On March 24, 2006, the General Counsel of the Department of Defense issued Military Commission Instruction No. 10, “Certain Evidentiary Requirements” in response to growing public concern that evidence acquired through torture might be admissible in military commission proceedings. According to the Pentagon, the Instruction “acknowledges” the United State’s obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This is a welcome development, since the United States has not previously acknowledged the applicability of the Convention against Torture to the military commission proceedings. Nevertheless, while the Instruction prohibits the use of evidence acquired by torture, it contains few safeguards to make the prohibition meaningful. Moreover, the Instruction does not bar the use of evidence acquired by abusive interrogations that fall short of torture but nonetheless violate the prohibitions against cruel, inhuman or degrading treatment in the Convention against Torture as well as in the International Covenant on Civil and Political Rights (ICCPR).
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The Bush Administration keeps tinkering with the military commissions, making small improvements when forced to do so. It is time it stop tinkering. The military commissions were not created to ensure justice, and they will not do so. The rule of law and the quest for justice would both be far better served by bringing defendants to trial before courts-martial or federal courts.
Why is a prohibition on evidence obtained through torture so important?
Everyone has a right to be free from torture and other cruel, inhuman or degrading treatment. Please see our earlier Q&A on torture here. To protect this right, as well as the right to fair trials, human rights standards prohibit the use as evidence in a trial of statements acquired through torture or other cruel, inhuman or degrading treatment.1
Furthermore, everyone has a right not to be compelled to confess guilt or to testify against himself. An effective ban on the use of evidence obtained through torture and other cruel, inhuman or degrading treatment is essential to protect this right.
U.S. courts-martial and civilian courts do not permit the use of evidence acquired through torture.
What does the new Instruction do?
The new Instruction tells the prosecutor not to offer any statement determined by the prosecution to have been made as a result of torture. It also instructs the commission not to admit as evidence statements established to have been made as a result of torture, except in proceedings against a person accused of torture.
Does the Instruction prohibit evidence acquired through cruel, inhuman or degrading treatment?
No. It only prohibits the use of evidence acquired through torture. Cruel, inhuman and degrading treatment is prohibited by international law as well as U.S. law, specifically by the McCain Amendment. Under the new Instruction, the prosecution could introduce statements acquired by forcing chained detainees to sit in their own excrement, subjecting them to blaring music, leaving them in painful contorted positions for hours on end, or depriving them of sleep for days. Allowing evidence obtained by such prohibited treatment to be used in a trial implicitly condones such conduct, and provides a prosecutorial incentive for its use. Human rights standards also prohibit the introduction of such evidence.
In addition, as Human Rights Watch has pointed out before, there is no practical way to determine where cruel, inhuman or degrading treatment ends and torture begins.2 The failure to prohibit evidence acquired through the former undermines the prohibition against the latter. By what standard is the prosecution supposed to determine whether an interrogation only violated the prohibition against cruel, inhuman or degrading treatment but did not cross the line into torture?
How does the prosecution determine if a statement is the result of torture?
Unclear. The Instruction does not indicate what the prosecution should do if there is a possibility the statement was acquired through abuse. If the defense suggests the statement was the result of abusive interrogations, the rules do not establish whether the prosecution must conduct its own inquiries and provide the results to the defense and the commission.
The instruction provides no guidance on whether the prosecution must make its own independent determination of whether interrogation methods constituted torture, or whether it accepts determinations made by others, e.g. those conducting the interrogations, or senior Pentagon or Department of Justice officials. The administration has refused to consider water-boarding—simulated drowning—a form of torture, even though it is otherwise universally recognized as such. May the prosecutor introduce evidence acquired through water-boarding? Is it obliged to tell the defense that the statement was acquired by water-boarding—so that the defense may argue before the commission that such treatment constitutes torture?
How can the defense find out if a statement was made by torture?
Only with extraordinary difficulty. The military commission rules permit evidence to be used even if the person who made the statement is not brought to court to testify. Prosecutors can offer second- or third-hand accounts of what a person said. For example, the prosecution can present a U.S. or even foreign intelligence agent who will testify as to what a person said during interrogation, and that recounted statement can be admitted as evidence. The prosecution can also present a written statement by someone who does not appear in court. How can the defense determine if the people making the statements introduced as evidence were tortured if they do not appear as witnesses in court, or if the defense is not otherwise permitted to question them?
U.S. federal, state, and military justice systems prohibit second- and third-hand evidence, with some limited exceptions, considering it inherently unreliable, and unfair to the accused.
How will the commission decide a statement was made as a result of torture?
Unclear. The Instruction is silent regarding who—prosecution or defense—has the burden to prove evidence was the result of torture. It is silent on the standard by which the commission will determine who has prevailed. Elsewhere, commission rules instruct the panel to consider evidence that is probative to a reasonable person. The Instruction also fails to indicate whether the commission on its own may make inquiries and whether the U.S. government must provide the information the commission requests to determine whether a statement was extracted through torture.
Does the instruction address the use of evidence investigators found because of statements obtained under torture—the “fruit of the poisonous tree”?
No. An investigator can subject someone to torture, then use that information to find other evidence—either statements or real evidence, like a computer or a weapon—that can then be introduced into evidence in the military commission. This “fruit of the poisonous tree” is not allowed in courts-martial or U.S. civilian criminal proceedings.
What if the prosecutor determines a statement was made as a result of torture?
The prosecutor is barred from offering such statements as evidence. The new instruction does not address the responsibility of the prosecutor to take any further steps to ensure that those responsible for using such methods are brought to justice. International standards regarding prosecutorial conduct, and the prosecutor’s responsibility for enforcing the law, require these affirmative steps.
How do courts-martial handle statements obtained through coercion?
In the U.S. military justice system, an involuntary statement obtained through the use of coercion generally may not be received in evidence against an accused who made the statement. The accused must move to suppress, or object to the evidence. If the military judge thinks there is sufficient doubt about the statement, the prosecution—the party with the best access to the story behind the statement—then has the burden of establishing the admissibility of the evidence. The military judge must find by a preponderance of the evidence that a statement by the accused was made voluntarily before it may be received into evidence.
Statements of witnesses not present before the court are presumptively inadmissible. The proponent must show the statement meets limited exceptions to this rule designed to weed out questionable evidence.
How do the new instructions define “torture”?
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as:
- [A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.3
The new instructions use a definition of “torture” adopted by the U.S. government when it signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1994:
- [I]n order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and … mental pain or suffering refers to prolonged mental harm caused by or resulting from:
(1) the intentional infliction or threatened infliction of severe physical pain or suffering;
(2) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(3) the threat of imminent death; or
(4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. 4
This definition is narrower than that used in the Convention against Torture. It excludes, with few exceptions, mental torture that is not accompanied by physical torture. For example, the definition might allow into evidence statements made by a detainee, who fears he is going to receive electric shocks when he is forced to wear a hood and stand on a box with electrical wires attached to him. It permits evidence acquired from a detainee subjected to prolonged incommunicado detention in which he saw no one but his interrogators for months.
Furthermore, the Bush administration refuses to reject as torture certain practices that the United States and the international community have long regarded as torture. For example, as noted above, administration officials have refused to condemn as torture a devastating mock execution known as “water-boarding,” in which interrogators immerse a detainee’s face in water or pour water over it until he believes he will suffocate or drown. For additional techniques authorized by the CIA, see “Descriptions of Techniques Allegedly Authorized by the CIA”.
Unless the prosecution or the commission decided to take a stance contrary to the administration, statements extracted through water-boarding could be used to convict an accused, and could even lead to a death sentence. The new Instruction does not prevent the commission from convicting someone on the basis of evidence obtained through torture—even sentencing them to death.
[1] According to the Convention Against Torture, Article 15: “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” (Article 15, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987). According to the Declaration against Torture, Article 12: “Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence against the person concerned or against any other person in any proceedings.” (Article 12, Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 3452 (XXX), annex, 30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1975).) The Guidelines on the Role of Prosecutors, Guideline 16, states:
- When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect's human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.
(Guideline 16, Guidelines on the Role of Prosecutors, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 189 (1990).) The UN Human Rights Committee, which monitors compliance with the ICCPR, stated in its General Comment 20 on article 7 that “the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.” (General Comment No. 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art. 7): 10/03/92. CCPR General Comment No. 20.) In other contexts the HRC has said that “[t]he law should require that evidence provided by…any…form of compulsion is wholly unacceptable” and that “[c]onfessions obtained under duress should be systematically excluded from judicial proceedings.” (Concluding Observations of the Human Rights Committee: Georgia. 05/05/97. CCPR/C/79/Add.75).
[2] See for instance: “Torture Not an Option,” Human Rights Watch backgrounder and “License to Abuse Would Put CIA above the Law,” a Human Rights Watch press release.
[3] Convention Against Torture, General Assembly resolution 39/46, entered into force on June 26, 1987, in accordance with article 27 (1), available online here. The Convention against Torture has been ratified by a total of 140 countries, including the United States.
[4] U.S. Department of State, Initial Report of the United States of America to the UN Committee Against Torture, Annex I, U.S. Reservations, Declarations, and Understandings and Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, available online here.
