for when we resign ourselves to a system of “justice” in which torture and its effects are alive and active, lurking around every corner.

(p.529) VI. Attorney-Client Privilege

Consider one last example of that second-class justice: the constant years-long governmental intrusion into the attorney-client relationship at Guantánamo, which is an umbrella issue that has plagued the military commissions almost since the time the clients were first charged. Throughout the years, the government has demonstrated a disregard for the sanctity of the attorney-client relationship that denies military commissions defendants the right to counsel, and sets a dangerous precedent for the American criminal justice system.

As you may know, criminal defendants are entitled to effective assistance of counsel.37 But the right to effective assistance of counsel includes the right of private consultation with counsel.38 The purpose of the attorney-client privilege, the Supreme Court has said, “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”39 In other words, for any criminal justice system to work, defendants must have the ability to trust their lawyers and speak with them in confidence. Without that, there cannot be a legitimate legal system.

And yet—ironically, given the government’s obsession with keeping its own secrets—the stark and very depressing reality down at Guantánamo is that the defendants have no reason to trust their lawyers or think they can speak with them in confidence. MCDO lawyers have told their clients that no one will read their privileged materials, that no member of their defense team will be enlisted by the government to violate the attorney-client privilege, and that no one will “unintentionally overhear” their privileged communications with their attorneys. Yet despite their best efforts, over and over again, when MCDO lawyers tell their clients they can speak frankly, another government intrusion is revealed and defense counsel look at best like fools—and at worst like liars.

In 2011, when the cases in this latest iteration of the failed military commissions experiment began. Joint Task Force Guantánamo (the command responsible for the custody of detainees in Guantánamo) seized, copied, and translated all written material in all detainees’ possession. This included documents very clearly marked as attorney-client privileged.40 And, incredibly, this seizure of privilege materials was done after consultation with the Joint Task Force’s lawyers.41

The military judge who first addressed this search and seizure concluded that it “infringe[d] on the attorney-client privilege.”42 The government then promised not to engage in conduct that infringed on the attorney-client privilege. Yet similar conduct has continued.

(p.530) Next, in the space of three months beginning in January 2013, the 9/11 defense teams discovered that an intelligence agency could shut down live courtroom proceedings without the knowledge or assent of the judge,43 and that the same agency had the ability to listen to courtroom conversations, including between defense counsel and their clients, through the microphones placed on defense tables.44

Next, in February 2013, a MCDO attorney took it upon himself to climb onto a chair in an attorney-client meeting room in Guantánamo and write down the make and model of what Joint Task Force guards (and one Joint Task Force lawyer) had explained to be a smoke detector mounted on the ceiling. With the make and model, the MCDO lawyer returned to his office to Google the company, and discovered that the company did not make smoke detectors, but instead made microphones that look like smoke detectors. These hidden listening devices existed in all attorney-client meetings rooms where commission defendants meet with defense counsel.45 When the issue was litigated, the government promised not to utilize such devices to infringe on the attorney-client privilege. As time has passed, we would learn this was yet another broken promise.

Then, on a Sunday in 2014, shortly after a MCDO staff member came home from church, two members of the FBI appeared at his door. After some conversation (what interrogators call “rapport building”), the FBI agents asked the MCDO staff member to reveal privileged information about the case he was working on, as well as other pending military commission cases. The FBI agents were successful in persuading the MCDO staff member to sign a contract to become a confidential informant against the MCDO and provided the government with a treasure trove of privileged materials.46 We have not even begun to appreciate the fallout of that broken promise, as the litigation surrounding this issue is far from over.

Then, during a February 2015 hearing, one of the 9/11 accused announced that he recognized the court interpreter sitting at his defense table from one of the black sites where he was interrogated and tortured.47 This shocking revelation, that a government-provided defense interpreter may have been involved in the torture program, led to well over a year’s delay in the proceedings while hearings were canceled and court-ordered investigations were conducted. And, like the FBI informant issue, litigation on this black site interpreter issue is far from over.

(p.531) Needless to say, any one of these events would have triggered intense scrutiny in a real court, if not major investigations and reform. But not in the Guantánamo military commissions, cobbled together as they are out of bits and pieces of the court-martial and federal systems with the goal of prosecuting torture victims. In this second-class justice system, each of them lingers unresolved, eroding the attorney-client relationship.

Many similar incidents have occurred since, but the most notable involved what the government called “legacy microphones” in at least one location where detainees met with lawyers.48 Defense counsel for Mr. al-Nashiri, the accused in the USS COLE case, discovered one in August of 2017, but the government attempted to minimize its importance by calling it a mere “legacy.”49 The al-Nashiri team asked for discovery about it, but that was denied. They asked to have a hearing about the issue and that too was denied50 because the prosecution had promised that they—the members of the prosecution—had not personally listened in on any of Mr. al-Nashiri’s attorney-client meetings. The al-Nashiri team was told the existence of the “legacy microphone” was classified, and because defense counsel cannot share classified information with their clients, they asked the judge for special permission to simply inform their client about the risks they had discovered. But that too was denied.51 That meant they could not tell Mr. al-Nashiri anything about the so-called legacy microphone in the room where he had been meeting with his lawyers. In March of 2018, the government finally admitted publicly that there were “legacy microphones” in the location where at least Mr. al-Nashiri met with his lawyers.

It does not require much effort to know this would not be allowed in an American court, with American defense lawyers and American citizens as defendants. In 2017, a federal prosecutor in Kansas was put out of a job after the government taped, and in some cases listened to, hundreds of conversations between defense attorneys and their clients.52

Now consider what happened next in Mr. al-Nashiri’s case. After this discovery, three of his counsel requested my permission to withdraw from that case due to the ethical situation in which they found themselves.53 One of those lawyers was Mr. al-Nashiri’s “learned counsel,” the expert in death penalty defense to whom he is entitled by law.

(p.532) After some significant deliberation, I found that each had provided good cause to be excused, and in accordance with my responsibilities as defined in the governing rules for the commission system issued by the Secretary of Defense,54 I granted them permission to withdraw.55

This, however, provoked the military judge on the al-Nashiri case, the same one who had denied them discovery, who had denied them a hearing, and who had denied their request to simply inform Mr. al-Nashiri about what they had found. He ordered me to rescind my excusal. And when I declined that order as unlawful, he, incredibly, held me in contempt, in violation of the Military Commissions Act,56 and gave me a 21-day sentence of confinement.57 A few months later, a federal judge, as expected, ruled that the military judge acted unlawfully and beyond his authority, and overturned the contempt conviction.58

This is not quite what happened, but try this as an analogy: Imagine a big law firm is working on a criminal case pro bono. Now imagine one of the associates on the case left the firm for personal reasons. Imagine the judge ordering the managing partner of the firm into court and demanding that he testify about the circumstances behind the associate’s decision to leave, then demanding he force the associate back to work. Now imagine the judge jails the partner. Is this a system we would tolerate for Americans?

And, it got worse, because down at Guantánamo, the military judge went ahead with Nashiri hearings in the case—hearings at which the government introduced evidence into the record, despite no jury having been selected yet—all while Mr. al-Nashiri did not have a lawyer with him who had even tried a murder case, much less a death penalty case.59

The kicker to all this is that the al-Nashiri team only found one “legacy microphone.” But the government’s later statement about the matter admitted that more than one was removed from the meeting location.60 I invite you again, one last time, to imagine an American court in which multiple “legacy microphones” were located in the defense’s attorney-client meeting room,61 and the only consequences are that someone on the defense side is sent to confinement.

(p.533) VII. Conclusion: A Poisoned Chalice

I cannot foresee the inevitable remedy for the injustice that is the Guantánamo military commissions. What I do know is that what happens down at Guantánamo matters. After the passage of the Military Commissions Act, a former Chief Prosecutor for Military Commissions stated that his goal was for Guantánamo military commissions to be remembered in the same favorable light as the Nuremberg trials. The U.S. government unfortunately has failed and continues to fail this test. Future generations will look back at these proceedings as a missed opportunity for America to show the world its commitment to justice, to human rights, and to the rule of law.

If the U.S. government truly intends to use Nuremberg as its guide, it would be wise to learn from the chief prosecutor at Nuremberg, Justice Jackson. One political theorist wrote of Justice Jackson that his Nuremberg trials revived the rule of law in Germany as a moral goal, not simply a political tool. Justice Jackson also recognized the inherent dangers of political trials, which “mean committing the judiciary to the politics of the remote future and of persecution.”62 And it was Justice Jackson who recognized the danger of letting powerful nations unilaterally dispense justice onto a purported enemy. He said in his opening argument at Nuremberg: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”63

But as we’ve seen, the Guantánamo military commissions are shot through with the effects of the torture the United States government employed in the months and years predating these trials. And torture is a poison. Corrosive as acid, it hazards the rule of law as it burns away the protections we treat as sacrosanct in our American system of justice. Sadly, it seems that instead of fulfilling the great promise of the Constitution—ensuring equal protection under the law—the U.S. government chooses to drink from a poisoned chalice. (p.534)


(*) The views expressed in this paper are those of the authors, and do not reflect the views of the Department of Defense, the United States Government, or any agency or instrumentality thereof. The sources cited herein are referenced solely in support of the facts presented in this chapter and in no way should be construed as confirmation or denial of other facts located in said sources.

(1.) Among these cases:

  • () Khalid Shaikh Mohammad, Walid Bin ‘Attash, Ammar al Baluchi, Ramzi Bin al Shibh, and Mustafa al Hawsawi were five alleged al-Qaeda members charged with aiding the September 11, 2001 attacks. If they were found guilty, the U.S. government planned to seek the death penalty. United States v Khalid Sheikh Mohammed, et al. The five men were secretly held and tortured by the U.S. Central Intelligence Agency (CIA) before their 2006 transfer to the prison at Guantánamo.

  • () Abd al-Rahim al-Nashiri is accused of crimes arising out of an attempted attack on the USS THE SULLIVANS in January 2000; an attack on the USS COLE in October 2000; and an attack on the MV Limburg, a French oil tanker off Yemen, in October 2002. United States v Abd al-Rahim al-Nashiri. If he was found guilty, the U.S. government planned to seek the death penalty. Mr. al-Nashiri was also secretly held and tortured by the CIA before his 2006 transfer to the prison at Guantánamo.

  • () Nashwan al-Tamir, also known as Abd al Hadi al-Iraqi, was charged with war crimes allegedly committed in or about 1996 to in or about late 2006. United States v Abd al Hadi al-Iraqi. Mr. al-Tamir was secretly held and tortured by the CIA before his 2007 transfer to the prison at Guantánamo.

  • () In February 2014, Ahmed Muhammed Haza al-Darbi pleaded guilty to terrorism charges before a military commission in relation to the October 2002 attack on the MV Limburg. He was not sentenced until October 2017. United States v Ahmed Muhammed Haza al-Darbi.

  • () Majid Khan pleaded guilty in 2012 to crimes relating to a number of alleged bombing plots, including the 2003 bombing of a Marriott hotel in Jakarta. Despite having been in U.S. custody since 2003, as of November 2018, he had not been sentenced. Mr Kahn was also secretly held and tortured by the CIA before his 2006 transfer to the prison at Guantánamo.

  • () As of November 2018, Riduan Isamuddin, also known as Hambali, Bashir bin Lep, also known as Lillie, and Mohd Farik bin Amin, also known as Zubair, were facing charges relating to a series of bombings in Indonesia in 2002 and 2003, but had not yet received word as to whether those charges would proceed to trial in a military commission. All three men were secretly held and tortured by the CIA before their 2006 transfer to the prison at Guantánamo.

(3.) See eg United States v al-Nashiri, Unofficial/Unauthenticated Transcript (12 April 2012) 841-43; ibid 4454-62 (28 May 2014); ibid 5092-95 (6 August 2014); US v Mohammad, et al, AE 013G (AAA) (18 May 2012).

(4.) US v Mohammad et al, Unofficial/Unauthenticated Transcript (23 July 2018) 20039-40.

(5.) ibid 20048-51.

(6.) US v Mohammad et al, AE 195 (AAA) (31 July 2013). Zero Dark Thirty is a 2012 American political-thriller film that dramatized the international manhunt for al Qaeda leader Osama bin Laden after the September 11 attacks in the United States. See eg Steve Coll, ‘Disturbing’ & ‘Misleading,’ New York Review of Books <https://www.nybooks.com/articles/2013/02/07/disturbing-misleading-zero-dark-thirty/> accessed 9 November 2018.

(7.) US v Mohammad et al, AE 524 (AAA), Attachment C (25 September 2017); US v Mohammad et al, Unofficial/Unauthenticated Transcript (10 January 2018) 18524-25.

(8.) US v Mohammad et al, Unofficial/Unauthenticated Transcript (10 January 2018) 18540.

(9.) The Senate Torture Report is the forward, executive summary, findings and conclusions of a study of the Central Intelligence Agency’s detention and interrogation program conducted by the Select Committee on Intelligence, U.S. Senate. The forward, executive summary, findings and conclusions of the Committee Study were released to the public, with redactions, on 14 December 2014. As of November 2018, the full Committee Study, which totals more than 6,700 pages, remains classified. Senate Select Committee on Intelligence, Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, Executive Summary (9 December 2014) [hereinafter, SSCI Report].

(10.) See eg Josh Meyer, ‘FBI working to bolster Al Qaeda cases: The U.S. is concerned that evidence obtained from CIA interrogations will be inadmissible at war-crimes tribunals,’ Los Angeles Times (21 October 2007) <http://articles.latimes.com/2007/oct/21/nation/na-terror21> accessed 30 October 2018.

(11.) US v Mohammad et al, AE 524LL (17 August 2018).

(12.) One CIA contractor “verbally threatened Abu Zubaydah by stating, ‘If one child dies in America, and I find out you knew something about it, I will personally cut your mother’s throat.’ ” Central Intelligence Agency Inspector General, Special Review, Counterterrorism Detention and Interrogation Activities (September 2001-October 2003) (2003-7123-1 G) ¶ 78 (9 May 2004) <https://www.thetorturedatabase.org/files/foia_subsite/cia_26.pdf> accessed 9 November 2018; See also ibid para 94 (CIA personnel threatened Abd al-Rahim al-Nashiri by saying that if he did not talk, “We could get your mother in here” and “we can bring your family in here”).

(13.) CIA contractors told Khalid Shaykh Mohammad that “if anything happens in the United States, “[w]e’re going to kill your children.” SSCI Report (n 9) 487 fn 2654. See also ibid 85, 91 (“detention site personnel hung a picture of [Mohammad’s] sons in his cell as a way to ‘[heighten] his imagination concerning where they are, who has them, [and] what is in store for them’ ”).

(14.) “Chief of Interrogations [redacted] also ordered the rectal rehydration of [Mohammad] without a determination of medical need, a procedure that the chief of interrogations would later characterize as illustrative of the interrogator’s “total control over the detainee.” SSCI Report (n 9) 82. See also ibid 83, 100 fn 584 (citations omitted).

(15.) “Numerous detainees were stripped and shackled, nude, in the standing stress position for sleep deprivation or subjected to other enhanced interrogation techniques [. . .]” SSCI Report (n 9) 484 fn 2639. See also ibid 72 (“CIA Headquarters approved a plan to reinstitute the use of the CIA’ s enhanced interrogation techniques against al-Nashiri, beginning with shaving him, removing his clothing, and placing him in a standing sleep deprivation position with his arms affixed over his head.”); ibid 77 fn 406 (“. . . the plan stated that bin al-Shibh would be shackled nude with his arms overhead in a cold room [. . .]”).

(16.) See eg SSCI Report (n 9) 137 (“According to an August 26, 2004, cable, after a 47-hour session of standing sleep deprivation, Janat Gul was returned to his cell, allowed to remove his diaper, given a towel and a meal, and permitted to sleep.”).

(17.) OMS Guidelines on Medical and Psychological Support to Detainee Rendition, Interrogation, and Detention (28 December 2004) (released with redactions June 2016); OMS Guidelines on Medical and Psychological Support to Detainee Rendition, Interrogation, and Detention (17 May 2004) 23 (released with redactions) (medical limitation on diapering is “evidence of loss of skin integrity”).

(18.) Carol Rosenberg, ‘Behind Closed Doors, Guantánamo Secret Court Talks About the CIA, Torture, and Rights,’ Miami Herald (28 July 2018) <https://www.miamiherald.com/latest-news/article214381804.html> accessed 9 November 2018.

(19.) See SSCI Report (n 9) 40-46.

(20.) CIA Cable, Subject: EYES ONLY—DETAILS RE 06 AUGUST 02 CYCLE OF INTERROGATIONS OF ABU ZUBAYDAH, 061558Z AUG 02, [REDACTED] 10594 <https://www.documentcloud.org/documents/4453652-LEOPOLD-CIA-Interrogation-Documents.html> accessed 9 November 2018.

(21.) SSCI Report (n 9) 115.

(22.) ibid 488.

(23.) ibid 114-15.

(24.) See eg ibid 80, 114.

(25.) “According to a CIA cable, ‘[Janat Gul] asked to die, or just be killed.’ ” ibid 136-37.

(26.) Rosenberg, ‘Behind Closed Doors . . .’ (n 18).

(27.) 10 USC § 949b.

(28.) US v Mohammad et al, Unofficial/Unauthenticated Transcript (11 September 2018) 20783.

(29.) See US v Mohammad et al, Unofficial/Unauthenticated Transcript (12 September 2018) 20912, 20952-54.

(30.) US v Mohammad et al, Unofficial/Unauthenticated Transcript (11 September 2018) 20737-38.

(31.) Polk County v Dodson, 454 US 312 (1981) 318-19, 321-22.

(32.) 2017 Report of the Ad Hoc Committee to Review the Criminal Justice Act (9 November 2017) <http://www.sixthamendment.org/6ac/Cardone_Commn_Report_2017.pdf> accessed 9 November 2018.

(34.) ibid.

(35.) United States Court of Military Commission Review, Ammar Al Baluchi, Petitioner v United States, Respondent, Memorandum To The Parties (23 May 2018) CMCR Case No 18-003, <https://www.mc.mil/Portals/0/pdfs/alBaluchi18-003/USCMCR%2018-003%20Baluchi%20Memo%20(05232018).pdf> accessed 6 November 2018.

(36.) Jon Henley and Heather Stewart, ‘Al-Qaida Suspected in Tanker Explosion,’ The Guardian (6 October 2002) <https://www.theguardian.com/world/2002/oct/07/alqaida.france> accessed 6 November 2018.

(37.) Strickland v Washington, 466 US (1984) 668, 686.

(38.) Coplon v United States, 191 F2d 749, 757 (DC Cir 1951).

(39.) Upjohn v United States, (1981) 449 US 383, 389.

(40.) US v Mohammad et al, Unofficial/Unauthenticated Transcript (21 June 2013) 3910-46.

(41.) United States v al-Nashiri, Unofficial/Unauthenticated Transcript (9 November 2011) 129-32.

(42.) United States v al-Nashiri, Unofficial/Unauthenticated Transcript (9 November 2011) 168.

(43.) US v Mohammad et al, Unofficial/Unauthenticated Transcript (28 January 2013) 1445 ff; Amy Davidson Sorkin, ‘A Red Light at Guantánamo,’ The New Yorker (29 January 2013) <https://www.newyorker.com/news/daily-comment/a-red-light-at-guantnamo> accessed 6 November 2018.

(44.) US v Mohammad et al, Unofficial/Unauthenticated Transcript (12 February 2013) 1879, 1885, 1862; see also Associated Press, ‘9/11 Lawyers Fear Eavesdropping at Guantánamo,’ USA Today (11 February 2013) <https://www.usatoday.com/story/news/nation/2013/02/11/lawyers-govt-eavesdropping-gitmo/1910033/> accessed 9 November 2018.

(45.) US v Mohammad et al, AE133Q (12 February 2013); US v Mohammad et al, AE133 (31 January 2013).

(46.) US v Mohammad et al, AE292 (14 April 2014).

(47.) US v Mohammad et al, Unofficial/Unauthenticated Transcript (9 February 2015) 8248-50.

(48.) In re al-Nashiri, 921 F3d 224, 229 (DC Cir 2019).

(49.) United States v Nashiri, Gov’t Opp to Motion to Dismiss at 5-6 (CMCR, Cause No 18-002).

(50.) See United States v al-Nashiri, Unofficial/Unauthenticated Transcript (31 October 2017) 10022.

(51.) ibid 10021.

(52.) Ian Cummings and Tony Rizzo, ‘Federal Prosecutor Leaves After Revealing She Listened to Leavenworth Prison Phone Calls,’ Kansas City Star (27 June 2017) <https://www.kansascity.com/news/local/crime/article158440829.html> accessed 9 November 2018; Justin Glawe, ‘U.S. Attorney’s Office Under Investigation After 700 Lawyers Were Spied On in Prison,’ The Daily Beast (27 March 2017) <https://www.thedailybeast.com/us-attorneys-office-under-investigation-after-700-lawyers-were-spied-on-in-prison> accessed 9 November 2018.

(53.) United States v Nashiri, AE339J (13 October 2017); AE 339K (13 October 2017); AE 339L (13 October 2017).

(54.) See R Mil Comm 505(a); R Mil Comm 505(d)(2)(B).

(55.) United States v Nashiri, AE339J (13 October 2017); AE 339K (13 October 2017); AE 339L (13 October 2017).

(56.) Baker v Spath, No 17-CV-02311 (2018) US Dist LEXIS 101622 (18 June 2018) *32-*41.

(57.) United States v al-Nashiri, Unofficial/Unauthenticated Transcript (31 October 2017) 10042-43; ibid (1 November 2017) 10063-64, 10072.

(58.) Baker v Spath, (n 56) *41.

(59.) Carol Rosenberg, ‘He Became a SEAL to Fight Terrorists. Now He’s a Navy Lawyer Defending an Accused One,’ Miami Herald (13 November 2017) <https://www.miamiherald.com/news/nation-world/world/americas/Guantánamo/article184350533.html> accessed 9 November 2018.

(60.) United States v Nashiri, Gov’t Opp to Motion to Dismiss (n 49) at 6.

(61.) In re al-Nashiri (n 48) 229.

(62.) Dennis J Hutchinson, ‘Justice Jackson and the Nuremberg Trials’ (1996) 1 Journal of the Supreme Court History 105, 112, 115.

(63.) Robert H Jackson, ‘Opening Speech at the Nuremberg Tribunal,’ The Jackson Center (21 November 1945) <https://www.roberthjackson.org/speech-and-writing/opening-statement-before-the-international-military-tribunal> accessed 9 November 2018.