Getting to Grips with Guantánamo III: Torture Evidence

KMSThis post is by Kasey McCall-Smith: a lecturer in Public International Law and programme director for the LLM in Human Rights at Edinburgh Law School.

This post is the third in a series of blogs that chronicle the history and current state of play regarding the US rendition and detention programme in the immediate aftermath of 9/11. They were written during the author’s visit to Guantánamo Bay, Cuba, to observe military commission proceedings in the case of USA v. Khalid Shaikh Mohammad, et. al.  30 May – 3 June 2016, which is the initial phase of her project Getting to Grips with Guantánamo.

Right now, on a small island in the Caribbean, what will ultimately be one of the most comprehensive examinations of torture is taking place in the form of a military commission proceeding in the case of US v. Khalid Shaikh Mohammad, et. al. (KSM case). A common understanding among the observers that are witnessing KSM is that half are there to see the 9/11 trial and half are there to see the torture trial. In anticipation of what many view as a foregone conclusion, the defence lawyers are diligently representing their clients in order to ensure that if the ultimate penalty, death, is pursued in the sentencing phase of the trial; then the brutality that they suffered at the hands of the CIA is in the trial record. This record will be instrumental to mitigation of the death penalty and speak to the reality that much of the evidence presented may have been extracted or derived through torture, which is prohibited under international law.

In a previous blog, the use of the military commissions established through the Military Commissions Act 2009 (MCA) was introduced. Here another aspect of the MCA is examined. Section 948r codifies Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the exclusion of evidence obtained through torture. While at first glance the MCA reinforces the commonly accepted prohibition against the admission of evidence obtained by torture, further inspection reveals some crucial exceptions. Subparagraph (c) of §948r specifically gives the military commission judge leeway to admit statements by the accused if

‘the totality of the circumstances renders the statement reliable and possessing sufficient probative value’ and the statement was made incident to lawful conduct and the ‘interests of justice would be best served by admission of the statement into evidence’  – (§948r(c)(1)).

The exceptions to the MCA suggest that the drafters gave extensive consideration to the use of what little information of value that was derived through the CIA’s Detention and Interrogation Program (DIP). It is through these exceptions that torture evidence will likely find its way into the proceedings. This reality of admission cuts both ways for the prosecution and defence.

Statements introduced by the prosecution will undoubtedly be challenged in light of the fact that the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (Torture Report – the publicly available version is 566 pages), supplemented by over 300,000 pages of CIA documents, clearly outlines the extent to which defendants in KSM were tortured from the moment they entered CIA custody. Piecing together the how and when the statements were gathered will speak directly to admissibility of evidence obtained by the CIA. There is no doubt that the ensuing battle of wills between the prosecution and the defence lawyers will be shaped by the judge’s decisions on admissibility under MCA §948r(c).

However, in light of unlimited discretion given presumptively ‘under the colour of law’ (See Bybee ‘Torture Memo’) to the CIA by the Bush administration in pursuit of terrorists abroad, most statements gathered between 2002 and 2007 could be argued as incident to lawful conduct as advised at the time. On the reverse side, validity of any statements made by the defendants will undoubtedly be argued as prejudiced directly in relation to the ill-treatment each of the defendant detainees suffered and continues to suffer (more on this later). Thus it will be for the commission members or ‘jurists’ in the common law sense – all commissioned military officers – to determine what role the ‘enhanced interrogation techniques’, which decidedly amounted to torture, play in this judicial theatre.

Though interrogation techniques were ultimately returned to the permissible limits by Executive Order 13491 (Ensuring Lawful Interrogations) of 22 January 2009, pre-trial motion arguments suggest continuing psychological torture allegations by detainees in secret Camp 7. In particular, Ramzi Bin al Shihb claims that he is subjected to vibrations and noises that prevent him from sleeping, sometimes for days at a time. His claims highlight the two, very precarious, sides of the torture coin in that there are two conclusions that can be drawn in light of Bin al Shihb’s many years of detention. The first would suggest that Camp 7 guards continue to violate the prohibition against torture and should be held to account, a claim repeatedly denied by a former Camp 7 commander. The second suggests something even more sinister in that Mr Bin al Shihb’s mind has been so irrevocably injured after years of torture that he cannot decipher the present from his past.

Either way, the allegations, and what will undoubtedly be lively arguments in the KSM court, underscore that the prohibition against torture must never be diminished. Torture does not serve justice and no matter how ‘just’ the KSM commission aims to be, the shadow of torture will permeate the proceedings until the bitter end.