Independent New Hampshire Journalism · Northfield, NH

Three Judges Said It Was Torture. The System Made Sure There Were Only Three.

A quarter-century into the war-on-terror prosecutions, the government’s own evidence was built on torture it has never denied. This is the short list of judges ever forced to rule on that, and the machine engineered to keep the list short.

Start with the part nobody disputes. The CIA tortured the men it captured after September 11. Not “enhanced.” Not “harsh.” Tortured. Waterboarding, sleep deprivation measured in days, walling, stress positions, and worse, applied to human beings held for years in secret prisons — no lawyer, no charge, no calendar. The government has conceded as much in its own filings. The Senate documented it at length. The two contract psychologists who designed the program have testified about it under oath, in a courtroom, while collecting their consulting fees.

So here is the number that ought to end careers. Across nearly twenty-five years of prosecutions built on that torture, exactly three trial judges have ever been put in the position of formally ruling that the resulting evidence could not be used. Three. And the system that produced that number did not get there by accident.

There is no official tally. No agency publishes “torture-evidence exclusions per fiscal year,” and you should be suspicious of anyone who hands you a clean statistic on this. What follows is the verifiable record, pulled from the court documents themselves and from the handful of reporters who have sat in the Guantanamo gallery for the better part of two decades. It is a short record. That is the whole point.

The three times a judge said no

Kaplan, 2010: the only one that happened in a real courtroom

In 2010, Ahmed Khalfan Ghailani became the single Guantanamo detainee the United States ever tried in an ordinary federal court, for the 1998 al-Qaeda truck bombings of the U.S. embassies in Kenya and Tanzania that killed 224 people. Prosecutors had a witness they called “giant” — a Tanzanian man set to testify that he sold Ghailani the explosives. Judge Lewis Kaplan threw the witness out. The government had only learned the man existed because it coerced Ghailani at a CIA black site, and the Fifth Amendment does not let you launder that. “The Constitution is the rock upon which our nation rests,” Kaplan wrote, in the kind of sentence that reads as quaint now. Ghailani was convicted anyway, on one count, and is serving life. The republic survived. Keep that in mind the next time someone insists the rules make it impossible to convict a terrorist.

Acosta, 2023: thirteen years later, and not the hero you want

Army Col. Lanny Acosta presided over the case of Abd al-Rahim al-Nashiri, accused of orchestrating the 2000 bombing of the USS Cole that killed 17 American sailors off Yemen. In August 2023, in a fifty-page decision, Acosta suppressed the confession al-Nashiri gave the FBI in 2007, finding it the product of the torture that came before it. The details the judge put in that ruling are not for the squeamish; among other things, al-Nashiri described being sodomized with a stiff brush. “Any resistance the Accused might have been inclined to put up,” Acosta wrote, “was intentionally and literally beaten out of him years before.”

Give the ruling the credit it earned, but do not canonize the man. Two years earlier, the same judge had blessed one of the more creative prosecution theories of the entire war on terror — that the law banning torture-obtained statements “in a military commission” somehow meant only at the trial itself, leaving prosecutors free to wield torture evidence in the pretrial fights. He bought it. The ban held that round only because the government later backed off on its own. That is how thin the line is, even with one of the good rulings attached to it.

McCall, 2025: it exists only because a tortured man refused to make it convenient

The most recent exclusion came in April 2025. Air Force Col. Matthew McCall, presiding over the actual 9/11 case, suppressed the confession of Ammar al-Baluchi, a nephew of accused mastermind Khalid Shaikh Mohammad. The pattern matched the others: years in black sites, then a “clean” FBI interview four months later that the government swore was voluntary. McCall did not buy it. The conditioning, he found, did not wear off because the next interrogator was courteous. He had even visited the spot on the base where the FBI sessions took place to judge the conditions for himself.

Here is the detail that tells you everything. McCall’s ruling applied to exactly one defendant, al-Baluchi, because his three co-defendants had taken plea deals and dropped out of the suppression fight. Al-Baluchi turned down a deal in part specifically to force the question, to make somebody on a bench say the word “torture” and hang a consequence on it. He had to volunteer for that. The system was never going to ask on its own.

That affirmation is its own data point. Once — exactly once — an appeals court backed one of these rulings. In 2025 the Court of Military Commission Review upheld the al-Nashiri suppression, agreeing the confession was “tainted” and involuntary, that the black-site coercion had been “brought forward to the present” the moment the FBI walked in. That is the appellate record. Singular.

The machine that keeps the number at three

None of this is because torture evidence is hard to spot. It is because the apparatus was built, deliberately, so a judge almost never has to look at it. There are five gears, and they all turn the same direction.

Don’t charge them. The simplest dodge of all. Most of the men who passed through CIA custody were never prosecuted. They were warehoused in indefinite detention, where no trial means no evidence hearing means no problem. You cannot have your torture evidence thrown out of a trial you never hold.

Launder the confession. For the ones the government did want to charge, it invented the “clean team”: fresh FBI agents sent in months after the torture stops, a polite interview, and a result the government calls untainted. Two of the three rulings above exist precisely because judges refused to pretend the politeness erased what came before it.

Cut a deal. When suppression starts to look likely, settle. In 2024, prosecutors agreed to let Mohammad and two co-defendants plead guilty in exchange for life sentences, and reporting at the time tied that decision to the al-Nashiri ruling that had just shown how the confessions might evaporate. A plea agreement has no suppression hearing. Problem buried, or so they thought.

Bury it in process. The 9/11 suppression fight alone ran more than five years and heard from nearly thirty witnesses, including the two psychologists who built the torture program and then billed the government to defend its fruits. The case has churned through something like seven judges. There is still no trial date, a quarter-century after the attack it concerns. The delay is not a malfunction. It is the business model.

Never punish the torturers. Underneath all of it: not one person who ordered, designed, or carried out the torture has ever been charged with anything. The Obama administration’s official posture was to “look forward, not backward.” So the men who were tortured sit in cells fighting over the admissibility of what was beaten out of them, while the men who did the beating retired comfortably. That asymmetry is the entire story of American accountability in a single sentence.

The dodging keeps dodging. After the 2024 plea deals were signed, the Secretary of Defense moved to tear them up. The military courts said he could not. A federal appeals court then threw the deals out anyway, which sounds like a defense victory until you sit with what it means. The three men are back to litigating suppression, in front of yet another new judge, Air Force Lt. Col. Michael Schrama, who heard final arguments this May and is expected to rule by late summer. So the count may soon be four. Or the government may yet find its way back to a number it prefers. As of June 9, 2026 the score stands at three, and even the most recent of those three is under active appeal by prosecutors who maintain the polite interview was the real al-Baluchi all along.

One honest footnote, kept separate because it is a different animal. In the civil detention cases, the habeas petitions where prisoners challenged being held at all, federal judges repeatedly declined to trust coerced statements when deciding whether the government could keep someone locked up. One tally put the government’s losses in such cases at eight or more. That reinforces the pattern: when coerced evidence gets examined, it tends to fall apart. But it is reliability-weighting in a detention fight, not a criminal court excluding evidence from a trial. Don’t let anyone fold the two together to inflate the number. The criminal number is three.

Why a New Hampshire paper is telling you this

Granite State Report covers New Hampshire: its statehouse, its agencies, the machinery this state uses to process the people who pass through it. This outlet has already made the argument that matters here. In Cruel and Constant, I argued that the Eighth Amendment’s promise against “cruel and unusual punishment” carries its own loophole, because the word “unusual” is doing load-bearing work. Make a cruelty common enough and you make it usual, and a thing that is merely cruel but no longer unusual sails straight through. Torture one prisoner behind a wall and it is unusual. Torture a thousand and it becomes business as usual. I anchored that in Concord, in the Secure Psychiatric Unit, where New Hampshire holds civilly committed patients who were charged with no crime inside a men’s prison run by corrections officers. Three people died in that system’s psychiatric custody in the last decade. The unit is still open.

This is the same mechanism, federalized. The CIA did not torture one man. It tortured everyone it captured, which is the point. Scale converts an atrocity into a procedure, and a procedure into something the courts are built to wave through. Strip away the geography and the federal letterhead and the torture-evidence machine runs on the logic of Cruel and Constant: cruelty that a system first normalizes and then arranges never to confront. The Concord version is smaller and less funded than the CIA’s. It is not a different species.

The Constitution that supposedly forbids cruel and unusual punishment is the same one that produced exactly three judges willing to enforce it against the worst thing this government did this century. That should trouble you whether you live in Kabul or in Concord.

We know the names of the psychologists who built the program. We know how many times Khalid Shaikh Mohammad was waterboarded: 183, by the government’s own records. We know what was done to al-Nashiri because a judge wrote it down. What we do not have is a single torturer ever made to answer for it, or more than three judges ever permitted to rule that the fruit of it did not count.

Three. Possibly four by August. In a quarter-century. Sit with that one.

— Dexter Dow, Granite State Report

Fact check

Editor’s note. Every factual claim above was verified against primary sources before publication; see the fact-check table. Procedural status in the 9/11 and USS Cole cases is current as of June 9, 2026 and will change as the litigation proceeds. Corrections: Granite State Report corrects verified errors promptly and appends a note identifying what changed and when.