In a joint letter Human Rights Watch and the American Civil Liberties Union yesterday called on the Attorney General, Eric Holder, to appoint a special prosecutor to fully investigate potential criminal violations in connection with CIA’s Rendition, Detention and Interrogation program. The two groups join Physicians for Human Rights, which last week called on President Obama to convene a federal commission to investigate abuses by medical professionals involved in the CIA program. The New York Times also released a statement from its editorial board, “Prosecute Torturers and Their Bosses”, insisting the Obama administration launch a criminal probe (note that the paper still hesitates to describe US crimes as “torture” and, if it does, refuses as a matter of policy to use this word in its full legal sense, as I showed in a recent article at BJR and a post here).
While the Department of Justice had already conducted an investigation into potential CIA crimes since 9/11, the recently-released executive summary of the Senate’s torture report “includes significant new information relating to the commission of serious federal crimes, including torture, homicide, conspiracy, and sexual assault,” the two groups write. That being so, the Attorney General must appoint a special prosecutor, furnish him or her with the complete, 6,700-page Senate report and also provide files from the former investigation led by John Durham (which concluded in 2012 without any charges being brought).
Durham might have had access to the six million pages of internal CIA records available to the Senate, the groups write, but the Committee “has now synthesized a huge volume of information into a narrative that clarifies the extent and seriousness of criminal conduct” and indicates “a vast criminal conspiracy, under color of law, to commit torture and other serious crimes.”
Moreover, Durham seemed not have interviewed any of the CIA’s victims. “We have been unable to find any evidence that Mr. Durham or his investigators interviewed any prisoner who was subjected to the RDI program,” the letter states. “The absence or paucity of victim interviews, particularly when many of the victims remain in U.S. custody, undercuts the credibility of the decision not to indict anyone for torture-related crimes.” The groups omit to mention that the Senate did not conduct any interviews for its own inquiry, which presumably makes the case for appointing a prosecutor even stronger.
Durham had determined that the admissible evidence was not sufficient to obtain a conviction for the (alleged) crimes he was investigating. The groups speculate that some of the evidence had been rendered inadmissible by the fear of defendants disclosing state secrets. But, with the declassification of the Senate’s summary, much new information has suddenly become publicly available. “With so much information about the CIA’s program now in the public domain, presumably the calculation as to what would be admissible without disclosure of state secrets would be different now,” they write.
Furthermore, Durham’s investigation seems to have focused only on CIA officials acting outside the guidance laid down by the Office of Legal Counsel (OLC) in its now-notorious “torture memos”. But the summary yields new evidence “that senior CIA officials did not rely on OLC guidance “in good faith,” but rather they knew that the conduct amounted to illegal torture before they ever sought the guidance and went looking for legal cover.” Indeed, the document shows how CIA officials drafted a letter to the then-Attorney General, John Ashcroft, requesting a declination of prosecution in advance, and other evidence details the Agency’s unsuccessful attempt to seek a guarantee of immunity from the Criminal Division of the Justice Department (the summary provides numerous examples of CIA personnel raising concerns about the legality of the torture program). That being so, the groups write, “the argument of good faith reliance on counsel appears inapplicable to some of the officials who were involved in conceptualizing, ordering, and executing these crimes.” Nor should the lawyers who drafted the memorandums “benefit from any presumption that they were fulfilling their responsibilities in good faith,” the letter states.
The groups insist that a new investigation is urgently required as officials who devised and authorized the torture program are still gracing the airwaves defending their conduct. Failing to investigate would “contribute to the notion that torture remains a permissible policy option for future administrations; undermine the ability of the United States to advocate for human rights abroad; and compromise Americans’ faith in the rule of law at home.” Moreover, the US is obligated under the UN Convention Against Torture and the International Covenant on Civil and Political Rights to effectively investigate all instances of torture, unlawful killing and enforced disappearance, and to prosecute those responsible (including top government officials).
Such calls are likely to fall on deaf ears, as the Justice Department stated soon after the summary’s release that it will not open a new investigation. In fact the Obama administration has given no indication whatsoever that it will consider prosecuting CIA and Bush-era officials, while the President, responding to the summary, recycled his now tired mantra that the US must “look forward, not back”, defending CIA officers as “patriots” responding to the nightmarish aftermath of 9/11.In fact groups like Human Rights Watch and the ACLU, along with United Nations officials, civil liberties activists and some journalists, have been calling for investigations of the Bush torture regime for years, but each time they do so the political establishment seems less and less receptive to their demands. The Intercept‘s Liliana Segura expressed her exasperation thus:
Not depressed enough so dug up thing I wrote in Nov 08: “If Obama Doesn’t Prosecute Bush’s Torture Team We’ll Pay a Big Price Down the Road”
— Liliana Segura (@LilianaSegura) December 22, 2014
When running for office in 2008, President Obama suggested his administration would investigate Bush-era officials for criminal misconduct, but he subsequently broke that promise by opposing all forms of accountability (including civil litigation brought by torture victims and a blue-ribbon federal commission). At least, back then, politicians were listening to calls for prosecution but, now, they have turned away and Congress seems united in its contempt for the rule of law. So The Hill reported, soon after the summary’s release, that “lawmakers on both sides of the issue have seemed opposed to the notion that either the U.S. or foreign governments should press charges against some CIA officials”. Even Senator Udall, one of the CIA’s fiercest critics, declined “to make a robust call for prosecutions either at home or abroad”, showing how deeply ingrained the principle of elite impunity has become. Needless to say, this tees things up nicely for a future administration intent on kidnapping suspects and torturing them in secret dungeons on the other side of the world. And, if this does indeed happen, then Democrats and Republicans must share the blame.
While the prospects for accountability in the US might be grim, there is already the chance another country will investigate. Last week the European Center for Constitutional and Human Rights filed a criminal complaint in Germany against members of the Bush administration for war crimes and called for an investigation by a German prosecutor. See here for more information.