Lawfare Archive: Can Torture Evidence Be Used at Guantanamo Bay?

From August 8, 2023: Just weeks ago, the U.S. Court of Appeals for the D.C. Circuit upheld the life sentence of a Yemeni national serving out his time at the Guantanamo Bay detention center. He had appealed this life sentence, in part on the grounds that his conviction was based on evidence obtained by torture. Meanwhile, at the Guantanamo military commissions, another detainee tried to appeal charges against him on the basis that torture-obtained evidence was used in his referral for trial by the military commissions—but in June, the body that reviews referrals for trials at Guantanamo denied this appeal. He and his co-defendants are currently set to have pre-trial hearings in October.

All of this is happening despite the fact that in 2022, in a case about a different Guantanamo detainee, the Biden administration’s Justice Department committed to a reinterpretation of a key statute that blocks the use of torture-obtained evidence in Guantanamo litigation and reaffirmed that it would not try to admit statements that the detainee gave while in CIA custody.

So how and why is it that torture-obtained evidence still seems to be being used in certain GTMO cases? To understand the issues, Lawfare Associate Editor Hyemin Han spoke to Scott Roehm, Director of Global Policy and Advocacy at the Center for Victims of Torture, and an Adjunct Professor of Law at Georgetown Law School. They talked about the history of torture evidence at GTMO, dove into a few cases in context of the Justice Department’s 2022 re-interpretation, and discussed what this all might mean for other GTMO detainees moving forward.

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