Tortured Evidence and Terrorist Blacklists
By JOANNE MARINER
|Monday, April 20, 2009
The Obama administration's release last week of four Bush-era memos on the abusive interrogations of detainees in U.S. custody has raised a host of questions. The memos, written by Justice Department attorneys, purport to authorize CIA interrogators to use a range of coercive techniques against detained terrorism suspects, even techniques that constitute torture under U.S. and international law.
The first and perhaps most compelling question is whether U.S. officials should be prosecuted for carrying out acts of torture, authorizing the use of torture, or ordering that torture be used. The administration was quick to suggest that it would not initiate such prosecutions, a move criticized by human rights groups and others.
The Center for Constitutional Rights, which represents a number of detainees at Guantanamo, emphasized the deterrent effect of prosecutions. By prosecuting these abusive techniques as crimes, the government would ensure that they would not be used in the future. Conversely, "[f]or there to be no consequences not only calls our system of justice into question, it leaves the gate open for this to happen again."
Another important question raised by the memos is what happened to the information that was obtained using torture. Was it used only preventively—to provide leads about possible future plots? Or was this tainted—and likely quite unreliable—information used in legal proceedings that affected people's rights?
Court and Other Legal Proceedings
The rules on admissibility of evidence vary dramatically from forum to forum. While the U.S. federal courts bar evidence obtained under torture or other coercion, not all legal proceedings have such strict protections.
Of greatest concern are proceedings in which the evidence is kept secret. Secret evidence is often synonymous with tainted evidence, since without the safeguards imposed by the adversarial system, it is easier for the government to throw in whatever evidentiary garbage it wants.
It is no secret that the administrative decisions regarding the continued confinement of individual detainees at Guantanamo were, in many cases, based on unreliable evidence obtained via torture. For example, statements coerced from Mohammed al-Qahtani, a detainee whose prolonged physical and psychological abuse is documented in a government interrogation log, were used in the administrative proceedings of at least 30 other prisoners.
We also know that the U.S. government provided information obtained from Abu Zubayda, the detainee whose planned abuse by the CIA was described in one of the recently-released memos, to the Canadian government for use in at least two deportation cases. (To their credit, the Canadian courts barred the information from being admitted as evidence.)
In addition, this abusively-obtained information was almost certainly used in the blacklisting of individuals and groups allegedly linked to terrorism.
Domestically, the U.S. government maintains several State Department and Treasury Department lists that are meant to block funding to terrorism and bar suspected terrorists from traveling. Internationally, there is a UN list—known as the "1267 sanctions list"—with a similar purpose. That list includes a large number of individuals and groups who were placed on the list by the United States.
Notably, all of these lists are created using lower standards of proof than those that are customary in criminal prosecutions, as well as much lower due process protections. Targeted persons and organizations have little or no prior notice of their listing and little meaningful opportunity to challenge the designation.
Because listing decisions are made on the basis of secret evidence, it is near-impossible for targets to disprove claims of links to terrorism. And targets have no way of finding out the source of the evidence—including whether it was obtained from detainees in CIA custody.
It seems quite unlikely, of course, that the U.S. government would provide such information to the Canadian government for use in their legal proceedings, while refraining from using it as a basis for U.S. terrorism blacklist decisions.
A notable hint about the sources of evidence for such decisions is contained in an October 2003 press release from the Treasury Department that purports to explain the listing of the Al Akhtar Trust. The press release says: "During a custodial interview in mid-April 2003, a senior Al Qaida detainee stated that Al-Rashid Trust and AL AKHTAR TRUST provided donations to Al Qaida …."
While it is impossible to know with certainty the circumstances of this particular "custodial interview," we know quite a lot about the kinds of interrogations that were going on at the time. Khalid Sheikh Mohammed and several other CIA detainees were arrested in March and April 2003, and at least Mohammed was subjected to waterboarding.
Not only did the US put the Al Akhtar Trust on the Treasury Department blacklist, it later placed the group on the UN's 1267 list.
Tainted and Unreliable
We should not forget the most infamous use of information obtained abusively by the CIA, as it speaks volumes about such information's unreliability. Ibn al-Sheikh al-Libi, a detainee who was rendered by the CIA to Egypt, claimed under torture that he knew of links between Saddam Hussein and al-Qaeda. Then-Secretary of State Colin Powell even used this information in his speech to the United Nations justifying the invasion of Iraq.
As we all know, the claim turned out to be false. Al-Libi himself later repudiated it, explaining that his interrogators forced the statements out of him.
Information obtained via torture is deeply tainted, and should not be used in legal or administrative proceedings of any kind. Not only should the U.S. government bar reliance on such evidence in the future, it should take steps to remedy past uses of it.
Joanne Mariner is a human rights attorney based in New York. Her previous FindLaw columns are available in FindLaw's archive.