It turns out there might be prosecutions related to Bush-era torture -- but it probably won't be against anyone involved with the program.
Parts of a still-classified Senate report on Bush-era interrogations were leaked to McClatchy newspapers last week, prompting Senate Intelligence Committee Chair Dianne Feinstein to call for an investigation.
“If someone distributed any part of this classified report, they broke the law and should be prosecuted," Feinstein said last week in a statement. "The committee is investigating this unauthorized disclosure and I intend to refer the matter to the Department of Justice.”
The Senate voted to send parts of the investigation to the White House for declassification in early April -- but the Central Intelligence Agency itself will play a role in deciding what will ultimately be released to the public. McClatchy's article publishing leaked details of the Senate investigation added to previous reports that the CIA broke the law and mislead its overseers regarding the Bush-era torture program. According to McClatchy, the CIA went beyond the legal interrogation guidelines set by the Bush administration, and "impeded" oversight by Congress, the Bush White House, and even its own inspector general. In 2012, the Justice Department concluded an investigation into the program that ended without any indictments.
"The concern here is that the CIA has obstructed the oversight process on multiple occasions, so the fact that it's in charge of a declassification, I think, raises the possibility that we have an agency with a clear conflict of interest in deciding what information the public is going to ultimately see," said Raha Wala, an attorney with Human Rights First. "The solution here is for the president to move forward and ensure that the White House plays a leading role in the declassification process and not leave it up to the CIA to get this information out to the public."
The report itself is already the focus of a conflict between the Senate intelligence committee and the CIA. Feinstein has accused the agency of violating the law and the Constitution by searching computers set up for the committee's investigation. The CIA has accused Senate intelligence committee staffers of unauthorized acquisition of classified information, a charge Senate Majority Leader Harry Reid has described as "absurd."
Feinstein's call for an investigation into the leak to McClatchy raises the very real possibility that someone could be prosecuted for leaking information about torture, but not for torturing anyone.
"The focus on leaks and potential criminal prosecutions of leakers is concerning, but I think the ultimate goal here needs to be to make this information public," Wala said. "We would support doing this in a regular manner that doesn't lead to excluding essential information about the torture program."