Calls for accountability are growing louder following the release Tuesday of a damning Senate report about the Central Intelligence Agency’s “brutal” interrogation techniques in the years following Sept. 11, 2001.
The United Nations, human rights groups, and now, a U.S. lawmaker have all urged President Obama to take action against those in the previous administration who perpetrated, authorized, or otherwise facilitated acts of torture against prisoners held at CIA detention sites.
Approximately 600 pages of the committee’s findings offer an unprecedented level of detail about the CIA’s tactics, which included sleep deprivation, confinement, rectal feeding, and waterboarding, among others. In one instance, the report found, a prisoner died of apparent hypothermia at a secret detention site named “Cobalt,” after being left naked overnight, chained to a cold concrete floor. The junior officer who had been placed in charge of Cobalt – despite having “no relevant experience,” according to the report – was later given a $2,500 cash bonus for his “consistently superior work.”
The full report is 6,700 pages long, and rights advocates are pressing for more to be declassified, including the identities of CIA operatives engaged in such acts.
“Why aren’t their real names being used?” asked Andrea Prasow, deputy Washington director at Human Rights Watch, on msnbc Wednesday. “These are people who should be indicted for their criminal activity. They shouldn’t have their identities protected.”
Her remarks echo those of Ben Emmerson, the U.N. special rapporteur on counter terrorism and human rights, who called the CIA’s interrogation program a “criminal conspiracy” in a statement Tuesday, one that must yield “criminal penalties commensurate with the gravity of [the] crimes.” The American Civil Liberties Union and Amnesty International have made similar calls for a thorough investigation.
But President Obama said in a statement following the Senate report’s release that he saw no reason to “re-fight old arguments.” He also expressed sympathy for former President Bush and his team, saying that they faced “agonizing choices” in the wake of Sept. 11. In an interview with msnbc’s Joy Reid Tuesday, Attorney General Eric Holder followed his boss’ lead and condemned the CIA’s actions not on legal, but on moral ground.
“I can’t honestly say that crimes were committed,” said Holder. “They might have been ‘legal’ in the strictest sense of the word, but in many ways they were immoral.”
The Justice Department has twice investigated the CIA’s abuse of prisoners, but concluded that there was not enough evidence to secure a viable prosecution. Former CIA detainees claim they were never interviewed as part of a U.S. probe – something Human Rights Watch now points to as further evidence that Holder should reopen an investigation.
“Attorney General Holder is wrong,” Prasow told msnbc’s Andrew Mitchell. “No lawyer can read that report and not see a clear case of criminal liability for many people up to the highest levels of the former administration.”
In the strongest condemnation from a U.S. lawmaker yet, outgoing Sen. Mark Udall on Wednesday called for the resignation of CIA Director John Brennan, and accused the White House of a “refusal to be open” during the process of making redactions to the report.
“It is bad enough not to prosecute these officials — but to reward or promote them and risk the integrity of the U.S. government to protect them is incomprehensible,” said Udall on the Senate floor. “The president needs to purge his administration of high-level officials who were instrumental to the development and running of this program.”
If the Obama administration remains unwilling to pursue national proceedings against individuals responsible for the CIA’s interrogation program, legal experts see a chance – albeit, a very slim one – that the matter could end up in foreign courts. A week before the Senate report came out, the chief prosecutor of the International Criminal Court (ICC) announced that her office was examining the U.S. treatment of detainees captured in Afghanistan. The inquiry is not yet a formal investigation, but Eugene Kontorovich, a professor at Northwestern University School of Law, told msnbc that the Senate report “provides a basis for broadening and pushing along the ICC investigation.”
However, he continued, U.S. officials shouldn’t worry about being shipped off to The Hague anytime soon. For one thing, said Kontorovich, “it’s quite unlikely that the ICC would press charges against Americans because it wants American support so badly.” Secondly, he added, the U.S. is not party to the ICC and has no reason to cooperate in the unlikely event that they did bring charges.
Other experts say President Obama has an obligation to initiate prosecution, or to extradite people to a country that will, under both the 1949 Geneva Conventions – which prohibits inhumane confinement and torture of prisoners during wartime – and the 1984 United Nations Convention against Torture – which requires signatories (such as the U.S.) to prosecute cases of cruel, inhuman or degrading treatment. Human rights attorneys have brought criminal cases against the U.S. military and CIA agents in Germany, Italy, Spain, and Switzerland, and could use the Senate report to take fresh legal action against high-level American officials, maybe even President Bush.
“I like to say as a professor of law, who has no animus or hatred of Mr. Bush, that he has admitted to certain things that I think make him beyond a reasonable doubt reasonably accused of having authorized international crimes,” said Jordan J. Paust, a professor at the University of Houston Law Center, to msnbc. “In 2006, he admitted to a program of secret detention. That’s a crime… In his 2010 book, he says he authorized waterboarding. I call that an admission on the criminal side.”
Here again, experts see this type of prosecution on foreign soil highly unlikely, especially in light of Obama’s mixed record on torture. “I think that President Obama would do everything to stop it for the same reason that President Obama would want to travel abroad after his presidency,” said Kontorovich.
Steve Vladeck, co-editor in chief of Just Security, agreed that the growing calls for prosecutions, here or abroad, will likely be in vain.
“It’s a classic case of the chasm between politics and policy,” he told msnbc. “I think there could be prosecutions, and I think it would not be that hard to establish that some people broke a whole bunch of laws. But I think this is not a fight that this administration wants, and I think President Obama has been fairly clear on that point since long before the torture report came out.”
But, added Vladeck, avoiding this particular type of accountability may not be such a bad thing.
“Prosecutions are not about establishing truth, they’re about establishing liability,” he said. “President Obama would be well within his rights to be more interested in establishing truth.”