Trial Judge Destroys Guantánamo’s Military Commissions, Rules That “Clean Team” Interrogations Cannot Undo the Effects of Torture

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By Andy Worthington, August 27, 2023

In an extraordinary 50-page ruling in Guantánamo’s military commissions, Col. Lanny J. Acosta Jr., the judge in the case of Abd al-Rahim al-Nashiri, a Saudi national of Yemeni descent, who is accused of masterminding the terrorist attack on the USS Cole in 2000, in which 17 U.S. sailors died, has refused to allow prosecutors to use self-incriminating statements that al-Nashiri made to a so-called "clean team" of three agents from the FBI, the NCIS and the Air Force Office of Special Investigations on January 31 and February 1 and 2, 2007, five months after he was brought to Guantánamo, having spent nearly four years in CIA "black sites," where he was subjected to horrendous torture.

At the heart of Col. Acosta’s measured and devastating opinion is an appalled recognition that the extent of al-Nashiri’s torture, and its location with a system designed to break him and to make him entirely dependent on the whims of his interrogators to prevent further torture, made it impossible for him to have delivered any kind of uncoerced self-incriminating statement to the "clean team" who interviewed him in 2007.

To establish this compelling conclusion, Col. Acosta painstakingly pieces together a narrative of al-Nashiri’s torture that tells this brutal story in more agonizing and forensic detail than any previous account has done, drawing largely on the accounts of al-Nashiri’s torture in the revelatory 500-page unclassified summary of the Senate Intelligence Committee’s report about the CIA torture program — technically, the Rendition, Detention, and Interrogation (RDI) program — which was released in December 2014, on the testimony of numerous experts called by the defense team in hearings between July 2022 and June 2023, and on the testimony of James Mitchell and Bruce Jessen, two staff psychologists from the U.S. Air Force SERE school, who were recruited to direct the torture program on the ground.

SERE stands for "Survival, Evasion, Resistance, and Escape," and, as Col. Acosta explains, in the SERE schools U.S. service members are "subjected to examples of harsh treatment and the use of coercive interrogation techniques" to "equip [them] with the ability to resist should they be taken captive." However, as he also notes, "neither Mitchell nor Jessen were trained interrogators."

Noticeably missing from the narrative pieced together by Col. Acosta is any meaningful contribution whatsoever from the prosecution team in al-Nashiri’s case. The entire ruling reads like something that his defense team would have written, or a human rights lawyer with a prominent NGO, which is appropriate, as the government quite fundamentally cannot hope to be able to defend any aspect of the torture program.

However, It’s both sobering and chilling to realize that even the trial judge in al-Nashiri’s case was required to draw on the Senate report — for which the CIA and the government were required to provide millions of pages of often incriminating documents telling the otherwise largely unknown details of the torture program — because prosecutors have provided almost nothing voluntarily in the military commissions, which, from their point of view, seem to exist in a parallel world, in which the damning Senate report can be ignored, and in which years of pre-trial hearings have rumbled on inconclusively because the defense teams have been obliged to fight on every front imaginable to secure almost any information at all.

Mitchell and Jessen are rightly credited — or condemned might be a more appropriate word — for creating and maintaining the central cruelty of the torture program: that of a "contract" between the interrogators and their prisoners, based on an understanding that the prisoners’ torture, implemented before any questioning began, would come to an end if they were perceived to be compliant during their subsequent interrogations, but would resume if that compliance was perceived to have slipped.

However, Col. Acosta makes it clear that Mitchell and Jessen — though well rewarded financially — were merely contractors, and that it was the CIA who "developed, with the approval of the Department of Justice (DOJ), a list of 'Enhanced Interrogation Techniques' (EITs) to be used during interrogations of terrorism suspects," including waterboarding (controlled drowning), prolonged sleep deprivation, cramped confinement, and various agonizing stress positions.

Noting that these are "the types of coercive interrogation techniques that have been employed in the past by communist adversaries such as North Korea, the Soviet Union, and China," Col. Acosta spells out what should have been blindingly obvious to the CIA and the U.S. government — that the use of these techniques by a hostile enemy "was to gain the compliance of subjects, more so than to gather useful intelligence." He also notes that, for these regimes, "harsh techniques" were specifically "used to extract false confessions," and that "waterboarding and sleep deprivation, going back to antiquity, have been used in political or religious persecutions to elicit recantations or confessions," and adds, pointedly, "Such techniques do not elicit reliable information."

Al-Nashiri’s torture in the "black sites"

In eleven harrowing pages of his ruling, Col. Acosta runs through the torture inflicted on al-Nashiri in a grisly tour of almost all the "black sites" — in Afghanistan, at the site known by the prisoners as "the dark prison," which Jessen described in testimony in April as "deplorable" and "medieval," and where one prisoner, Gul Rahman, "died of exposure … after being left overnight in cold temperatures wearing only a sweatshirt and after having been doused in cold water"; in Thailand, where he was held for three weeks alongside Abu Zubaydah, the first "black site" prisoner, and where he was waterboarded, with Jessen describing the waterboarding, in his testimony, as "visually and psychologically very uncomfortable for all of those involved," and also describing "a waterboarding session of Abu Zubaydah in which some observers in the room cried while watching the procedure"; in Poland; and at the "black site" in Guantánamo that existed from late 2003 until early 2004, where he undertook a hunger strike, to which "the CIA responded … by 'force feeding' him rectally" with Ensure. Col. Acosta evidently found this particularly appalling, as he notes that, "Since the early twentieth century, medical knowledge has concluded that there is no medical reason to conduct so-called 'rectal feeding.' Although fluids can be absorbed through the rectum in emergencies, food or nutrition cannot."

From Guantánamo, where the "black site," as he notes, was shut down "in anticipation of the U.S. Supreme Court's potential ruling related to detainees in Rasul v. Bush,” al-Nashiri was moved to further "black sites" in Romania, Lithuania, and another prison in Afghanistan before his final transfer to Guantánamo. By 2005, he was clearly struggling to maintain his sanity. In June 2005, the "Chief of Base" in Romania "suspended debriefings of the Accused because it was rare for [him] to recognize any photographs being shown to [him] and the repeat debriefings often caused outbursts," and in July "the CIA was concerned that [he] was depressed, uncooperative, and on the 'verge of a breakdown.'"

At the time of al-Nashiri’s final transfer to Guantánamo, as Col. Acosta notes, "CIA officials diagnosed [him] with anxiety and major depressive disorder," and, as he also explains, "During the entirety of his time in the black sites, [he] had no contact with anyone that was not either an employee or agent of the United States or another detainee. [He] never knew where he was and was essentially held in solitary confinement for the better part of four years."

He also ends his account of al-Nashiri’s "black site" years with a suitably bleak conclusion. "Between 2002 and 2006 in the RDI program," he states, "the Commission finds that the Accused was subjected by the CIA to physical coercion and abuse amounting to torture as well as living conditions which constituted cruel, inhuman, and degrading treatment."

Along the way, Col. Acosta’s account of the "black site" years also reveals the extent to which officials on the ground were regularly overruled by CIA headquarters in Langley when they wanted to stop torturing al-Nashiri because they regarded him as compliant (it happened in Thailand, and in Poland), and how, in Poland, a rogue agent undermined whatever coherence there was to Mitchell and Jessen’s plan for compliance, although it remains clear throughout that Mitchell and Jessen largely retained their control.

As Col. Acosta explains, in Poland, at a debriefing with a female analyst, "Mitchell sat in on the debriefing and encouraged the Accused to cooperate, reminding [him] that they wanted to avoid any more 'hard times' if he failed to cooperate," and throughout his imprisonment either Mitchell or Jessen would conduct "maintenance visits" to "remind detainees to be compliant and to provide information to debriefers when requested." As Col. Acosta adds, "Maintenance visits served as a reminder to the Accused that a failure to cooperate would breach the contract and result in the possibility of returning to the 'hard times,' reimplementation of the EITs. Mitchell and Jessen believed their presence alone, given they had participated in the implementation of the EITs themselves, was enough to encourage compliance [and] would also monitor debriefings, sometimes coming in and out of the room."

Regarding the rogue officer, as Col. Acosta explains, this particular individual, identified as NX2, "took over the interrogation of the Accused, supervising several interrogators who used a series of unauthorized techniques. They placed [him] in a standing stress position with his hands above his head for approximately two-and-a-half days. They put a pistol to [his] head and also threatened [him] with a power drill … At least one interrogator told [him] that [his] mother could be brought in and sexually abused while [he] was forced to watch. [He] was forcibly washed and scrubbed, including his buttocks and genitals, with a stiff boar brush which was then forced into [his] mouth." He later told Dr. Sondra Crosby, an expert regarding the treatment of victims of torture, who was allowed to visit him at Guantánamo, and to meet with him for 30 hours, "that he was sodomized with the brush."

In her subsequent report, Dr. Crosby described al-Nashiri as "one of the most severely traumatized individuals I have ever seen," and her conclusions played a key role in informing a devastating opinion about al-Nashiri that was issued by the U.N. Working Group on Arbitrary Detention three months ago, and which I wrote about in an article entitled U.N. Condemns Arbitrary Detention of Guantánamo Prisoner and Torture Victim Abd Al-Rahim Al-Nashiri, and Calls for His Release.

All of the unapproved torture noted above, it could be argued, detracts from the central focus on Mitchell and Jessen’s obsession with conditioning and compliance, but in fact it serves a significant purpose in highlighting how a supposedly controlled system of specific torture was also wildly and inexplicably brutal, adding to the helplessness experienced by al-Nashiri. Col. Acosta doesn’t sympathize with al-Nashiri on a personal basis, but it’s evident throughout his narrative that he is truly appalled by the way in which any individual could be so thoroughly brutalized, dehumanized and traumatized by representatives of his own government, so that they ended up so broken that they were unable to exercise any free will, when later asked to incriminate themselves non-coercively.

Guantánamo and the "clean team"

After his transfer to Guantánamo, as Col. Acosta explains, al-Nashiri, and the other 13 "high-value detainees," finally had their "first contact with a person who was not an agent or employee of the United States" since their capture, when they "were allowed to meet with the International Committee of the Red Cross," and "all provided similar detailed accounts of the RDI program."

That report, submitted to the CIA on February 14, 2007, was leaked in 2009, but by the time it was submitted the U.S. authorities had firmly shut the door on any other outside interference, having already undertaken the "clean team" interrogation that they hoped would facilitate al-Nashiri’s prosecution.

The three Special Agents were Steve Gaudin of the FBI, Robert McFadden of the NCIS and Kristen (Sendlein) Lange of the Air Force Office of Special Investigations, although, as Col. Acosta notes, back in 2002 Gaudin had been "[p]resent at the site during the implementation of the EITs on Abu Zubaydah" after his capture, and had "participated in the interrogations," the clear inference being that, as a result, he shouldn’t have been part of the "clean team." Col. Acosta also notes that the interview team "had a DOJ attorney assigned" to them, who "monitored the interview and consulted with the agents on breaks."

Everything about the interview was set up to appear voluntary, although Col. Acosta notes that "[t]here is no evidence in the record that the Accused was given a choice about whether or not he would initially meet with the agents," and also notes, "The agents were instructed not to read Miranda rights to the detainees … which Gaudin described as 'not normal.' However, the agents were instructed to obtain a statement that could be used in a criminal or law enforcement prosecution in a military court." As he adds, "The Commission concludes that the agents were instructed not to give traditional Miranda warnings in order to increase the likelihood of obtaining incriminating information from detainees who were being considered for possible criminal charges and trial." In addition, "The agents were instructed, in the event that the Accused were to ask for an attorney, to tell him he was not entitled to one."

As Col. Acosta also explains, "the agents stated they did not work for and were independent from any organization that previously held the Accused," and "told [him] he was in the legal custody of the Department of Defense (DOD) and he would not return to his previous captors. However, unbeknownst to the agents, after the 14 HVDs including the Accused arrived at NSGB [Guantánamo] in September 2006, they were held separately from other detainees and remained under the operational control of the CIA."

Alarmingly, "None of the interviews of the Accused were recorded via audio or visual means. Additionally, no transcript was made of the interview. The only recording of what happened during the interviews is the Letterhead Memorandum (LHM) prepared by the agents, summarizing what the Accused said during the interviews, as well as individual agents’ notes."

According to the LHM, as Col. Acosta explains, "During the three days of interviews, the Accused directly incriminated himself, providing extensive details regarding his direct role in the conspiracy that culminated in the attack on the USS COLE," and at the end of the third day "told the agents that he did not want to continue the interviews as he had nothing more to say."

During the interviews, he also spoke about his torture. He "stated that he had been tortured and specifically mentioned waterboarding. He stated he had been hung from the ceiling for long periods of time, left naked to soil himself, and was submerged in water to the point he felt like he was drowning." The agents, however, didn’t tell him that they had been "instructed to include any allegations of mistreatment by detainees in a separate document recorded on a separate computer." Nor, crucially, did they tell him that "prior statements he made while in CIA custody and while being abused by the CIA interrogators could not be used against him in court."

While the mainstream media briefly paid attention to Col. Acosta’s ruling, none seemed to pick up on the fact that he was responding to a defense motion not only to suppress his "clean team" statements, but also to suppress the statement he made on March 14, 2007 to a Combatant Status Review Tribunal (CSRT), which Col. Acosta described as "a fact-finding proceeding held so that tribunal members could determine whether a detainee should be classified as an enemy combatant," a designation that was required to proceed with any prosecution in the military commissions.

In contrast to the "confession" in his "clean team" interrogation, al-Nashiri told his CSRT, via a prepared statement read out by his personal representative (a member of the military assigned to him), that he was "tortured into confession and once he made a confession his captors were happy and they stopped torturing him," and also "asserted that he made up stories during the torture in order to get it to stop."

He also, specifically, "denied any involvement in the USS COLE bombing," and, "[w]hile [he] admitted that he knew people who were involved in the USS COLE bombing, he insisted that he only had a business relationship with them and did not know what they were planning to do."

Law and analysis

In his analysis, Col. Acosta begins by highlighting how the Military Commission Act establishes, without any doubt, that "[n]o statement obtained by the use of torture or by cruel, inhuman, or degrading treatment … shall be admissible in a military commission," before running through other legal precedents involving torture, including Brown v. Mississippi (1936), in which the Supreme Court held that it was an error for the trial court to receive into evidence statements coerced from the defendants by torture" — in that case, being "mercilessly whipped by a mob that included a deputy sheriff until their backs were 'cut to pieces with a leather strap with buckles on it.'"

Col. Acosta further quotes from the ruling, noting they the defendants "were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed in every matter of detail as demanded by those present … When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment."

The next day, as Col. Acosta explains, "two officials came to hear the free and voluntary confession of these miserable and abject defendants," which were subsequently "used in court to establish the so-called confessions."

As the Supreme Court noted in Brown, with palpable disgust, "in pertinent respects the transcript reads more like pages torn from some medieval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government."

Col. Acosta then, bravely, compares Brown to al-Nashiri’s case, noting that the "significant distinction" between the two cases is "the four-year gap between the worst of the abuses suffered by the Accused and the interviews and proceedings that led to the statements being offered by the Government," which, they claimed, "should be admissible at trial because they were not obtained through torture or coercion and because the circumstances surrounding the making of those statements are sufficiently attenuated from the taint of the abuses inflicted upon the Accused between 2002-2006."

As Col. Acosta proceeds boldly to explain, "The Government's position begs the question of whether, if the Brown defendants had continued to be held in jail for four years, without access to an attorney or anyone other than members of the sheriff's department, while periodically being paid 'maintenance visits' by the mob that tortured them to remind them that they better continue answering questions or risk a return to the 'hard times,' similar confessions made to a different sheriff's deputy, with minimal rights advisement, would be sufficiently attenuated from the torture."

Shockingly for the government, Col. Acosta concludes that, given the extent of al-Nashiri’s torture, and Mitchell and Jessen’s "conditioning," it is completely unreasonable to suppose that any attenuation from the taint of torture is possible. As he explains, "As part of the psychology-based EIT program, the Accused was conditioned through torture and other inhumane and coercive methods by trained psychologists who also participated in the torture to become compliant during interrogations and debriefings. This conditioning was continued through repeated maintenance visits to ensure [he] remained compliant. Therefore, although the EITs may have ceased in 2003, the Accused was subjected to constant reminders by his original tormentors of the unwritten contract, and the fact that a failure to cooperate with debriefers upon demand could lead to a return to the 'hard times.' Unsurprisingly, the Accused continued to make statements while in CIA custody from late 2002 until September 2006. These statements, made during the course of scores of interrogations and debriefings over four years, were not merely unwarned, but instead were actually coerced, with the constant looming threat of 'hard times' to come if the Accused failed to live up to his end of the 'contract.'"

As he adds, "The Government has failed to establish that there was any meaningful relief from those conditions prior to the FBI interview," and, "Having found that the Accused was subjected to torture and other physical and mental abuse which created the coercive conditions in which he gave numerous incriminating statements to the CIA over four years, any subsequent statements made by the Accused are presumptively tainted by the prior statements obtained by torture."

As he also proceeds to explain, "Following four years of essentially solitary confinement in a series of CIA-controlled black sites, including the very location where the LHM statement was taken, the Accused was transferred to DOD custody in September 2006. The LHM was taken four months later. Four months is a considerable amount of time; however, it is a small fraction of time compared to the years the Accused spent held incommunicado in inhumane and degrading living conditions."

"Additionally," as he notes, "the Accused's conditions of confinement improved only incrementally and in small measures from the time he was in CIA custody to the time he was in DOD custody. Aside from two visits with the ICRC once he was returned to NSGB, the Accused was still held in the same location as the former CIA black site where he was previously held and subjected to forced rectal feeding. Additionally, he was still under the complete domination and control of his captors as demonstrated by forced cell extractions and forced grooming [which took place between September 2006 and January 2007]. Under those circumstances, it is difficult to conceive how the Accused would have believed that his circumstances had significantly changed or that the 'contract' was not still in full effect."

In a startling passage summing up the purpose of the "clean team" interrogation, Col. Acosta notes how carefully and cynically it was crafted. As he states, "U.S. law enforcement agents arrived in January 2007 with the purpose of obtaining incriminating statements from the Accused. A prosecution team was in place and likely knew that [his] prior statements during the RDI program would never be admissible in any trial. The solution to that problem was to obtain new incriminating statements. To obtain new statements that could be used in court, the prosecution team came up with a rights advisement for the agents to provide to the Accused, which was carefully constructed to strike a balance between avoiding outright coercion but also leaving the Accused in the dark in several important respects. Despite demonstrating, on numerous occasions, the ability to provide a full rights advisement to other detainees in foreign countries, including during interviews of alleged Qaeda operatives Owhali, Badawi, and Quso [in connection with the 1998 African Embassy bombings], the U.S. government, including the DOJ and the CIA, chose to create a specific and limited rights advisement for the Accused. For example, [he] was not to be advised that he could consult counsel. That right would have to wait until after he further incriminated himself and the Government got around to charging him with crimes. Additionally, the rights advisement failed in one major respect: it did not notify [him] that his prior statements, which were obtained through torture, could not be used against him at any future trial."

Yes, you read that correctly: al-Nashiri was "not … advised that he could consult counsel," because "[t]hat right would have to wait until after he further incriminated himself and the Government got around to charging him with crimes."

In a subsequent paragraph, Col. Acosta brings vividly to life how al-Nashiri could have had no way of knowing that his former torturers were not waiting to ambush him once more. As he states, "The Government urges the Commission to conclude that the Accused should have been or was aware that his conditions had changed in some meaningful way. While it is true and the Commission finds that the agents that conducted his January-February 2007 statements treated the Accused with fairness and respect and did not subject him to any form of coercion, this fact alone does not necessarily erase all that had come before. The Accused, having been required to answer the questions of various debriefers over the years under the threat of return to the 'hard times,' could not be expected to ascertain whether Agents Gaudin, McFadden, and Sendlein were actually from a different agency than the one that had tortured him for years. He was in no position to know whether Drs. Mitchell and/or Jessen were watching the interviews in the next room and prepared to intervene with more abusive treatment should he violate the contract. He had no reason to doubt that he might, without notice, suddenly be shipped back to a dungeon like the ones he had experienced before. He had no real reason to know whether NX2 lurked nearby with a pistol, a drill, or a broomstick in hand in the event he chose to remain silent or to offer versions of events that differed from what he told his prior interrogators."

In conclusion, Col. Acosta states, "The Commission finds that the Government has not met its burden to establish that the statements made by the Accused between 31 January 2007 and 2 February 2007 were made voluntarily." In one of the few phrases picked up by the mainstream media, he adds, "Even if the 2007 statements were not obtained by torture or cruel, inhuman, and degrading treatment, they were derived from it."

As he also notes, "Exclusion of such evidence is not without societal costs. However, permitting the admission of evidence obtained by or derived from torture by the same government that seeks to prosecute and execute the Accused may have even greater societal costs. Permitting admission of this evidence would greatly undermine the actual and apparent fairness of the criminal proceeding against the Accused in this case and infect the trial with unfairness sufficient to make any resulting conviction a denial of whatever process is due."

At the very end of his ruling, Col. Acosta adds that, although he is suppressing the "clean team" statements, he is allowing the statement al-Nashiri made to his CSRT, because, by that time, it was clear that he believed that "he faced no further danger from his former interrogators," because "he denied much of what he previously told interrogators and investigators from 2002 through 2007" — for example, "having anything to do with the bombing of the USS COLE," and "being a member of Al Qaeda."

Calling for a plea deal for al-Nashiri

It remains to be seen whether prosecutors will challenge the ruling, but it would seem to be a vain hope that Col. Acosta’s opinion can be easily overturned, drawing, as it does, on so much expert testimony over the last year.

Its implications not only seem to derail al-Nashiri’s prosecution; they also cast a shadow over the prosecution of the five men accused of involvement in the 9/11 attacks, who were also subjected to "clean team" interrogations after their arrival at Guantánamo from the "black sites."

The way out from this definitive demonstration that torture cannot be sanitized must, surely, be for the authorities to finally accept unconditionally that trials are untenable, and to focus instead on the plea deals that have already been underway for the 9/11 accused since last year, taking the death penalty off the table, and constituting a recognition by prosecutors that, however much they may wish otherwise, the use of torture has made their case unwinnable. After Col. Acosta’s ruling, it now seems abundantly clear that plea negotiations should also begin in al-Nashiri’s case.