US trials unlikely in CIA torture; foreign cases, maybe
Legal experts say action in international arena could spur domestic activity against those responsible for CIA torture program.
A damning Senate report on the CIA’s interrogation practices is unlikely to lead to a domestic investigation, say experts, who suggest that an international investigation may be more likely.
The Senate Intelligence Committee’s report made public previously unknown information regarding the CIA’s detention and interrogation program, which ran from late 2001 through early 2009.
While it is difficult to say which of the techniques brought to light in the report are the most shocking, several have generated considerable outrage.
The report noted that the CIA employed the use of nudity, waterboarding -- which the report said induces convulsions and vomiting, sleep deprivation for as long as 180 hours, and unnecessary "rectal hydration” and feeding.
It offers a grisly CIA account of one prisoner who was chained to a wall for 17 days in a standing position. Some of the detainees at that site, codenamed Detention Site Cobalt to preserve secrecy, "literally looked like a dog that had been kenneled," and "cowered" when their cells were opened, according to a senior CIA interrogator.
Another case study shows that a meal "of hummus, pasta with sauce, nuts, and raisins was pureed and rectally infused" into a prisoner listed as Majid Khan.
A 2009 Justice Department investigation, led by career federal prosecutor John Durham, into alleged mistreatment of detainees in American custody since the Sept. 11 terrorist attacks led to two criminal investigations.
But the department declined to indict anyone "because the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt."
The Justice Department said in a statement that the Senate’s investigation yielded no new information from that previously considered by investigators.
The White House said Wednesday that it defers to the Justice Department’s 2009 decision regarding any potential criminal investigations following the report’s release.
"That is the way that our criminal justice system works, which is that we have career federal prosecutors that are insulated from any sort of political interference, even the appearance of political interference. And the president accepts that’s the way that the system works," White House Press Secretary Josh Earnest told reporters.
He added, however, that even if the techniques yielded important national security information, a claim the CIA uses to rationalize the program -- refuted in the Senate report -- "the damage that it did to our moral authority in the mind of this president means that those interrogation techniques should not have been implemented in the first place."
But Jamil Dakwar, director of the American Civil Liberties Union Human Rights Program, said criminal prosecution is the "legal obligation" of the Obama administration. He said the Durham investigation continues to lack vital transparency regarding its scope, and whether it interviewed detainees who were subjected to the CIA’s interrogation efforts.
"We believe that the current fact that the administration has yet to provide information about this investigation requires additional steps particularly to address the lack of accountability for this program," he said. "If torture has been committed, then that is a crime."
The UN's special rapporteur on human rights and counter-terrorism agrees. Those responsible for the "criminal conspiracy" revealed in the report must face criminal penalties corresponding to the gravity of their crimes, said Ben Emmerson, the rapporteur.
"As a matter of international law, the U.S. is legally obliged to bring those responsible to justice," he said. "The perpetrators may be prosecuted by any other country they may travel to. However, the primary responsibility for bringing them to justice rests with the U.S. Department of Justice and the attorney general."
Ken Gude, a senior fellow at the Center for American Progress, said that, despite the severity of the revelations, he doubts a criminal investigation will be launched by the Justice Department.
"Because the Justice Department has already looked into this once, and the Obama administration seems reluctant to push the matter too far, legal accountability seems not really a high probability even in light of the new revelations we learned yesterday,” he said.
If such action were to be taken, it would likely stop short of investigating anyone higher than mid-level CIA officials, and would not touch former President George W. Bush or senior members of his Cabinet, Gude said.
"It would be officials who were responsible in actually constructing the plans for how to conduct these interrogations, and then the individuals themselves who conducted them," he said.
Meanwhile, legal experts are mulling the possibility of international prosecution.
The International Criminal Court at the Hague was established in 1998 as a court of last resort to prosecute the most heinous offenses in cases where national courts fail.
The U.S. is not a party to the Rome Statute, which established the court, meaning that its citizens -- military and civilian -- are exempt from prosecution by the court.
However, as some of the 54 countries that participated in the rendition program are ICC members, the court has the jurisdiction to prosecute the officials responsible for alleged crimes committed by the CIA in member states, according to Francis Boyle, a professor at the University of Illinois College of Law.
He filed a complaint with the prosecutor for the ICC, and it remains pending. He said this was a good sign, because in the past every complaint filed with the court against U.S. government officials was summarily rejected on jurisdictional grounds.
"I think the ICC will have to do something here to retrieve its reputation, because, unfortunately, so far all it has done is prosecute tin-pot dictators in Africa, which really undermined its credibility in the world, especially in Africa, where they call the ICC 'the white man’s court,'” Boyle said.
The complaint he filed also requests that the ICC prosecutor obtain international arrest warrants for George W. Bush, former Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, CIA Director George Tenet, Secretary of State Condoleezza Rice, and Attorney General Alberto Gonzales "for their criminal policy."
Boyle said possible ICC action could open the floodgates for domestic prosecution.
He also criticized Obama for his "look forward, not backwards” approach to torture committed by former administration officials, and for declining to instruct Attorney General Eric Holder or his designated successor, Loretta Lynch, to launch criminal action.
"That’s simplify baffling to me," he said noting that Obama is a fellow Harvard Law School graduate. "He knows better. There’s no excuse for this. Either he should order Holder, or his successor, Lynch, to start a criminal prosecution."
Lynch was nominated by Obama last month to replace Holder, who announced his resignation in September.
Even as experts weigh the prospects of international prosecution, Dakwar, of the ACLU, urged Obama uphold the rule of law and prosecute former officials, eliminating the need for international action.
"It's better for the U.S. justice system to deal with it rather than leave it to other countries to pick up what this administration is disinclined to do,” he said.
Last Modified: 2014-12-11 11:18:00
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