Time for an international tribunal on CIA torture
Thanks to a number of intrepid journalists working to learn the details of the still-classified 6,300-page report on the CIA’s torture and rendition program, we now know that the human rights abuses committed in the war on terror have included clear-cut cases of law-breaking, even going beyond the overly permissive interrogation guidelines of the Bush White House and Justice Department.
As Jason Leopold reported yesterday at Al Jazeera America,
According to the Senate report, Al Jazeera’s sources said, a majority of the more than 100 detainees held in CIA custody were detained in secret prisons in Afghanistan and Morocco, where they were subject to torture methods not sanctioned by the Justice Department. Those methods are recalled by the report in vivid narratives lifted from daily logs of the detention and interrogation of about 34 high-value prisoners. The report allegedly notes that about 85 detainees deemed low-value passed through the black sites and were later dumped at Guantánamo or handed off to foreign intelligence services. More than 10 of those handed over to foreign intelligence agencies “to face terrorism charges” are now “unaccounted for” and presumed dead, the U.S. officials said.
To be clear, what we are talking about here are not policy disputes, but unambiguous incidents of abduction, torture, forced disappearances and homicide. It has long been apparent that these actions have been conducted in violation of international law, but what is new about the revelations coming to light from the Senate torture report is that the harsh interrogation techniques used by the CIA have gone well beyond what was sanctioned by the Justice Department.
This is significant because for years, the justification that the Obama administration has used in avoiding criminal prosecutions of CIA officers implicated in torture is that they were operating under legal guidelines provided by the Department of Justice and White House Office of Legal Counsel.
As president-elect Obama indicated just before taking office in 2009, there should be prosecutions if “somebody has blatantly broken the law” but that in general, the CIA should have no fear of “looking over their shoulders and lawyering up.”
Speaking on ABC’s This Week on Jan. 11, 2009, he said:
We’re still evaluating how we’re going to approach the whole issue of interrogations, detentions, and so forth. And obviously we’re going to look at past practices. And I don’t believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you’ve got extraordinarily talented people who are working very hard to keep Americans safe. I don’t want them to suddenly feel like they’ve got to spend all their time looking over their shoulders and lawyering up. …
[W]e have not made any final decisions but my instinct is for us to focus on how do we make sure that moving forward, we are doing the right thing. That doesn’t mean that if somebody has blatantly broken the law, that they are above the law. But my orientation’s going to be to move forward.
The Bush administration had authorized interrogation tactics like waterboarding that likely went beyond what is permitted under federal laws and international treaties, but the defenders of the torture program had always said their actions were legal under a president’s wartime powers.
Now, however, that we know that the torture and abductions went beyond the legal guidelines offered to provide CIA officers with “the color of law” in carrying out their brutal interrogations, this argument no longer holds water. But rather than following up on his earlier pledges to hold those accountable who had “blatantly broken the law,” Obama is now obliquely implying that there will likely be no prosecutions for blatant law-breaking.
In a statement regarding the controversy, Obama said on March 12:
The first day I came into office, I ended the practices that are subject to the investigation by the Senate committee, and have been very clear that I believed they were contrary to our values as a country. Since that time, we have worked with the Senate committee so that the report that they are putting forward is well informed and what I have said is that I am absolutely committed to declassifying that report as soon as the report is completed. In fact, I would urge them to go ahead and complete the report and send it to us and we will declassify those findings so that the American people can understand what happened in the past and that can help guide us as we move forward.
With respect to the issues that are going back and forth between the Senate committee and the CIA, John Brennan has referred them to the appropriate authorities and they are looking into it and that’s not something that is an appropriate role for me and the White House to wade into at this point. But the one thing that I want to emphasize is that the substantive issue, which is how do we operate even when we are threatened, even when even gone through extraordinary trauma has to be consistent with the rule of law and our values. And I acted on that on the first day and that hasn’t changed.
What is conspicuously absent from that statement is any indication that prosecutions may ensue for the violations of the law that we now know have occurred.
For this reason, it is becoming painfully obvious that the only possibility for accountability may be an international tribunal to take the lead in prosecuting these crimes.
It should be pointed out that there is a legally binding obligation under the Convention Against Torture to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature.”
This provision recognizes that it is only in a climate of impunity – such as the climate that currently exists in the United States – that the crime of torture is able to take place.
In order to prevent this climate of impunity from being institutionalized, under the terms of the Convention (which the U.S. has ratified), a state party that is not fulfilling its obligations to prosecute torture may be referred to a committee to adjudicate the matter.
It’s time for this adjudication to take place. If it doesn’t, CIA criminality and impunity will become even further entrenched, with ominous implications for the whole world.