I. Introduction
In 1976 the Supreme Court reestablished the death penalty following a four-year moratorium. In Gregg v. Georgia, the Court held that the death penalty was constitutional when proceedings had safeguards to prevent arbitrary or discriminatory sentences.[1] One safeguard was that capital proceedings required “heightened reliability” or a “super due process” given the punishment’s unique severity and finality. Although numerous cases cite heightened reliability, the Court has never clearly articulated a standard for what heightened reliability entails. Capital cases involving classified information complicate this already nebulous standard: how can a proceeding have heightened reliability when the very evidence the government uses to charge and convict the defendant cannot be evaluated by defense counsel or the jury?
In this essay I will discuss how the government excludes evidence in capital national security cases for asserted (but undefined) national security reasons and the impact of such exclusions on the Eighth Amendment’s reliability standard. The 9/11 Military Commission capital case illustrates the complex issues involved in national security proceedings; a military judge will reconsider whether the exclusion of certain evidence of torture—namely, the inability of defense counsel to interview covert CIA employees involved in the rendition, detention, and interrogation of detainees—contravenes the Eighth Amendment’s heightened reliability requirement. Examining the heightened reliable standard leads to one conclusion: a reliable evaluation of guilt and sentencing evidence in a capital case is impossible without access to relevant classified evidence.
This essay begins in Part II with a discussion of heightened reliability, and the caselaw that developed the standard.[2] Then, I describe the use of classified information in criminal cases, and briefly discuss the background of the 9/11 case. In Part III, I argue that a reliable evaluation of guilt and sentencing evidence in a death penalty case is impossible without the government’s agreement to provide access to relevant classified evidence. In Part IV, I discuss the implications of the heightened reliability framework for the 9/11 case, and how the government must forfeit its pursuit of the death penalty if it wishes to prevent defense access to relevant evidence, or the Military Commission must strike the death penalty to comport with the Constitution.
II. The Constitution Requires Heightened Reliability
The Supreme Court has recognized that “death is different” than other forms of punishment: it is unique in its “total irrevocability” and severity.[3] The Court in Woodson v. North Carolina thus established that “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”[4] The Court has continued to flesh out what a greater degree of reliability requires. A review of heightened reliability in caselaw shows that “super due process” entails a full consideration of guilt and mitigation evidence, and greater scrutiny of such to ensure that death is only imposed on those most deserving of the punishment. Greater reliability also requires an unemotional factfinder who fully understands the legal procedures and factual underpinnings of the case.
The Court in Beck v. Alabama held that heightened reliability requires greater procedural protections in both the eligibility and selection phases to ensure that the government imposes the death penalty only on guilty and the most culpable individuals.[5] This entails stricter evidentiary scrutiny in the eligibility phase and individualized sentencing in the selection phase.[6]
Heightened reliability also requires the factfinder to fully understand the procedures and factual underpinnings of the case.[7] The Court in Ford v. Wainwright found that the state’s refusal to consider additional psychiatric evaluations to resolve conflicting diagnoses failed to achieve “even the minimal degree of reliability required for the protection of any constitutional interest.”[8]
The Court has held that at the selection phase the defense must be allowed to examine and present any relevant mitigating evidence. In Lockett v. Ohio, the Court required the consideration of all relevant mitigating factors, including “any aspect of a defendant’s character or record and any of the circumstances of the offense” that could warrant a lesser sentence.[9] The Court held that preventing the sentencer from “giving independent mitigating weight” to the defendant’s character, the record, and the circumstances of the offense would risk that the punishment would be unreliable as those factors “may call for a less severe penalty.”[10]
The severity of a death sentence mandates increased scrutiny for procedural deficiencies, but not every deficiency warrants reversal. In Zant v. Stephens, the Court stated that “although not every imperfection […] is sufficient, even in a capital case, to set aside a state court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.”[11] A lower court cited Zant in finding that the government acted consistently with the Eighth Amendment in not calling a detective witness to testify as “multiple, undisputed facts point to the reliability of the testimony by other witnesses” of the incident at issue.[12]
Heightened reliability may not always benefit the defendant, but supports “the need for the sentencing body to have as much information as possible.”[13] In Barefoot v. Estelle, the Supreme Court permitted testimony about future dangerousness even though such psychiatric evidence is inherently unreliable.[14] The Court later noted that the language from Woodson “was not intended to describe a class of evidence that could not be received, but a class of evidence which must be received.”[15]
Established caselaw concerning heightened reliability has failed to confront the tension caused by national security cases, which may preclude certain pieces of evidence.
III. Classified Information in Criminal Cases Limiting Access for Defendants
Criminal cases involving classified information complicate reliability because the government may rely on classified information, which precludes defense counsel from unfettered access to review and evaluate such evidence. Although U.S. law contemplates substitutions to provide the defense with some evidence, the lack of full access seems to contradict the heightened reliability requirement in capital cases. National security criminal cases often involve classified evidence, such as information derived from covert sources or methods, the exposure of which could reasonably be expected to harm U.S. national security. The Classified Information Procedures Act (CIPA) allows the government “upon a sufficient showing,” to remove classified items from discovery requests that may harm national security or to provide unclassified summaries or substitutions.[16] The defense must then show that such information is both relevant and helpful to the defense to receive the information.[17] If the judge finds that the defense requires the protected information, the government can dismiss or amend the charges to avoid disclosing the information.[18]
Although U.S. law contemplates substitutions of classified information, limited access contradicts the heightened reliability requirement in capital cases. United States v. Moussaoui illustrates this tension. Moussaoui was charged with conspiring in the 9/11 attacks.[19] The government refused to provide detained witnesses who had knowledge of the attacks for defense depositions; the district court held that the reliability standard required striking the death penalty as a sanction because testimony about Moussaoui’s culpability was “critical” to the penalty phase.[20]
The Fourth Circuit found on appeal that substitutions for depositions could be adequate. The majority, however, stated that if factfinders determined that Moussaoui had no involvement or knowledge of the attacks, he may be found ineligible for the death penalty.[21] Throughout concurring and dissenting opinions judges noted the need for reliability, which bolsters their persuasive value given the significant concern. One judge wrote:
[T]he reliability of a death sentence would be significantly impaired by the limitations on the evidence available for Moussaoui’s use in proving mitigating factors (if he is found guilty). […] A sentence of death cannot be imposed unless the defendant has been accorded the opportunity to defend himself fully; it cannot be imposed without the utmost certainty, the fundamental belief in the fairness of the result.[22]
The judge noted that the majority left open the possibility that inadequate substitutions could require striking the death penalty.[23] However, the judge argued that any substitutions would be deficient because summaries would be fundamentally different from responses to a defendant’s questions that the jury could evaluate.[24] If Moussaoui could not ask witnesses about his level of involvement in the attacks, “he is undeniably and irretrievably handicapped in his ability to defend himself from a sentence of death.”[25]
In another appeal to the Fourth Circuit, another non-majority opinion maintained that the death penalty should be removed because the government “made clear” that witness statement summaries were an incomplete account of the witnesses’ responses.[26] Although the Fourth Circuit’s majority reestablished Moussaoui’s death penalty eligibility, the concurring and dissenting judges’ forceful discussions of evidence reliability illustrate the great tension between constitutional rights and national security interests in capital cases, and hold persuasive value in future proceedings. One judge rejected the majority’s characterization that there was no evidence the government possessed necessary evidence because without actual review of such, “there is no way this court or Moussaoui could know whether an arm of the Government possesses exculpatory evidence.”[27] Without review, the jury would be relying on possibly out of context portions of statements; “[t]his is a slim reed indeed upon which to base a jury verdict, especially where a man’s life hangs in the balance.”[28]
The government preventing defense access to classified information even when such information is necessary for defense has continued, as illustrated by the 9/11 Military Commission case.
9/11 Military Commission Case
On September 11, 2001, Al-Qaeda operatives hijacked four airplanes and successfully executed the most catastrophic terrorist attack against the United States in history. The resulting devastation prompted President Bush to authorize the CIA to capture, detain, and kill Al-Qaeda members.[29] Between 2002 and 2003, the government captured and detained five individuals who would become the defendants in the 9/11 capital case.[30] From 2003 to 2006, the government held defendants in various CIA facilities abroad. CIA employees subjected defendants to “enhanced interrogation techniques,” including waterboarding, forced standing and stress positions, sleep deprivation, slapping, slamming against walls, dousing with freezing water, forced diaper use, rectal rehydration without a medical purpose, humiliation methods using nudity or sexual practices, and psychological torment (e.g., threatening to kill detainees and their family members).[31]
In 2006, the government transferred defendants to Guantanamo Bay as President Bush signed the 2006 Military Commissions Act, which set out procedures to prosecute defendants through a military commission instead of Article III courts.[32] After almost twenty years the case remains in pretrial hearings; a key outstanding issue concerns statements initially derived from torture (that are non-admissible) but later re-elicited under non-tortuous conditions (that the government is now seeking to admit).[33] As the conditions surrounding the initial statements implicate the reliability of the subsequent statements, defense counsel has sought discovery about the initial torture-derived statements, including requests for interviews with CIA employee witnesses. The government has maintained exclusive control of the classified identities of such witnesses and argued that summaries and substitutions, pursuant to Commission rules identical to CIPA, are sufficient.[34]
The government provided defense counsel with profiles of 64 employees who had contact with defendants; however, the government did not provide documents it relied on in creating the profiles. Additionally, counsel interviewed a few of the employees and found that some witnesses “identified large discrepancies, conflicting information or missing items material to the defense.”[35] The government maintained that limiting access was necessary for national security and because of possible harm to CIA witnesses and their families.[36] The government also noted that defendants may describe their own experiences.[37]
The Commission previously held that the government need not produce the CIA employees for questioning because such “unnecessarily risks causing damage to the national security.”[38] However, the Commission also recognized the tension between the defense’s ability to conduct an unimpeded, independent investigation with equal access to witnesses and evidence and the government’s need to protect classified information.[39] The Commission acknowledged that without knowing the CIA employees’ true identities, the defense cannot verify their credentials or investigate their truthfulness. The judge held that limiting access prevented the defense from developing “the particularity and nuance necessary to present a rich and vivid account of the 3-4 year period in CIA custody the Defense alleges constituted coercion.”[40] A subsequent judge reversed the holding, but in 2024 a new judge decided to reconsider the issue.[41]
IV. Heightened Reliability and the 9/11 Case
Limiting access to CIA employees who witnessed defendants’ torture contravenes the Eighth Amendment’s directive for heightened reliability because it precludes a meaningful and complete presentation of the defendant’s culpability and mitigating evidence. The unique nature of capital cases and the circumstances of the 9/11 case demand the Commission adhere to the heightened reliability standard and either compel access or strike the death penalty.
Limiting Access to Witnesses Diminishes Reliability
Witness testimony about the extent of defendants’ torture has serious implications on their culpability as the government seeks to use torture-tainted statements at trial that purport to outline defendants’ roles in the 9/11 attacks. Courts have highlighted the importance of in-person testimony in evaluating credibility,[42] and relying on anonymous testimony that the defense could not probe does not promote reliability: it diminishes it.
Heightened reliability mandates individualized consideration where the defense can present any relevant mitigating evidence. Here, testimony about the extent and effects of torture would allow the factfinder to consider the “whole human being” and “anything that may call for a sentence less than death.”[43] The government’s suggestion that the defense does not need the CIA employees’ testimony because defendants can testify to their own experiences prevents the defense from corroborating defendants’ credibility because the factfinder may dismiss defendants’ own testimony as self-serving. Like Ford, where the Court held that additional information was required to resolve conflicting diagnoses, there is already conflicting testimony about the extent of torture and its effects on defendants’ statements, which CIA witnesses could clarify.
Heightened reliability also requires evaluating evidence trustworthiness. The U.S. government’s own review of torture-derived evidence shows its inherent unreliability,[44] let alone the plethora of judicial opinions,[45] social science,[46] and interrogation expertise[47] that have confirmed as much for decades. Information about how CIA personnel elicited statements would implicate the reliability of the same statements elicited from FBI personnel post-torture, because torture victims likely would not distinguish U.S. government agencies; the effects and fear of CIA torture would likely color responses to FBI interviews.[48]
The Court’s call for more information (rather than limiting evidence) also supports giving defense counsel access. Having a comprehensive understanding of defendants’ torture is integral to the reliability of the government’s evidence. And unlike Valle, where there were undisputed facts bolstering a witness’ credibility, here there are already disputes over the torture’s extent and effects.[49] Probing witnesses may yield information that the Senate Select Committee did not elicit[50] and would clarify any discrepancies that the defense has already found.[51]
The Constitution mandates heightened reliability, but as Congress has created procedures for dealing with sensitive national security information, courts hearing capital cases relying on classified information must address the tension between protecting national security material and adhering to the Constitution.
National Security Concerns vs. Heightened Reliability
The government has a valid interest in protecting classified information, and here, protecting covert CIA employees. These concerns, however, do not override capital defendants’ constitutional rights. The tension between protecting classified information and defendants’ rights can be resolved by the Military Commission removing the death penalty if the government refuses to abandon seeking the death penalty. CIPA contemplates such tension and favors defendants when their rights are threatened; the government must dismiss or amend charges to avoid disclosing defense-required classified information. The Commission itself has recognized the tension in its initial holding on this issue.[52] Although this finding is being reconsidered, it holds immense persuasive value that a judge steeped in these issues made such a holding.
While courts typically defer to the government’s interests in protecting classified information,[53] the heightened reliability standard mandates additional protections. Moussaoui illustrates this importance. Although Moussaoui was vacated in part, the non-majority opinions hold persuasive value as each highlighted reliability. Furthermore, the majority opinion failed to fully consider the death penalty in focusing on the national security implications. A constitutionally adequate death sentence requires full access to evaluate evidence relied on or that could mitigate a death sentence. The majority opinion also failed to consider the benefits of in-person testimony and the defense’s ability to elicit the witnesses’ complete accounts.[54] Here, defense counsel does not know what CIA witnesses may say beyond the limited information the government provided.
The government can refuse to provide relevant evidence to defendants and prioritize national security, but it may not do so at the expense of defendants’ rights by seeking the death penalty.
V. Conclusion
When death is a punishment, any risk of unreliability “is unacceptable and incompatible” with the Constitution.[55] With the Commission striking the death penalty already for one defendant whose continued illness caused by torture has prevented him from meaningfully participating in his defense, criminal procedural safeguards are finding their way through.[56] The Commission should thus apply another safeguard that the Supreme Court has recognized as a constitutional right for half a century: heightened reliability.
[1] Gregg v. Georgia, 428 U.S. 153 (1976).
[2] This Essay considers Eighth Amendment jurisprudence; it does not address international law, the UCMJ, or military commission rules. It also does not address the U.S. Constitution’s application to the Military Commission.
[3] Gregg at 306.
[4] 428 U.S. at 304-05.
[5] 447 U.S. at 638 (1980).
[6] Cf. United States v. Fields, 483 F.3d 313, 335-38 (5th Cir. 2007).
[7] Ford v. Wainwright, 477 U.S. 399, 411 (1986).
[8] Id. at 413.
[9] 438 U.S. 586, 604 (1978).
[10] Id.
[11] 462 U.S. 862, 884 (1983).
[12] Valle v. Crosby, No. 03-20387CIV, 2005 WL 3273754, at *39 (S.D. Fla. Sept. 13, 2005).
[13] United States v. Cooper, 91 F. Supp. 2d 90, 98 (D.D.C. 2000).
[14] 463 U.S. 880 (1983).
[15] Payne v. Tennessee, 501 U.S. 808, 822 (1991) (emphasis in original).
[16] 18 U.S.C. App. III, § 4.
[17] Id. at § 6.
[18] Id. at § 6(c)(1); see Reynolds, 345 U.S. at 12 (“[S]ince the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense”).
[19] 282 F. Supp. 2d 480 (E.D. Va. 2003).
[20] Id. at 487.
[21] Id at 309.
[22] United States v. Moussaoui, 365 F.3d 292, 332 (4th Cir. 2004).
[23] Id. at 330 n.6.
[24] Id. at 331.
[25] Id.
[26] Id. at 325 n.15.
[27] Id.
[28] United States v. Moussaoui, 382 F.3d 453, 488 (4th Cir. 2004).
[29] https://www.nytimes.com/interactive/2014/12/09/world/timeline-of-cias-secret-interrogation-program.html.
[30] United States v. Khalid Shaikh Mohammad, et al., AE 524LL.
[31] http://www.intelligence.senate.gov/study2014.html.
[32] Supra, note 29.
[33] https://www.nytimes.com/2024/02/08/us/politics/prosecutor-quits-sept-11-case.html?searchResultPosition=1.
[34] AE 308HHHH.
[35] https://www.lawfaremedia.org/article/last-week-military-commissions-long-days-911-case.
[36] AE 524TTT.
[37] Id.
[38] AE 524LL.
[39] Id.
[40] Id.
[41] https://www.lawdragon.com/news-features/2024-03-02-government-investigator-testifies-on-limits-to-accessing-cia-black-site-witnesses.
[42] See, e.g., Broadcast Music v. Havana Madrid Rest. Corp., 175 F.2d 77, 80 (2d Cir. 1949) (“[t]he liar’s story may seem uncontradicted to one who merely reads it, yet it may be contradicted in the trial court by his manner, his intonations, his grimaces, his features […]”).
[43] Lockett, at 604.
[44] See, e.g., Department of Defense, Inquiry into the Treatment of Detainees in U.S. Custody (Nov. 20, 2008) at 128 (“[EITs] were not proven to result in obtaining reliable information from those being interrogated”); SSCI Torture Report, (“[I]t appears to me that the enhanced interrogation techniques were not effective in producing the type of unique and reliable information claimed by the agency’s leadership”).
[45] See, e.g., Linkletter v. Walker, 381 U.S. 618, 638 (1965).
[46] See, e.g., H. C. Lea and E. Peters, Torture (1973).
[47] See, e.g., United States Department of the Army, FM 34-52: Intelligence Interrogation (“[torture] is a poor technique that yields unreliable results[.]”).
[48] See, e.g., Mohammed v. Obama, 689 F. Supp. 2d 38, 62, 64-65 (D.D.C. 2009) (describing how torture-derived statements could taint later statements made under non-tortuous conditions and render such unreliable).
[49] https://www.lawdragon.com/news-features/2024-03-09-a-month-at-guantanamo-proves-crushing-and-corrosive-the-battle-over-incriminating-evidence-endures.
[50] Tr. 21634-35.
[51] Tr. 34968-69.
[52] AE 524LL.
[53] See, e.g., United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir.1989).
[54] Moussaoui, 365 F.3d at 325.
[55] Lockett at 606.
[56] https://www.nytimes.com/2023/09/21/us/politics/september-11-guantanamo-torture.html.
