In Guantanamo cases, is the government trying to profit from torture?

Twenty-one years ago today, the United States began shipping droves of Muslim men to the U.S. Naval Station Guantanamo Bay, a remote military base on Cuba’s southern coast. The George W. Bush administration evidently chose this location hoping that it would put the men beyond the reach of U.S. courts — in the words of at least one government official, because Guantanamo was “the legal equivalent of outer space.” 

In some respects, that proved wrong. The Supreme Court ruled that the men must have access to lawyers, and the ability to challenge their detention in federal court. But in others, it was prescient. Indeed, in the makeshift Guantanamo war court system known as the military commissions, the government has sought to defy basic foundations of a civilized legal system by relying on evidence obtained by torture, and the commissions largely have obliged. 

Torture is a crime under United States and international law, whether committed in time of war or peace. It is universally condemned and categorically prohibited. So, too, is the use of evidence tainted by torture, in any forum and for any purpose other than against the individual who committed the torture. And yet, last May, military commission prosecutors made news when they openly defended using evidence obtained by torture in a death penalty case against a person the United States tortured.

Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) and then-Senate Appropriations Committee Chairman Patrick Leahy (D-Vt.) read the reports and were astounded. They had assumed that although much about the CIA’s so-called “enhanced interrogation” program remains secret, and there has been precious little accountability for post-9/11 U.S. torture, years of congressional and executive branch action — on top of already black letter law — had shut the door on any act that fails to reject torture, unequivocally, in all of its forms. 

Indeed, between 2005 and 2015, Congress passed the Detainee Treatment Act (further outlawing cruel, inhuman or degrading treatment); the revised Military Commissions Act (intended to bring the military commissions in line with the rule of law generally, and specifically to tighten the rules on excluding evidence obtained through coercion); and legislation sponsored by the late Sen. John McCain (R-Ariz.) and Sen. Dianne Feinstein (D-Calif.), which restricts U.S. interrogators to an exhaustive list of humane interrogation methods. 

President Obama officially ended the CIA torture program and formally repudiated the legal reasoning that justified it. President Trump promised to bring back torture but was soundly rebuffed — including by then-House Speaker Paul Ryan (R-Wis.) and then-Senate Majority Leader Mitch McConnell (R-Ky.) — and never did. For his part, President Biden twice has publicly affirmed the United States commitment to the prohibition on torture and “pledge[d] the full efforts of the United States to eradicate torture in all its forms.” 

Hoping that what happened in the military commissions was a grave error resulting from lax oversight, the senators wrote to the Attorney General, the Secretary of Defense, and the Secretary of State seeking clarification. The Department of Justice responded by explaining that, while it agrees torture-tainted evidence is prohibited in some instances, it might not be in others and so the department would wait for aspects of the issue to play out in the commissions and “articulate its position in future fillings.” 

That ambivalent response has had foreseeable consequences: There are now multiple cases pending before U.S. courts raising questions that should not need asking — such as whether torture-obtained evidence can be used when sentencing a defendant in the military commissions; whether such evidence can provide part of the justification for referring criminal charges against the person who was tortured; and to what extent the government can admit evidence discovered as a result of statements extracted through torture, even if not the statements themselves. We are among a group of scholars, former United Nations Special Rapporteurs on torture, retired military and intelligence officers, and human rights advocates who have filed friend of the court briefs in several of these cases.

Up to now, the government has come down on the wrong side of these questions, whether affirmatively or by trying to duck the issue. When it comes to an obligation so fundamental — respect for the prohibition on torture — the latter is no better than the former. The good news is that it isn’t too late to change course. All it requires to get this right is take a step back, stop searching for wiggle room where none exists, and follow the law.

Scott Roehm is the Washington director for the Center for Victims of Torture, and an adjunct professor of law at Georgetown University Law School. Follow him on Twitter @ssroehm.

Jonathan Hafetz is a professor of law at Seton Hall University School of Law. Follow him on Twitter @JonathanHafetz.