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Use of Evidence Gathered Through Torture or Ill-Treatment

The commission rules themselves do not prohibit the use of evidence that was gathered via coercive techniques of interrogation. Torture and cruel or inhuman treatment are absolutely prohibited under international law, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994. The United States is under an affirmative obligation to ensure that any statements made as a result of torture shall not be invoked as evidence in any proceedings whatsoever.³⁶ Despite evidence that the Bush Administration has approved and used coercive interrogation tactics on detainees at Guantanamo Bay and elsewhere, it is far from clear whether defendants will be able to prevent consideration by military commissions of evidence gathered through such methods.

Under the commission rules, the standard for admission of evidence is simply whether, in the opinion of the Presiding Officer or majority of commission members, the evidence “would have probative value to a reasonable person.”³⁷ Despite the widely recognized unreliability of information gleaned from torture and ill-treatment, defendants may not be able to challenge successfully the voluntariness of information they themselves may have provided to interrogators. Moreover, the defense is unlikely to learn whether evidence was obtained from coercive interrogation of other detainees, whether held at Guantanamo or elsewhere, because the witness need not be brought before the commission; a hearsay account of what he said could be introduced into the evidence instead. Defense counsel therefore will be hard pressed to challenge the circumstances under which such third-party evidence was obtained.