Taking Action Against Torture
December 11, 2014 Leave a comment
On Tuesday the U.S. Senate Intelligence Committee released its long-awaited report on the aggressive “enhanced interrogation” program carried out by the CIA in the aftermath of the Sept. 11, 2001 attacks. The report, which is described as
an exhaustive five-year Senate investigation of the CIA’s secret interrogations of terrorism suspects
is a 528 page redacted summary of the committee’s full 6,700-page report on the CIA’s detention and interrogation programs carried out between 2002 and 2006 under President George W. Bush. The larger report remains classified, and is not slated for public scrutiny.
The release of the summary report had been held up by months over disagreements between the Committee’s Chairperson, Dianne Feinstein, and the Obama Administration over the amount of information in the report that the Administration wished to have censored.
The CIA also made attempts to smother the report and engaged in various obstructionist activities, including hacking into the Senate computers, spying on committee staffers, and filing baseless criminal reports with the Justice Department to halt the investigation.
The released report received massive coverage by the media on Tuesday, with many news agencies providing links to the full text of the report (e.g. The New York Times and the Washington Post. The full text is also available here.
The New York Times called the report
a sweeping indictment of the Central Intelligence Agency’s program to detain and interrogate terrorism suspects in the years after the Sept. 11 attacks
revealing practices that
were more brutal — and far less effective — than the agency acknowledged either to Bush administration officials or to the public.
The Washington Post reported that
The 528-page document catalogues dozens of cases in which CIA officials allegedly deceived their superiors at the White House, members of Congress and even sometimes their peers about how the interrogation program was being run and what it had achieved
Various summaries and overviews of the Senate Intelligence Committee Report have been provided to help the reader to digest its findings. The Moyers & Company website has produced a 20 point overview of the report’s findings and the New York Times has produced an even more succinct summary of “7 Key Points” of the report, with links to the sections of the report where these points are specifically discussed.
Human Rights Watch summarizes the findings this way:
The summary concludes that CIA abuses were far more brutal, systematic, and widespread than previously reported; that many of the CIA’s interrogation techniques went beyond even those authorized by the Justice Department; and that the CIA began using the techniques long before they had obtained authorization for them.
The summary describes many previously reported facts about the CIA torture program, including the agency’s use of painful stress positions, forced standing, extended sleep deprivation, extensive bright light and loud noise exposure, waterboarding, and throwing detainees against walls or closing them into coffins.
It also contains new details showing that CIA torture was even more brutal than previously thought. The agency used painful restraints, imposed punitive “anal feeding” or “anal rehydration,” and forced detainees with broken leg bones to stand shackled against walls.
In an introduction to the report, Senate Committee Chairperson Dianne Feinstein states,
it is my personal conclusion that, under any common meaning of the term, CIA detainees were tortured. … I believe the evidence of this is overwhelming and incontrovertible.
Republican Senator John McCain, himself a survivor of capture and torture during the Vietnam War, responded to the report on the floor of the Senate saying,
I believe the American people have a right – indeed, a responsibility – to know what was done in their name; how these practices did or did not serve our interests; and how they comported with our most important values.
I commend Chairman Feinstein and her staff for their diligence in seeking a truthful accounting of policies I hope we will never resort to again. I thank them for persevering against persistent opposition from many members of the intelligence community, from officials in two administrations, and from some of our colleagues.
The truth is sometimes a hard pill to swallow. It sometimes causes us difficulties at home and abroad. It is sometimes used by our enemies in attempts to hurt us. But the American people are entitled to it, nonetheless.
McCain then went on to state,
I know from personal experience that the abuse of prisoners will produce more bad than good intelligence. I know that victims of torture will offer intentionally misleading information if they think their captors will believe it. I know they will say whatever they think their torturers want them to say if they believe it will stop their suffering. Most of all, I know the use of torture compromises that which most distinguishes us from our enemies, our belief that all people, even captured enemies, possess basic human rights, which are protected by international conventions the U.S. not only joined, but for the most part authored. …
But in the end, torture’s failure to serve its intended purpose isn’t the main reason to oppose its use. I have often said, and will always maintain, that this question isn’t about our enemies; it’s about us. It’s about who we were, who we are and who we aspire to be. It’s about how we represent ourselves to the world.
President Obama echoed McCain’s words in his own statement on the Spanish-language television network, Telemundo, in which he stated that
some of the tactics written about in the report were brutal, and as I’ve said before, constituted torture, in my mind. And that’s not who we are.
A Question of Accountability
The acts committed by CIA operatives in these detention centers clearly amounted to torture. And the United States is a signatory to several international treaties forbidding torture. That makes these actions criminal offenses under international law.
President Obama, in his address on Telemundo, spoke of these acts as “mistakes” saying that it was important for this report to be made public to “hopefully make sure that we don’t make those mistakes again.
But this avoids the issue of culpability. As Reed Brody of Human Rights Watch notes,
These aren’t mistakes. These are crimes.
In her introduction to the Senate Intelligence Committee report, Diane Feinstein admitted that
the detention and interrogation program was conducted in “violation of US law, treaty obligations and our values.”
Citing the U.N. Convention Against Torture, Brody notes that in addition to stating that torture can never be justified under any circumstances, the Convention also explicitly states that
torture must be prosecuted, that when someone is alleged to have committed torture, the state concerned must refer that case to their competent authorities for the purpose of prosecution.
it’s not enough … to say, “Well, we tortured some folks, this was a bad policy choice, I’m going to put a stop to the torture.” … It is not a policy choice. … It is a crime. And … if there [is] really going to be any deterrence for this not happening again, there needs to be prosecutions.
In August 2009 Amnesty International stated the case far more bluntly:
What do we know about the secret detention programme operated by the Central Intelligence Agency (CIA) under authority granted by President George W. Bush on September 17, 2001?
We know that detainees in secret CIA custody were tortured. Torture is a crime under international law.
We know that detainees were subjected to enforced disappearance, also a crime under international law.
We know that no one has been prosecuted for authorizing or committing these crimes.
It has been suggested by some, that rather than taking the nation through the difficult and wrenching process of publicly prosecuting high ranking individuals from the Bush administration (including George W. Bush himself), President Obama should grant pardons to those involved and move on. Anthony Romero, Executive Director of the American Civil Liberties Union (ACLU), stated that
Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware.
However, Ben Emmerson, the independent British Special Rapporteur on counter terrorism and human rights, warns that under international law,
governments are not free to maintain or permit impunity for such grave crimes.
He notes that
International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorized these crimes.
The fact that the policies revealed in this report were authorized at a high level within the US Government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability.
The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.
The US Attorney General is under a legal duty to bring criminal charges against those responsible
Human Rights Watch had also warned that
the US commitment to human rights in combating terrorism will remain suspect unless and until the current administration confronts the past. Only by fully and forthrightly dealing with those responsible for systematic violations of human rights after September 11 will the US government be seen to have surmounted them.
Without real accountability for these crimes, those who commit abuses in the name of counterterrorism will point to the US mistreatment of detainees to deflect criticism of their own conduct. Indeed, when a government as dominant and influential as that of the United States openly defies laws prohibiting torture, a bedrock principle of human rights, it virtually invites others to do the same.
And it adds that,
The US government’s much-needed credibility as a proponent of human rights was damaged by the torture revelations and continues to be damaged by the complete impunity for the policymakers implicated in criminal offenses.
In fact, the very same day that the Senate report was released, China’s state-run Xinhua news agency issued a statement saying that, “America is neither a suitable role model nor a qualified judge on human rights issues in other countries,” and that instead of criticizing China’s human rights record, “the United States needs to clean up its own human rights problems.”
The Case for Prosecution
Is there enough evidence to mount a case for prosecuting those involved? Emmerson believes so, saying,
Prosecution should not be problematic because the Senate Committee members know the perpetrators’ identities and many other details that were redacted.
He adds that,
It is no defense for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorization they were given by their superiors.
But it will be insufficient to merely charge a few lower level agents who acted on orders from above. Accountability must go all the way to the top.
In 2011 Human Rights Watch released a report based on over 100,000 pages of government documents that have been declassified and are now part of the public record. It concluded that there was compelling evidence warranting a criminal investigation into the actions of the following key individuals:
President George W. Bush, [who] had the ultimate authority over detainee operations and authorized the CIA secret detention program, which forcibly disappeared individuals in long-term incommunicado detention.
CIA Director George Tenet, [who] authorized and oversaw the CIA’s use of waterboarding, near suffocation, stress positions, light and noise bombardment, sleep deprivation, and other forms of torture and ill-treatment.
In addition, Human Rights Watch reports that
there should be criminal investigations into the drafting of legal memorandums seeking to justify torture, which were the basis for authorizing the CIA secret detention program. The government lawyers involved included Alberto Gonzales, counsel to the president and later attorney general; Jay Bybee, assistant attorney general in the Justice Department’s Office of Legal Counsel (OLC); John Rizzo, acting CIA general counsel; David Addington, counsel to the vice president; William J. Haynes II, Defense Department general counsel; and John Yoo, deputy assistant attorney general in OLC.
All of these individuals are complicit in approving these acts of torture, which are condemned under the U.N. Convention Against Torture and other international treaties that the United States is a signatory to.
Although U.S. agencies may be hesitant to prosecute these individuals, they will have no immunity from international law. If convicted, they may remain free within the boundaries of the United States, but will never be free to travel outside the U.S. again.
Photo credits: Reuters; Saul Loeb/AFP/Getty Images