When Congress laid out rules for military tribunals, it decreed that "no statement obtained by the use of torture or by cruel, inhuman, or degrading treatment, whether or not under color of law, shall be admissible in a military commission." But in what may be a first, a military judge presiding in the long-delayed death penalty case of Abd al-Rahim al-Nashiri, a Saudi detainee of Guantanamo Bay accused in the 2000 bombing of the USS Cole, says he will permit classified information al-Nashiri gave to the CIA under torture in 2002. Defense lawyers and law experts alike are troubled by last month's ruling, per the New York Times. Acknowledging such information is "necessarily of highly suspect reliability," Army Col. Lanny J. Acosta Jr. ruled that prosecutors could use it "but only to provide context on a discovery issue in dispute."
Prosecutors had cited the information in an attempt to block defense lawyers from pursuing a line of questioning about two al-Qaeda operatives "who might be alternative suspects in the crimes of which al-Nashiri is accused," Georgetown law professor David Luban writes at Just Security. Defense lawyers say al-Nashiri's comments came as agents used a broomstick on him in a way (unspecified) that caused him to cry out. Acosta determined the information should be excluded from trial, but not other proceedings. He cited a section of the same statute barring information obtained through torture, noting "a statement of the accused may be admitted in evidence in a military commission" under certain conditions, as though it superseded the former, Luban writes. And with that, it seems "statements obtained by torture ... can now be used for any purpose other than trial." (Read more military commissions stories.)