Balkinization: The Clean Team and the Stain of Torture

The Clean Team and the Stain of Torture

David Luban

Yesterday's Washington Post and today's New York Times both report that some of the evidence against the six Guantanamo defendants charged with perpetrating 9/11 comes from re-interviews by the FBI's "Clean Team" – a group of investigators who interrogate without abusing or torturing the subjects. (The others, I guess, are the Unclean Team.) That finesses the awkwardness that might arise from needing to get tortured testimony admitted into evidence. (Quick recap: the Military Commissions Act makes evidence procured under torture inadmissible (10 U.S.C. 948r(c)), but allows in probative, reliable coerced evidence if the level of coercion is disputed (10 U.S.C. 948r(d)). In other words: you say that waterboarding, Cold Cell, Long Time Standing, intensive sleep deprivation, prolonged isolation, and whatever else the Unclean Team did are torture. But we, the government, say that they aren't. So the level of coercion is disputed, and therefore the evidence may be admissible.)

It's questionable whether the Clean Team reinterviews will suffice to sanitize this information. After people have been tortured at least once, and imprisoned for years since that time, just how reliable can information they give up in the Guantanamo interrogation cells possibly be, even if the new interrogators are polite, culturally sensitive, and keep their hands to themselves? Wouldn't it dawn on someone who has been tortured that unless he gives the same answers this time around, he might be tortured again? Isn't the situation so inherently coercive that the evidence has no credibility? There are some bells that can't be unrung, and the torture bell is surely one of them. Such evidence is inherently unreliable - just as unreliable as when it was tortured out of the witnesses.

But there's another issue worth flagging. Lawyers, including government lawyers, are bound by an ethics rule forbidding them from speaking with parties who have legal representation without obtaining consent of the party's lawyer. This is the "no-contact rule" in the ethics codes. Under existing law, contact forbidden to lawyers is forbidden to their agents and investigators as well. Rather clearly, the Clean Team were doing investigations on behalf of the prosecution, and in fact the Times story quotes a government official who confirms the role that prosecutors played in guiding the Clean Team.

All the Guantanamo detainees are represented by lawyers handling their habeas corpus and Detainee Treatment Act cases. And the Clean Team re-interrogations are poster children for exactly the evil that the no-contact rule was designed to remedy: getting a represented party to make admissions that he would never make if his lawyer had the opportunity to advise him.

Federal prosecutors have hated the no-contact rule for years, precisely because they want to question prisoners without their lawyers interfering. In the late 1980s, then-Attorney General Dick Thornburgh issued a memo exempting federal prosecutors from the no-contact rule, and Janet Reno expressly adopted his policy as a DOJ rule. But in 1998, Congress passed the McDade Amendment, which requires federal prosecutors to abide by state ethics rules, including the no-contact rule. (Rep. John McDade (R-Pa.) was acquitted in 1996 of conspiracy and racketeering charges after an eight-year investigation, and he sponsored the legislation to curb what he called "rampant" abuse by "overaggressive prosecutors.") Military lawyers aren't covered by the McDade Amendement, but their own ethics codes contain the no-contact rule, and require them to follow state bar rules.

The ABA's version of the no-contact rule reads: "In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order." (State and military rules are similar.)

In the Guantanamo cases, three questions occur. First, is the subject of the representation the same? The Clean Team wants witnesses to talk about 9/11 and who was involved; the habeas lawyers are challenging the legality of their imprisonment. These are not identical legal issues, but the overlap is obvious: both have to do with who the detainee is, who he knows, and what the nature of his involvement with Al Qaeda is, if any. It's hard to believe that the Clean Team interrogations are not about "the subject of the representation."

Second, are the prosecutors authorized by law to question represented persons without the consent of their lawyers? As far as I know, no such law exists (do readers have information to the contrary?) And third, were the Gitmo prosecutors authorized to send out the Clean Team by a court order of the military commissions? If so, has it been made public? Revealed to defense counsel? Was there an adversarial hearing over whether such a court order would be proper? I'm fairly confident that the answer to the last set of questions is no. Put it all together, and it looks like the activities of the Clean Team stem from unclean prosecution tactics.

In December, Charles Swift, one of Salim Hamdan's lawyers, asked the government how they could countenance violations of the no-contact rule, and got an amazing answer: the government does not consider the detainees' lawyers to actually represent them, because the habeas and DTA lawyers were not assigned by the military commissions Appointing Authority. In an e-mail to me, Swift posed the question this way: "When is an attorney not an attorney?" Answer: when the government wants to pretend that the attorney's client is unrepresented, in order to send the Clean Team in to get information that will avoid all the unpleasantness that torture raises in regimes that purport to respect the rule of law. (I discuss this issue in a paper, forthcoming in the Stanford Law Review, on ethical issues arising in Guantanamo detainee litigation. It's currently being posted on SSRN, and I will link to it in a subsequent blogpost.)

Admittedly, in the grand scheme of things prosecutorial violations of the no-contact rule don't have nearly the significance of all the other things wrong with Guantanamo and the military commissions. But the Clean Team and its investigations are part of something that goes much deeper than infractions of the ethics rules: dealing with tortured evidence in a legal system that purports to be civilized. Today's Washington Post has a powerful editorial on the subject. Citing research by occasional Balkinization blogger Dave Glazier on the history of military commissions, the editorial begins:

The defendants stood accused of savage acts, including mass murder. After
lengthy delay, the United States put them on trial by military commissions,
which did not include all of the procedural protections of courts-martial. All
were convicted, and most were sentenced to death.

But shortly after the trials, word began leaking out that much of the
information used to convict the defendants was obtained through coercive
methods, including torture. The outrage fueled by the atrocities soon turned
into national and international indignation at the treatment of the defendants
at the hands of the U.S. government. None of the defendants was executed, and
eventually all were released.

The episode took place in 1946, when the United States established military
commissions in Dachau to try 73 Nazi officers and soldiers accused of gunning
down more than 100 American prisoners during the Battle of the Bulge in
1944.

Like Lady Macbeth, the Clean Team is trying to scrub away a stain that won't come off: the stain of torture. For years, critics have predicted that - along with all its other evils - torture would make it harder to bring terrorist criminals to justice. Those chickens are now coming home to roost. Small wonder if prosecutors have to cheat on their professional ethics to try to make the stain go away.

Posted 9:59 PM by David Luban [link]

Comments:

What kind of torture was used on the Nazi prisoners? Who authorized it? Were there any investigations or prosecutions?

# posted by

mls : 11:05 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 12:10 AM

David Luban

It's questionable whether the Clean Team reinterviews will suffice to sanitize this information. After people have been tortured at least once, and imprisoned for years since that time, just how reliable can information they give up in the Guantanamo interrogation cells possibly be, even if the new interrogators are polite, culturally sensitive, and keep their hands to themselves? Wouldn't it dawn on someone who has been tortured that unless he gives the same answers this time around, he might be tortured again? Isn't the situation so inherently coercive that the evidence has no credibility? There are some bells that can't be unrung, and the torture bell is surely one of them. Such evidence is inherently unreliable - just as unreliable as when it was tortured out of the witnesses.

This argument assumes that the information obtained by the FBI under the Army Interrogation Manual rules was previously obtained under the CIA's coercive techniques and thus tainted.

The CIA was after actionable intelligence as to the identities and locations of other al Qaeda and to identify future terror operations. There is no report that CIA was using coercive techniques to obtain confessions as to past war crimes. Consequently, unless the military is seeking evidence to prove conspiracy to commit future crimes, it is doubtful that the FBI is obtaining the same information obtained by the CIA.

There is no bell to unring.

But there's another issue worth flagging. Lawyers, including government lawyers, are bound by an ethics rule forbidding them from speaking with parties who have legal representation without obtaining consent of the party's lawyer.

Ethical rules meant for the civilian judicial system do not apply to war crimes trials for enemy combatants.

Neither the Constitution nor the Geneva Conventions grant a right against self incrimination to captured enemy combatants. If the enemy does not have a right against self incrimination, he surely does not have a right to have an attorney present at interrogations telling him not to answer questions.

The idea is absurd.

# posted by

Bart DePalma : 12:12 AM

My comment relates tangentially to the Nuremberg comparisons the Bush administration is making in its apparent plans to try the Guantanamo Six.

First,has no one noticed that the alleged acts of the Guantanamo Six occurred before the war began?

It seems to me that, before these men can be charged with “war crimes” (if any of the acts were, which is doubtful), there needs to be a war.

In the Hamdan case, Justice Stevens, speaking for the plurality of the Supreme Court, said:

“Of the three sorts of military commissions used historically, the law-of-war type used in Quirin and other cases is the only model available to try Hamdan. Among the preconditions,incorporated in Article of War 15 and, later, UCMJ Art. 21, for such a tribunal’s exercise of jurisdiction are, inter alia, that it must be limited to trying offenses committed within the convening commander’s field of command, i.e., within the theater of war, and that the offense charged must have been committed during, not before or after, the war. Here, Hamdan is not alleged to have committed any overt act in a theater of war or on any specified date after September 11, 2001.”

Although the context in Hamdan did not involve an interpretation of the Military Commissions Act, the requirement for a state of war would surely remain.

Secondly,on what theory does the government expect to bring the "conspiracy" into the post 9/11 timeframe?

In the charges, there are 169 "overt acts" alleged, of which 164 occurred before 9/11 and hence before there was a war. Five acts occurred afterwards, consisting of such things as making celebratory propaganda videos. Can they bring a pre-existing conspiracy into the period of war?

This raises the Nuremberg point. Is the government, relying as it does on pre-Geneva law, plan to allege that there are Nuremberg precedents for acts pre-dating war being carried into the war timeframe?

Have I missed something, here? No one is commenting on what seems to me to be a glaring defect in the strategy to prosecute these offences as war crimes.

# posted by

Aussie Lawyer : 12:38 AM

BD
Ethical rules meant for the civilian judicial system do not apply to war crimes trials for enemy combatants.

this depends upon whether those ethical rules are meant to prevent the admission of unreliable evidence, a goal which would apply more or less equally, or as a privilege to the defendant by virtue of citizenship. insofar as they are the former, because of the drastic penalties for conviction of terrorist acts and the need for good pr in this type of struggle, we should follow the ethical rules scrulously. insofar as restraints on judicial process are privileges of citizenship, it seems reasonable that they can be waived.

what is the harm of having no privilege against self incrimination for terror suspects that are not us citizens, or no spousal privilege?

# posted by

Neil : 3:47 AM

Did the members of the "clean team" resemble a tabula rasa or did they have the benefit of the tainted fruit team's efforts? (With a lot of winks and nods?)

# posted by

Shag from Brookline : 6:07 AM

Neil (aka "Single Party Elitist"?): what is the harm of having no privilege against self incrimination for terror suspects that are not us citizens, or no spousal privilege?

This is a rhetorical question? And what a strangely inapt juxtaposition of rights. And what a deft substitution of "privilege" for "right". It seems so strange to me that "innocent until proved guilty" is seen in such a stingy light by a certain class of person. Some of us were taught that this is more than a local statute but the highest principle of law meant to limit all American prosecutorial efforts. I guess some folks just really believe in relativism where such values are concerned.

# posted by

Robert Link : 6:14 AM

shag from brooklyn clarifies the point quite well. The defendants have no way of knowing how closely connected the "clean" and "dirty" teams are. My sister once did telephone surveying and asked an interviewee how she felt about a product. The woman didn't want to insult the manufacturers of the product because "one of them might be your boyfriend." To sophisticated urbanites, that's a ridiculous presumption, but obviously, it made sense to the interviewee.

# posted by

Rich Gardner : 8:15 AM

neil:

It is a foregone conclusion that less evidence of any kind will be obtained if a lawyer is present telling his client not to answer questions.

Is there any empirical evidence that more unreliable evidence is obtained without a lawyer being present than with one?

# posted by

Bart DePalma : 9:44 AM

Bart: If a person is in the custody of a lawless regime, he or she will say whatever they feel the regime wishes to hear. If the person hs undergone torture, then quite obviously, the condition applies.

# posted by

Rich Gardner : 10:37 AM

Bart:

Congratulations on you very provocative posting here, you have really stimulated me. I have so many things I'd like to say but I'll limit myself to this:

It is not enough to have justice done, justice must seen to be done. The problem we are facing is that the methods we are currently using are methods that make it very had to see that justice is being done. Using any kind of coercive methods to get evidence from a subject to then be used to convict that subject is see as unjust. Everyone has personal experience with being coerced and we almost always feel that it was 'not fair'.

# posted by

Beau : 10:58 AM

Rich:

If Khalid Sheik Muhammad and his merry band of mass murdering war criminals were terrified at the very thought of being in custody of the FBI and CIA and were spilling their guts from the outset, there would have been no need for any coercive interrogation to compel them to talk.

I sincerely doubt that the terrorists who draft and follow a manual of true torture including using power drills and blow torches, amputation, gouging out eyes, dragging behind vehicles, electric shock and beatings would be terrified of our whimpish version of "torture."

# posted by

Bart DePalma : 10:58 AM

beau said...

Bart: Congratulations on you very provocative posting here, you have really stimulated me. I have so many things I'd like to say but I'll limit myself to this:

It is not enough to have justice done, justice must seen to be done. The problem we are facing is that the methods we are currently using are methods that make it very had to see that justice is being done. Using any kind of coercive methods to get evidence from a subject to then be used to convict that subject is see as unjust. Everyone has personal experience with being coerced and we almost always feel that it was 'not fair'.

I completely agree with everything that you just said.

However, the argument of the lead post is that the uncoerced testimony provided to the FBI should not be admitted into war crimes trials because different testimony on different subjects was coerced earlier by the CIA to gain actionable intelligence to roll up the al Qaeda network.

I cannot agree with this argument.

We should not have to choose between gathering actionable intelligence to prevent future terrorist mass murder and later gathering uncoerced testimony to prosecute al Qaeda leaders for their past war crimes.

# posted by

Bart DePalma : 12:28 PM

There is no uncoerced testimony here when it comes to the waterboarding victims. Once a detainee has been tortured to gain intelligence, any further interrogation carries with it the implicit threat of further torture should he not talk.

# posted by

Narc : 1:59 PM

garth:

1) You prevent future terrorist mass murder by killing or capturing the terrorists. The terrorist mass murder does not have to imminent (ie the Ticking Time Bomb scenario) for this to work.

2) I could give less than a damn about the dignity of Khalid Sheik Muhammad and his merry band of war criminals. If the CIA broke them, so much the better. Go tell the families of the thousands these war criminals have massacred that we have been too mean to them.

3) No one is "railroading" these war criminals. The charges against the 9/11 plotters are extraordinarily detailed with dates. locations and actions. This isn't the product of a person saying anything to get the torture to stop. Given that this will be the most carefully scrutinized trial since OJ, I think it is safe to assume that the Military has layers of evidence for each allegation.

4) Yes, this is damn close to my ideal resolution of this matter. The CIA broke these terrorists and rolled up al Qaeda, preventing further attacks on the United States. When the CIA was through gathering intelligence, these war criminals were handed over to FBI and the military for trial and with any luck a date at the end of a rope. This is a classic win win resolution.

Why you would want to change either result is incomprehensible to me.

# posted by

Bart DePalma : 2:03 PM

Baghdad, you would have been a damned fine Nazi.

# posted by

Bartbuster : 2:08 PM

The charges against the 9/11 plotters are extraordinarily detailed with dates. locations and actions. This isn't the product of a person saying anything to get the torture to stop.

If the evidence is so detailed and is not based on torture, why did we have to torture them?

# posted by

Bartbuster : 2:10 PM

Neither the Constitution nor the Geneva Conventions grant a right against self incrimination to captured enemy combatants. If the enemy does not have a right against self incrimination, he surely does not have a right to have an attorney present at interrogations telling him not to answer questions.

Bart, if (1) government lawyers are bound by state ethics rules in the states that they are licensed, which they are as a matter of federal law, and (2) the detainees are represented parties, which they are, then it really doesn't matter that you would rather, as a policy matter, that ethics rules don't apply to war crimes trials before military commissions. Congress had to make an exception, and they didn't.

No true "the judiciary should follow the law as written" conservative would ever say otherwise.

And by the way, I am shocked at how little knowledge you have of the law given your law license. The no ex parte contact rule is separate from the Fifth Amendment privilege against self-incrimination, and is tested in the Multistate Professional Responsibility Examination that every lawyer must take to get a license.

# posted by

Dilan : 2:14 PM

Bart: If KSM and other al Qaeda members wish to be barbarians, if they wish to use blowtorches, et al, we can't really stop them from doing so. What we can do is to not sink to their level.
The likelihood that we will gain useful information from being sub-human brutes to our captives is more or less nil.
The likelihood of becoming a corrupt, lawless regime where torturing suspects becomes an end in itself is 100%.
"Power tends to corrupt, absolute power corrupts absolutely" is not a mere theory. We know from the Soviet Union's experiences in the 1930s that interrogating prisoners quickly becomes an end in itself and that interrogators will eventually start doing it just for the sheer pleasure of it.
No! As Americans, we cannot go down that path. Ever!

# posted by

Rich Gardner : 2:43 PM

Dilan:

State bar ethical rules do not trump federal law. I am unaware of any state bar forcing the issue by harassing a JAG licensed in their state for following contrary federal law and regulations.

# posted by

Bart DePalma : 3:06 PM

rich said...

Bart: If KSM and other al Qaeda members wish to be barbarians, if they wish to use blowtorches, et al, we can't really stop them from doing so. What we can do is to not sink to their level.

We have not and no one is saying we should in the future. The point was that people capable of chopping up and dragging to death captives, as al Qaeda has done with our captured soldiers, is hardly likely to panic at the thought of being captured by the CIA and made to listen to loud rock and roll.

The likelihood that we will gain useful information from being sub-human brutes to our captives is more or less nil.

Thankfully we are not acting like sub human brutes and have been very successful in gaining actionable intelligence from the likes of KSM.

# posted by

Bart DePalma : 3:11 PM

Thankfully we are not acting like sub human brutes and have been very successful in gaining actionable intelligence from the likes of KSM.

# posted by Bart DePalma : 3:11 PM

Numbnuts, the CIA has admitted that it tortured people. For you to pretend otherwise is laughable.

# posted by

Bartbuster : 3:19 PM

Bart has obviously never heard of the "slippery slope" or of the "thin wedge" or of the "camel sticking his nose into the tent." I'm finished here.

# posted by

Rich Gardner : 3:25 PM

State bar ethical rules do not trump federal law.

Bart, state bar ethical rules ARE INCORPORATED INTO FEDERAL LAW BY CONGRESSIONAL STATUTE. What part of the McDade Amendment don't you understand.

You are rewriting the law to what you would like it to say. If you don't want JAG's and other government lawyers working on the Guantanamo cases covered by ethics rules, why don't you lobby Congress to change the law? Because as it stands now, the law is explicit that they are covered.

# posted by

Dilan : 4:45 PM

dilan said...

BD: State bar ethical rules do not trump federal law.

Bart, state bar ethical rules ARE INCORPORATED INTO FEDERAL LAW BY CONGRESSIONAL STATUTE. What part of the McDade Amendment don't you understand.

I'll admit that I was not considering the McDade Amendment.

It was my understanding that the McDade Amendment applied to DOJ attorneys and other government attorneys which work with DOJ. Do you know if this amendment applies to JAG attorneys working independently of DOJ?

If so, then the question becomes whether a particular state's ethical rules pertain to enemy combatants.

# posted by

Bart DePalma : 10:22 PM

This comment has been removed by the author.

# posted by

David Luban : 1:13 AM

Two quick responses to Bart De Palma's postings.

First, it's untrue that civilian ethics rules don't apply to the military commissions. Military Commission rule 109 states that they do. Nor is it a question of federal law trumping state law. RMC 109 is federal law, and it incorporates state and military ethics standards into the practice of the military commissions.

Second, you write: "the argument of the lead post is that the uncoerced testimony provided to the FBI should not be admitted into war crimes trials because different testimony on different subjects was coerced earlier by the CIA to gain actionable intelligence to roll up the al Qaeda network." That was not the argument. My information is that the Clean Team is reinterviewing detainees (not necessarily the defendants alone, but others who have evidence to offer) about the same topics they gave up in coercive interrogation. My argument is that the answers they give are unreliable because - having been tortured once - they are likely to tell the interrogators what they want to hear. Under the Military Commissions Act, unreliable evidence is inadmissible.

# posted by

David Luban : 1:14 AM

Bart:

The McDade amendment is ambiguous on military lawyers, though it applies to any DOJ lawyer. It says that any "attorney for the government" is covered, and that INCLUDES any DOJ lawyer (defined by regulation). So the ambiguity is whether it is limited to DOJ lawyers or also includes military lawyers.

However, as Prof. Luban notes, the code of ethics governing JAG's also provides that JAG's are subject to state rules of professional conduct.

As I said, if Congress wants to, they could pass an exception for lawyers participating in the military commissions process. Or the military could revise its code of ethics with respect to the JAG's (assuming that the McDade Amendment's language doesn't reach the JAG's). But unless and until that happens, government lawyers are governed by the no ex parte contact rule. Because it is a rule that restricts the conduct of government lawyers, not a right that one can claim doesn't apply outside the context of the civil court system.

# posted by

Dilan : 2:55 PM

They are not located in a state of the US. Therefore, no state ethics law applies. Therefore the Depalma amendment has no effect

# posted by

ParatrooperJJ : 2:29 PM