Torture’s Damage in Guantanamo Cases Goes Far Beyond Evidence

The use in legal proceedings of information obtained by torture has long been proscribed under domestic and international law. Yet, US prosecutors with the convening authority—the body tasked with charging Guantanamo Bay detainees—persist in trying to prevent courts from squarely holding that the government is prohibited from using information derived from the torture that occurred at CIA black sites and Guantanamo.

On behalf of distinguished international medical doctors, psychologists, and professors with expertise on the treatment of torture victims and the study of torture’s effects, we recently submitted an amicus brief on behalf of detainee Encep Nurjaman.

Nurjaman was apprehended on suspicion of funding terrorist activities and was charged in 2017, some 10 years after his transfer to Guantanamo and 14 years after he was initially taken into custody. He is challenging his referral for trial before a military commission by petition for a writ of mandamus before the U.S. Court of Appeals for the D.C. Circuit.

The brief explains that the government’s torture and use of torture-derived evidence not only is contrary to law, but also causes unique physical, psychological, and systemic harms that fundamentally degrade the judicial system and make it less reliable.

That torture is morally and legally wrong is well known; that it renders our justice system much less reliable should be better understood and accepted.

Impact of Torture

Nurjaman and other Guantanamo Bay detainees were indisputably subjected to extensive torture, including physical and sexual abuse and psychological torture. Though the goal was to “break” them to gather information, the result was the irreversible deterioration of their cognitive, emotional, and behavioral functions.

Contrary to popular belief, torture isn’t an effective means of extracting information. In fact, torture actually decreases individuals’ capacity to provide reliable information.

Many torture victims suffer traumatic brain injuries and chronic conditions such as post-traumatic stress disorder and comorbidities such as sleep disorders, chronic pain, anxiety, depression, and cognitive impairment. These symptoms create an altered state of mental and physical health. These impairments affect many detainees for the rest of their lives. In addition, a victim’s ability to trust people or maintain social relationships, including with their own legal representatives, can be impaired.

Torture-Derived Evidence

In addition to being illegal, morally wrong, and anathema to the underpinnings of our rule of law, torture pervasively undermines the judicial system and makes it less reliable.

Torture impairs the ability of a victim to participate as a party. Cognitive impairment, confusion, memory loss, false memories, inability to concentrate, withdrawal from social contact, and avoidance of reminders of trauma can render a victim of torture unable to participate meaningfully in their own defense. Torture victims, for example, often unintentionally provide false or unreliable information, including false confessions.

Torture interferes with a victim’s ability to obtain effective representation of counsel. Unlike other clients, torture victims may be deprived of “sufficient present ability to consult with [their] lawyer with a reasonable degree of rational understanding.” That can substantially interfere with the victim’s capacity to engage effectively in analysis and discussion of evidence in advance of trial.

Many victims of torture can’t reliably recall past events due to a tendency to avoid stimuli associated with their prior trauma. Some may also be more likely to distrust others, including their counsel, or have diminished social skills, further eroding the attorney-client relationship.

Torture interferes with the workings of the criminal legal system. As General John G. Baker, chief defense counsel of the Military Commissions Defense Organization, testified, “the government’s fear that the truth [of its use of torture] will become public . . . most undermined the commission processes.” As a consequence, the government prosecuted matters ex parte, suppressed evidence from defense counsel, and eavesdropped on defendants’ communications with counsel.

Torture is contrary to basic conceptions of ethics, humanity, decency, and ordered liberty. The imposition and use of torture has led professionals to stray—if not clearly violate—their ethical obligations. For example, the medical professionals at Guantanamo Bay failed to report detainees’ obvious physical and psychological injuries, violating the American Medical Association’s ethical requirements and their Hippocratic oath. The use of torture creates an ethical cloud over the lawyers whose advice led to the government’s use of coercive interrogation techniques because they were obligated to ensure that their advocacy doesn’t harm the system, particularly where it may escape judicial review.

A court’s use of torture-derived evidence shouldn’t be reviewed under harmless-error doctrine. In Nurjaman, the military appellate court found that the prosecutors’ consideration of torture-derived statements was “harmless error” beyond a reasonable doubt because other evidence supported the charges. That analysis has no place and is wrong.

As Nurjaman argues, there’s legal support for rejecting the harmless-error standard where, as here, the error “undermines the structural integrity of the criminal tribunal” that its fundamental legitimacy is called into doubt.

The government’s practice of torture and its use of torture-derived evidence can never be harmless because it severely degrades the functioning and reliability of our judicial system.

The case is In re Nurjaman, D.C. Cir., No. 23-1294, gov’t response due 2/7/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

John S. Summers is a shareholder and chair of Hangley Aronchick Segal Pudlin & Schiller’s litigation department.

Andrew M. Erdlen is a shareholder with Hangley Aronchick Segal Pudlin & Schiller where he litigates complex commercial disputes.

Alex Egervary and Michael Masciandaro contributed to this article.

The authors have filed several briefs on behalf of amici curiae in support of Guantanamo Bay detainees on torture-related issues.

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