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Showing posts with label accurate information. Show all posts
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Thursday, March 10, 2022

Biden Team Gets It Right on Inadmissibility of Torture Evidence

Tess Bridgeman
JustSecurity.com
Originally posted 1 FEB 22

The Biden administration just took an important step to restore the rule of law in the Al-Nashiri case at the Guantanamo military commissions: it categorically rejected the use of statements obtained through torture at any stage in the proceedings and promised that the government will not seek to admit any statements the petitioner made while in CIA custody. This should be unremarkable, as it clearly reflects U.S. domestic and international legal obligations and Biden administration policy, but the position the Department of Justice (DOJ) took in its brief filed in the D.C. Circuit Court of Appeals on Monday is actually an about-face from the position prosecutors took before the military commission judge. The Al-Nashiri case has a long history, but this most recent controversy stems from prosecutors’ decision to seek to admit statements obtained through torture in pre-trial proceedings in the capital case of Abd Al-Rahim Hussein Al-Nashiri, the “alleged mastermind” of the U.S.S. Cole bombing. Although the prosecution eventually withdrew the particular statements at issue, it had essentially reserved the right to rely on torture-obtained evidence in future proceedings. 

In October of last year, Al-Nashiri filed a petition for a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit that sought “to enjoin the government from offering, and the military commission judge from considering, torture-derived evidence.” The much-awaited U.S. government response — called a “moment of truth” for the Biden administration on torture — came yesterday. 

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The government is taking the issue seriously in this case; but what about the other cases? 

The government brief states that it has “conducted a search of this case’s voluminous record, including the prosecution’s ex parte submissions” to determine whether there have been any “past orders predicated on evidence admitted in violation of” the Military Commissions Act’s prohibition of the admission of statements obtained through torture or CIDT. It found one, and has committed to “move promptly to correct” the error. This shows the administration is taking the issue seriously. 

But given al-Nashiri isn’t the only petitioner who was in the CIA’s black sites, and that the prosecution regularly makes ex parte submissions in commission proceedings, there may be instances in other cases pending before the military commissions where the same problem is lurking and could compromise the prosecution. If it isn’t doing so already, the government would be wise to undertake a thorough review of all commissions cases and withdraw any submissions it might find that contain information obtained from torture or CIDT.