The CIA’s torture of a Guantanamo Bay detainee accused of planning the USS Cole bombing tainted his later confessions to federal law enforcement agents, a military judge ruled on Friday.
The critical pretrial ruling by Army Col. Lanny Acosta suppressed the statements that Abd al Rahim al Nashiri made to FBI and NCIS agents in early 2007 on Guantanamo Bay, roughly four months after his transfer from CIA black sites. As a result, the government will be barred from using the confession at a still-unscheduled trial at which al Nashiri could face a death sentence for his alleged role in the October 2000 attack that killed 17 sailors off the coast of Yemen.
“The Commission’s ruling excludes a critical piece of the government’s case, and in doing so, recognizes the continuing and very real effects of Mr. al Nashiri’s torture,” Katie Carmon, one of al Nashiri’s civilian lawyers with the Military Defense Commissions Organization, said. “Today, the government learned it cannot benefit from its willful disregard of Mr. al Nashiri’s humanity.”
A spokesperson for the military commissions provided a statement that said the prosecution was reviewing the rulings.
"It would be inappropriate to comment on the case while litigation is ongoing," the statement read. "The prosecution in that case remains committed to seeking justice for the families of the victims of the USS Cole.”
Acosta found that al Nashiri’s treatment by the CIA amounted to torture and that any subsequent statements were “presumptively tainted” unless the government had been able to prove they were “sufficiently attenuated” from the prior torture. Acosta found the government failed to prove that attenuation, though finding the FBI and NCIS agents used traditional interview techniques and treated al Nashiri with respect over multiple sessions at Guantanamo between Jan. 31 and Feb. 2, 2007.
“Any resistance the Accused might have been inclined to put up when asked to incriminate himself was intentionally and literally beaten out of him years before,” Acosta said.
Acosta cited testimony by two former CIA contract psychologists, Drs. James Mitchell and Bruce Jessen, who subjected al Nashiri to a number of “enhanced interrogation techniques,” including waterboarding and use of cramped confinement boxes, among others. Acosta said that al Nashiri understood there was a “contract” with his interrogators – that he would return to the “hard times” if he ever stopped cooperating with his captors.
Acosta also referred to conduct by a CIA agent referred to in court as “NX2,” whose team subjected al Nashiri to several techniques that were not approved by lawyers from the administration of then-President George W. Bush. Those techniques included placing al Nashiri in dangerous stress positions, threatening him with execution and telling him they could sexually abuse his mother in front of him. CIA personnel also subjected al Nashiri to medically unnecessary rectal feedings, which his defense team said created long-lasting sexual trauma and contributed to his PTSD.
The judge reasoned that, during his interviews with FBI and NCIS agents on Guantanamo Bay, al Nashiri could not know whether Mitchell and Jessen were watching from a nearby room to enforce the contract.
“He had no reason to doubt that he might, without notice, suddenly be shipped back to a dungeon like the ones he had experienced before,” Acosta said. “He had no real reason to know whether NX2 lurked nearby with a pistol, a drill, or a broomstick in hand in the event he chose to remain silent or to offer versions of events that differed from what he told his prior interrogators.”
Acosta’s ruling was not a complete defense victory. He denied a defense effort to suppress the statements that al Nashiri made to the Combatant Status Review Tribunal, or CSRT, on March 14, 2007. The Bush administration established the CSRT process to determine whether Guantanamo Bay detainees should be designated as “enemy combatants.”
Al Nashiri had a non-lawyer personal representative to assist with his presentation at the hearing. During the proceeding, al Nashiri denied playing a role in the USS Cole bombing while admitting to knowing some of the suspected participants and having earlier met with Osama bin Laden. Acosta determined that al Nashiri made those statements voluntarily.
Acosta is expected to retire at the end of this month, and the prosecution could file a motion for his successor to reconsider the ruling. Beyond that, the prosecution could appeal the ruling to the commissions appellate court, the Court of Military Commission Review. The U.S. Court of Appeals for the D.C. Circuit hears appeals arising from that court. The next pretrial hearing in the USS Cole case is scheduled to start Oct. 16.
Friday’s ruling follows years of contentious pretrial litigation that picked up significantly with the resumption of proceedings in September 2021, after a year-and-a-half of pandemic-induced delays.
Al Nashiri’s defense team, led by Anthony Natale, used testimony by Mitchell in May 2022 and Jessen in April of this year to show the extensive abuse suffered by the detainee in CIA custody. During those hearings, Jessen and another al Nashiri lawyer, Annie Morgan, reenacted an interrogation scene in which Jessen ordered Morgan into a small confinement box similar to the one used for al Nashiri.
The government, meanwhile, used testimony by FBI Agent Stephen Gaudin and NCIS Agent Robert McFadden, who conducted the early 2007 interrogations of al Nashiri on Guantanamo Bay, to portray the sessions as voluntary. A forensic psychiatrist also testified as a government witness during the April hearing that al Nashiri exhibited “free will” during the sessions.
In his ruling, Acosta noted that the government’s attenuation theory was further undercut by the fact that al Nashiri spent time on Guantanamo Bay in 2003 and 2004 when the CIA used a portion of the detention facility as a black site.
“The FBI interview in 2007 actually occurred in the same complex – and perhaps even the same cell – and where the Accused was subjected to abuses such as ‘rectal feeding,’” Acosta explained in a footnote.
In addition, he wrote, the guard force at the Guantanamo Bay detention facility subjected al Nashiri to numerous “forced cell extractions” in the months before his sessions with federal agents on Guantanamo Bay. (At the June hearing, prosecutors disclosed the existence of videotapes of these forced removals for noncompliant behavior.)
“Not unlike how the contract operated in the [CIA interrogation] program, the guard force responded with the overwhelming physical force of FCEs to assert control over him when the Accused was noncompliant or misbehaved in some way,” Acosta said.
Acosta's ruling is another sign of the hill the government will be forced to climb in prosecuting former CIA detainees. In October 2021, a jury of military officers asked for leniency at the sentencing hearing for convicted al Qaeda courier Majid Khan after hearing his own graphic account of CIA torture.
The military commission system’s biggest case – that against the five detainees accused of planning the 9/11 attacks – has been largely on hold since the defense teams and prosecutors entered into plea talks in March 2022. The judge in that case, Air Force Col. Matthew McCall, has scheduled a three-week hearing starting Sept. 18 as the parties await final input or determination by the Biden administration on certain deal terms.
Hearings in the 9/11 case were last focused on claims that defendants' confessions should be suppressed because of torture; those hearings were halted during the pandemic. Next month, McCall is expected to resume witness testimony related to statements the defendants made to FBI agents on Guantanamo Bay in early 2007.
James Connell, the lead lawyer for Ammar al Baluchi, who is charged in the 9/11 case, said that Acosta’s ruling “has to have an effect throughout the military commissions” because it rejects “the foundational argument” put forth by the government – that “a sharp line” existed between CIA torture and the subsequent FBI interrogations.
“That is the whole reason we are in the military commissions,” Connell said. “The ruling rejected that foundational principle of these prosecutions.”
About the author: John Ryan (firstname.lastname@example.org) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. His book on the 9/11 case is scheduled for publication in March 2024.