The Senate Intelligence Committee’s report on harsh treatment of detainees prompted renewed calls for legal action against CIA officers, but the Obama administration on Tuesday questioned the need for criminal prosecution.
No prosecutions would be warranted if the intelligence officers were carrying out U.S. government policy and following legal guidance, said senior White House officials who briefed reporters, speaking on condition of anonymity as a matter of policy. They further noted that a Justice Department special prosecutor declined to prosecute after an earlier investigation.
“We’re not going to aim to hold them accountable if they’re operating within the guidelines they’ve been given,” one of the officials said. The official added, “The Department of Justice has taken a broader look at this program and has made their own determination not to pursue prosecution.”
Nonetheless, the vivid and gruesome details revealed Tuesday in the committee’s 525-page summary triggered demands for civil or criminal proceedings, both in the United States and abroad. Vice President Joe Biden and White House Press Secretary Josh Earnest both indicated a decision is up to the Justice Department.
If legal actions proceed, they certainly won’t be quick.
“It could take 10 or 15 years to even begin to get accountability,” noted J. Wells Dixon, senior staff attorney with the Center for Constitutional Rights. “If accountability doesn’t start now, in this administration, it could come down the road.”
The courtroom hurdles may simply be too high, leaving to history rather than a jury the final judgment for what California Democratic Sen. Dianne Feinstein, chair of the intelligence panel, called the “use of brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values.”
However, the Bush administration’s Justice Department provided legal cover with a series of previously secret memos that authorized the harsh interrogation techniques.
CIA officers themselves seemed cognizant of steering clear of potential legal danger, the report shows. The report cites, for instance, an Aug. 12, 2002, memo to interrogators from CIA official Jose Rodriguez.
“Strongly urge that any speculative language as to the legality of given activities or, more precisely, judgment calls as to their legality . . . be refrained from in written traffic (email or cable traffic),” Rodriguez wrote. “Such language is not helpful.”
Criminal prosecutions would be the most dramatic legal fallout from the report. In theory, they might involve either the interrogations or their coverup.
“Credible allegations of torture and abuse must be fully investigated, and prosecuted where necessary,” Melina Milazzo, senior policy counsel for the Center for Victims of Torture, said Tuesday, “and victims of torture should be provided an effective right to a remedy, including the right to rehabilitation.”
Kenneth Roth, executive director of Human Rights Watch, added Tuesday that “unless this important truth-telling process leads to prosecution of the officials responsible, torture will remain a policy option for future presidents.”
In practice, U.S. prosecutions seem a hard sell; not least, because those with prosecutorial powers seem loath to use them and have political reason not to.
In 2008, longtime federal prosecutor John Durham was appointed to investigate whether a top CIA officer broke the law by destroying videotapes showing the waterboarding of two detainees. In 2010, Durham announced no charges would be brought. Durham also investigated the deaths of two detainees. Again, no charges were brought.
“I don’t think that’s something that’s been seriously discussed for a number of years,” Rep. Adam Schiff, D-Calif., who serves on the House Permanent Select Committee on Intelligence, said in an interview when asked about potential prosecutions.
Congress, moreover, has gone out of its way to protect interrogators from both civil and criminal liability.
In a 2005 law, Congress spelled out that U.S. interrogators could use as a defense in a civil or criminal case the fact that they did not know the interrogation practices were unlawful. Relying on the “advice of counsel” is specified as an “important factor” in determining what the interrogator knew.
Congress added more protections in a 2006 law, declaring that the federal government must pay for attorneys and other costs associated with defending interrogators in civil or criminal proceedings. In the same law, Congress gutted judicial authority over the handling of suspected terrorists.
The 2006 law states “no court, justice or judge” could hear challenges to “any aspect of the detention, transfer, treatment, trial, or conditions of confinement” of alleged enemy combatants. Citing this law, the U.S. Court of Appeals for the District of Columbia Circuit in 2012 dismissed a lawsuit filed by family members of three detainees who died at the U.S. prison at Guantanamo Bay, Cuba.
Still, the sheer scope of the Senate’s investigation begun in 2009, and the vivid details included in the executive summary, rekindles legal debate. The committee’s report concludes the CIA misled Congress and the White House, which could raise questions about false statements or obstruction.
“The committee based its analysis on reading 6 million pages of documents,” noted Christopher Anders, senior legislative counsel of the American Civil Liberties Union. “From how the Durham investigation seemed to be conducted, it did not appear like he did the kind of investigation the committee did.”
Anders added that Obama’s stated preference to look “forward, not back” on the CIA question was a “convenient formula at the beginning of his presidency” but may no longer be sustainable in the wake of compelling reports.
Obama himself inadvertently suggested one legal route, at least rhetorically, when on Aug. 1 he opined that “we tortured some folks.” Torture is illegal, and the United States is among 155 countries to sign the United Nations Convention Against Torture, which defines it as inflicting “severe pain or suffering, whether physical or mental.”
The treaty excludes from the torture definition “pain or suffering arising only from, inherent in or incidental to lawful sanctions,” which is a phrase open to interpretation.
“It’s an international treaty obligation,” noted Dixon of the Center for Constitutional Rights. “If a state is unwilling or unable to prosecute, other countries (can).”
The European Court of Human Rights ruled in July that Poland violated its international obligations by allowing U.S. officials to detain and torture two men at a secret Polish site. The court ordered Poland to pay a total of $300,000 to the two men: Abu Zubaydah, suspected of running an al Qaida facility in Pakistan, and Abd al-Rahim al-Nashiri, believed to have planned the attack on the USS Cole.
Both men are being held at the U.S. facility at Guantanamo Bay.