Without prosecutions, Senate’s ‘reaffirmation’ of torture prohibition largely meaningless

Human rights groups are welcoming the Senate’s adoption yesterday of an anti-torture amendment as part of the National Defense Authorization Act (NDAA) for Fiscal Year 2016, despite the fact that it doesn’t provide for any accountability to those who have authorized or committed torture in the past.

Officially called “the reaffirmation of the prohibition on torture,” the amendment, introduced last week by Senator John McCain (R-Ariz.) and Dianne Feinstein (D-Calif.), effectively prohibits U.S. officials from using torture techniques including mock executions, sexual humiliation, hooding prisoners and waterboarding by requiring they follow the U.S. Army Field Manual. It was adopted by a vote of 78-21.

“Without this amendment, abuses committed in the name of national security, such as forced rectal feeding and mock burials, would be all too easy for the CIA to repeat in a climate of fear-mongering about terrorism,” said Amnesty International USA’s executive director, Steven W. Hawkins.

Human Rights First praised what it called the “historic bipartisan amendment that prevents the future use of torture by any U.S. government agency.” The legislation, according to the group, will “ensure that the use of torture or cruel treatment is never again the official policy of the United States.”

But will it?

The fact remains that the torture techniques authorized by the White House and committed by the CIA in the years following 9/11 were already illegal – serious violations of both international law and domestic law – so it’s not entirely clear what is new about this “reaffirmation” of the prohibition on torture.

In fact, torture has long been banned by Common Article 3 of the four Geneva Conventions, which was further codified by the 1987 UN Convention Against Torture (CAT). The CAT provides a clear-cut definition of what constitutes the practice — which the U.S. is clearly guilty of as documented in the Senate report on torture released last year.

As stated in Article 1 of the CAT:

[T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The CAT further unambiguously states that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

As a state party to both the Geneva Conventions and the CAT, the United States has adopted domestic legislation to ensure compliance with the treaties’ provisions. The War Crimes Act punishes any grave breach of the Geneva Conventions, including any violation of Common Article 3.

The Torture Statute, formally known as Title 18, Part I, Chapter 113C of the U.S. Code, provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States. (Domestic incidents of torture are covered by state criminal statutes.)

The law consists of three sections (2340, 2340A, and 2340B), which define the crime of torture.

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

In other words, it is not enough for the Senate to simply “reaffirm” a so-called “torture ban.” There is a legally binding obligation under the Convention Against Torture, in fact, 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.”

For its part, Amnesty International did acknowledge yesterday – despite generally welcoming the Senate vote – that more must be done to bring the United States into compliance with its international obligations:

This legislation is one step of many that the U.S. government must take to guard against a return to torture and other ill-treatment and abide by its international human rights obligations. The U.S. government has not brought any criminal charges against those responsible for torture and enforced disappearances in the CIA secret detention program. Nor has the U.S. government withdrawn U.S. reservations to UN human rights treaties—reservations that the George W. Bush-era Justice Department Office of Legal Counsel exploited to write permission slips for torture and other ill-treatment.

The torturers in the CIA have for too long been protected by the Obama administration and U.S. Department of Justice, even while human rights defenders and whistleblowers such as John Kiriakou, Jeffrey Sterling and Chelsea Manning have been sent away for long prison terms for much less serious offenses. It is long past time for this double standard to be lifted and the committers (and authorizers) of torture to be prosecuted to the fullest extent of the law.

Leak cases’ double standards bolster political prisoner claims

Although many government officials and contractors have gone to prison in recent years as a result of the Obama administration’s unprecedented “war on whistleblowers,” David H. Petraeus, the retired general and former director of the CIA, won’t spend a day behind bars if the government has its way.

This is despite the fact that Petraeus has agreed to plead guilty to giving highly sensitive classified information to Paula Broadwell, his biographer and mistress, in 2011 – a crime comparable to those of Stephen Jin-Woo Kim, a former State Department intelligence advisor, who was sentenced to 13 months in prison after pleading guilty to disclosing a report about North Korea to a reporter, or John Kiriakou, a 14-year CIA veteran, who got 30 months for disclosing to a reporter the identity of an undercover operative who subjected suspected terrorists to torture.

There is also the ongoing case of former CIA officer Jeffrey Sterling who was charged under the Espionage Act for disclosing classified information about an ill-conceived and reckless CIA mission meant to slow Iran’s nuclear program to New York Times reporter James Risen, who then wrote about the CIA’s Iranian plot in his 2006 book, State of War. A Washington, DC, area jury convicted Sterling last month and he now faces a prison sentence of up to 80 years.

Then of course there is the case of Pfc. Chelsea (formerly Bradley) Manning, a former Army intelligence officer who is serving a 35-year prison sentence for divulging three important bodies of documents to WikiLeaks: the Iraq war logs, which consist of 391,000 field reports, 90,000 Afghan war logs, providing a devastating portrayal of the deteriorating war in Afghanistan, and 260,000 diplomatic cables, possibly the most controversial of his leaks.

The government had sought a 60-year prison sentence for the Army private, with military lawyers saying that a stiff sentence was necessary to send a message to other conscientious soldiers or government employees who might be considering exposing government wrongdoing.

“This court must send a message to those who release confidential information,” prosecutor Army Capt. Joe Morrow said to Judge Denise Lind. “There is value in deterrence, Your Honor. This court must send a message to any soldier contemplating stealing classified information.”

As Nathan Fuller of the Bradley Manning Support Network explained at the time,

The prosecution insisted there has to be deterrence and we need to set an example out of Bradley Manning. They made it clear that anyone else thinking of releasing classified info should look at Manning. They want to go above and beyond what would be considered a reasonable sentence.

In contrast, the plea deal reached with Petraeus for leaking Top Secret/Secure Compartmented Information materials to his mistress – with a punishment of a $40,000 fine and two years of probation – amounts to a slap on the wrist.

This discrepancy of punishment is all the more glaring considering the sensitivity of the materials that he disclosed. According to the criminal complaint, among the materials in the eight “Black Books” Petraeus shared with Broadwell were:

…classified information regarding the identities of covert officers, war strategy, intelligence capabilities and mechanisms, diplomatic discussions, quotes and deliberative discussions from high-level National Security Council meetings, and defendant DAVID HOWELL PETRAEUS’s discussions with the President of the United States of America.

The Black Books contained national defense information, including Top Secret/SCI and code word information. Petraeus reportedly kept those Black Books full of code word information including covert identities and conversations with the President “in a rucksack up there somewhere.”

The blatant inconsistency in the treatment of Petraeus and other, less favored government leakers such as Kiriakou, Sterling and Manning has been obvious enough to lead to a flurry of commentary lamenting the apparent double standards of the government. “The whiff of a double standard is overwhelming,” wrote the Los Angeles Times in an editorial today. “If anything, a leader at Petraeus’ level should be held to a higher standard than lower-level officials or contractors.”

But in a deeper sense, these wildly divergent sentences are not just evidence of double standards, but of the fact the U.S. government engages in a systematic policy of repression of political “enemies,” solidifying the status of victims such as Manning as political prisoners.

While there is no single internationally agreed upon designation of what constitutes a political prisoner, the intergovernmental organization Council of Europe in 2012 agreed upon one of the most useful and balanced definitions ever put forward.

The resolution adopted  by the Parliamentary Assembly of the Council of Europe includes the following criteria: “if, for political motives, the length of the detention or its conditions are clearly out of proportion to the offence the person has been found guilty of or is suspected of,” or “if, for political motives, he or she is detained in a discriminatory manner as compared to other persons.”

With the slap on the wrist that Petraeus is receiving for divulging classified documents, it stretches credulity to argue that Manning and Sterling are not being treated in a discriminatory manner, or that the length of detention is consistent with the crime. After all, how can one person get a 35-year sentence and another never spend a day in jail for committing essentially the same offense? It’s clear that the government has singled out Manning for a discriminatory, unnecessarily harsh sentence, and if they have their way will do the same to Sterling.

This makes them political prisoners.

A cacophony of demands for accountability follows long-delayed release of CIA ‘torture report’

From the United Nations and the European Union to Human Rights Watch and Amnesty International to the governments of China and Afghanistan, voices are being raised around the world demanding accountability in response to the long-delayed release of the U.S. Senate’s CIA torture report.

The report’s 500-page executive summary — the full 6,000 pages are still classified — details gruesome techniques used against prisoners detained for suspected ties to terrorism, including practices such as near drowning, forcing detainees to stand on broken legs, threatening to kill or rape detainees’ family members, forced “rectal feeding” and “rectal hydration,” and disturbing details on a medieval “black site” prison in Afghanistan known as the Salt Pit, where at least one detainee froze to death.

The brutal interrogation sessions lasted in many cases non-stop for days or weeks at a time, leading to effects such as “hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation,” and produced little to no useful information – raising serious questions about whether the torturers were motivated by genuine intelligence-gathering concerns or were simply acting out of sadism and cruelty.

While some voices being raised, such as those of the UN and Amnesty International, have been explicit in their calls for criminal prosecutions of the architects of the torture policies detailed in the report, others such as the EU and the governments of U.S. allies such as Great Britain are a bit more muted and conciliatory to the U.S. government.

Nevertheless, virtually all are unequivocally condemning the U.S. regime of enforced disappearances, extraordinary rendition, indefinite detention and torture that has defined U.S. counter-terrorism policies since Sept. 11, 2001.

Some of the strongest words have come from the UN Special Rapporteur on Human Rights and Counterterrorism Ben Emmerson, who stated unequivocally on Tuesday that senior officials from the Bush administration who sanctioned crimes, as well as the CIA and U.S. government officials who carried them out, must be prosecuted.

In a statement issued following the release of the report, the UN rapporteur said:

It is now time to take action. The individuals responsible for the criminal conspiracy revealed in today’s report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.

The fact that the policies revealed in this report were authorised at a high level within the US Government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability.

International law prohibits the granting of immunities to public officials who have engaged in acts of torture. This applies not only to the actual perpetrators but also to those senior officials within the US Government who devised, planned and authorised these crimes.

He further emphasized the United States’ international obligation to criminally prosecute the architects and perpetrators of the draconian torture methods described in the report:

As a matter of international law, the US is legally obliged to bring those responsible to justice. The UN Convention Against Torture and the UN Convention on Enforced Disappearances require States to prosecute acts of torture and enforced disappearance where there is sufficient evidence to provide a reasonable prospect of conviction. States are not free to maintain or permit impunity for these grave crimes.

It is no defence for a public official to claim that they were acting on superior orders. CIA officers who physically committed acts of torture therefore bear individual criminal responsibility for their conduct, and cannot hide behind the authorisation they were given by their superiors.

In particular, “The U.S. attorney general is under a legal duty to bring criminal charges against those responsible,” he added.

Zeid Raad al-Hussein, the UN High Commissioner for Human Rights, said that it’s “crystal clear” under international law that the United States has an obligation under the UN Convention against Torture to ensure accountability.

“In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture — recognized as a serious international crime — they cannot simply be granted impunity because of political expediency,” he said.

UN Secretary-General Ban Ki-moon expressed hope that the torture report is the “start of a process” toward prosecutions, because the “prohibition against torture is absolute,” Ban’s spokesman said.

The UN’s calls were echoed by those of Amnesty International, the American Civil Liberties Union and Human Rights Watch, who in separate statements demanded that the individuals responsible for these policies be brought to justice.

Noting that the Senate report “must not be end of story,” Amnesty International lamented that limited Justice Department investigations into CIA interrogations were ended in 2012 with no charges. “Access to justice for those who endured abuses has been systematically blocked by U.S. authorities, including on the grounds of state secrecy,” noted Amnesty.

Said Erika Guevara, Americas Director of Amnesty International:

The declassified information contained in the summary, while limited, is a reminder to the world of the utter failure of the USA to end the impunity enjoyed by those who authorized and used torture and other ill-treatment. This is a wake-up call to the USA, they must disclose the full truth about the human rights violations, hold perpetrators accountable and ensure justice for the victims. This is not a policy nicety, it is a requirement under international law.

The ACLU’s Hini Shamsi stated:

The release of the Senate’s torture report summary is a tipping point and a reminder that the United States has never fully reckoned with a past that includes waterboarding, stress positions, beatings, sleep deprivation, threats of harm to children and other family members, among many devastatingly cruel acts. Once again, Americans, all of us, have an opportunity to choose how we end this story, whether that’s responsibly, with a full return to our laws and values, or shamefully, by failing to act now that the report summary is released. A conclusion that begins to heal wounds and rebuild U.S. credibility as a defender of rights instead of a perpetrator of rights violations consists of five parts, all of which work together to ensure that our nation never tortures again.

Shamsi offered a blueprint for accountability that includes the appointment of a special prosecutor, CIA reform, apologies to victims, and full disclosure.

Human Rights Watch said that President Obama should use his last two years in office to prosecute the crimes that the report has revealed. HRW Executive Director Kenneth Roth noted that “the Senate report summary should forever put to rest CIA denials that it engaged in torture, which is criminal and can never be justified.”

In an op-ed published by Reuters, Roth called out the lawyers of the Bush administration who provided legal rationales for torture, noting that “it is regrettable that those senior George W. Bush administration lawyers have escaped accountability for their complicity in torture, given their obligation as public officials and their ethical duty as lawyers to uphold the law.”

Their twisted justifications were not impartial interpretations of legal provisions but rather a judicial cover for criminality. “At minimum, they should have been disciplined for malpractice, if not prosecuted as accomplices,” wrote Roth.

He added:

Prosecution should also include the senior Bush officials who authorized torture and oversaw its use. To President Obama’s credit, he stopped the use of “enhanced interrogation techniques” from the moment he took office six years ago. But he has steadfastly refused to permit a broad investigation of the use of torture after 9/11, allowing only a narrow investigation into unauthorized interrogation techniques that resulted in no prosecutions.

Unless the Senate report’s revelations lead to prosecution of officials, torture will remain a “policy option” for future presidents, noted HRW.

The group described in detail U.S. hypocrisy on the issue of torture, providing an annotated table consisting of past statements of the U.S. government condemning other governments for the very same tactics that it has defended when employed by the CIA and U.S. military.

Noting that for years the U.S. denied that these techniques constituted torture, HRW noted plainly that many clearly do. “International bodies and U.S. courts have repeatedly found that ‘waterboarding’ and other forms of mock execution by asphyxiation constitute torture and are war crimes,” the group pointed out.

Further,

Other authorized techniques, including stress positions, hooding during questioning, deprivation of light and auditory stimuli, and use of detainees’ individual phobias (such as fear of dogs) to induce stress, violate the protections afforded all persons in custody – whether combatants or civilians – under the laws of armed conflict and international human rights law, and can amount to torture or “cruel, inhuman, or degrading treatment.” Accordingly, the United Nations Committee against Torture and the UN Special Rapporteur on Torture have clearly stated that these techniques are torture.

The European Union added its two cents on Wednesday saying that the Senate report “raises important questions about the violation of human rights by the U.S. authorities,” according to a statement by European Commission spokeswoman Catherine Ray. Despite the lack of accountability for these violations, Ray essentially praised President Barack Obama for ending the program in 2009 when he took office and for allowing the publication of the Senate’s findings.

“This report is a positive step in confronting publicly and critically the Central Intelligence Agency’s detention and interrogation program,” she said.

EU member states “recognize President Obama’s commitment to use his authority to ensure that these methods are never used again,” she added.

Not to be outdone in this exercise in diplomatic fellatio, the United Kingdom seemed to go out of its way to downplay the seriousness of the crimes described by the Senate report. UK Prime Minister David Cameron said that “after 9/11 there were things that happened that were wrong,” when he was asked about the report.

“Those of us who want to see a safer, more secure world, who want to see this extremism defeated, we won’t succeed if we lose our moral authority, if we lose the things that make our systems work and our countries successful,” Cameron said.

The German government welcomed the report and said that “torture can never be justified.” However, Obama has clearly spoken out against torture and in favor of human rights, according to the statement.

Other governments were less kind.

Asraf Ghani, president of Afghanistan – the site of some of the most deplorable acts of torture and maltreatment detailed in the report – called the report “shocking” and said that the CIA’s brutal interrogation program “violated all accepted norms of human rights in the world.”

President Ghani, who assumed his position in September, added, “There is no justification for such acts and human torturing in the world.”

Frequent targets of U.S. criticism such as China and North Korea also weighed in, using the opportunity to point out that the U.S. is being hypocritical for highlighting their human rights abuses while whitewashing its own.

“As Human Rights Day approaches, high-profile cases of violations within American borders and by its agencies abroad are being scrutinised, especially as it pertains to be a defender of civil liberties globally,” the Chinese state-owned Xinhua News Agency said in a commentary on Tuesday.

North Korea condemned the CIA’s “inhuman torture” methods highlighted in the Senate report. Pyongyang said the revelations posed a major test to the credibility of the UN Security Council, which it accused of “shutting its eyes” to rights violations by one of its permanent members while criticizing North Korea’s rights record.

Newspapers around the world have also raised harsh objections to the U.S. torture program and its attendant impunity that has seemingly become official United States policy. As the International Business Times reported on Wednesday,

Several international media outlets covered the extensive report of the five-year Senate Intelligence Committee investigation into the harsh techniques used to interrogate terrorists after the Sept. 11, 2001 attacks.

In Europe, columnists were angry with the U.S. for broadcasting an image of fairness and freedom while conducting torture behind the scenes. Bild, Germany’s leading tabloid, wrote that the torture report’s verdict that the CIA torture techniques ultimately didn’t work “cannot be beat for uniqueness.” Austria’s Kleine Zeitung ran a front-page photo with a superimposed headline reading “America’s Shame.”

The IBT article continued:

In the United Kingdom, a headline in the Daily Mail summed up its reaction to the report: “A truly black day for the ‘civilized’ West.” The opinion piece said the Senate committee’s release, “demolished the boast of the world’s most powerful democracy that it inhabits a higher moral universe than the terrorists it condemns as barbarians.” …

Spain’s prominent newspaper El País led its homepage with the CIA torture report Wednesday, with multiple stories chronicling what role the Bush administration played in allowing the enhanced interrogation tactics, as well as criticism of the report from former spies. Its main headline read in Spanish: “US uncovers the dirty war of the Bush era.”…

Colombia’s El Tiempo published multiple stories about the CIA torture report, its top headline blasting “The ‘unholy’ methods of the CIA after September 11.” …

Ecuador’s El Universo focused on how the CIA misled Congress. Its top headline read, “The CIA acted ‘more brutal’ than what it told Congress, says report.” Cuba’s official Granma newspaper followed a similar path. It’s website carried the CIA story toward the bottom of its homepage with the headline: “CIA interrogations, more brutal than thought.” …

The privately owned Egyptian daily Al Masry Al Youm featured a report detailing the methods used by the CIA to torture prisoners, highlighting the use of diapers and anal feeding. The Israeli daily Haaretz focused its coverage on the CIA’s citation of an Israeli Supreme Court ruling to justify its legal case for torture.

Seemingly oblivious to the worldwide condemnations of the CIA’s torture program and the seriousness of the international calls for accountability and justice, President Obama used the publication of the Senate report as an opportunity to tout the virtues of the United States, and actually praised the Central Intelligence Agency for its professionalism in carrying out its responsibilities.

In a stomach-turning, hypocrisy-laden statement focused on the well-worn but highly discredited notion of “American Exceptionalism,” Obama said:

Throughout our history, the United States of America has done more than any other nation to stand up for freedom, democracy, and the inherent dignity and human rights of people around the world. As Americans, we owe a profound debt of gratitude to our fellow citizens who serve to keep us safe, among them the dedicated men and women of our intelligence community, including the Central Intelligence Agency. Since the horrific attacks of 9/11, these public servants have worked tirelessly to devastate core al Qaeda, deliver justice to Osama bin Laden, disrupt terrorist operations and thwart terrorist attacks. Solemn rows of stars on the Memorial Wall at the CIA honor those who have given their lives to protect ours. Our intelligence professionals are patriots, and we are safer because of their heroic service and sacrifices.

In the years after 9/11, with legitimate fears of further attacks and with the responsibility to prevent more catastrophic loss of life, the previous administration faced agonizing choices about how to pursue al Qaeda and prevent additional terrorist attacks against our country. As I have said before, our nation did many things right in those difficult years. At the same time, some of the actions that were taken were contrary to our values. That is why I unequivocally banned torture when I took office, because one of our most effective tools in fighting terrorism and keeping Americans safe is staying true to our ideals at home and abroad.

He went on to trumpet his own commitment to human rights in rather misleading and self-serving statements about how he supposedly ended torture and pushed for the publication of the Senate report:

I will continue to use my authority as President to make sure we never resort to those methods again.

As Commander in Chief, I have no greater responsibility than the safety and security of the American people. We will therefore continue to be relentless in our fight against al Qaeda, its affiliates and other violent extremists. We will rely on all elements of our national power, including the power and example of our founding ideals. That is why I have consistently supported the declassification of today’s report. No nation is perfect. But one of the strengths that makes America exceptional is our willingness to openly confront our past, face our imperfections, make changes and do better.

These comments are almost completely false. Obama has neither used his full “authority as President to make sure we never resort to those methods again,” nor “consistently supported the declassification” of the Senate report. In fact, as many Senate Democrats have complained, he has fought tooth and nail to prevent the publication of the report, and more substantially, by blocking prosecutions of the architects and practitioners of the CIA’s torture program, he has virtually ensured that torture will remain a “policy option” for future presidents, as Human Rights Watch has warned.

Rejecting these claims as the empty platitudes and self-serving obfuscations that they are, several grassroots organizations are holding a series of nationwide demonstrations over the next week to demand accountability from the CIA, as well as its sister organization and partner in crime, the NSA.

For a full list of events, click here.

International community and civil society call for human rights accountability in USA

On the heels of a scathing report issued by the United Nations detailing the U.S. government’s lack of compliance with its international obligations on torture, several grassroots campaigns are increasing pressure on the United States to bring its human rights practices more closely in line with international norms.

In issuing its “concluding observations” on the U.S. torture record following the periodic review of U.S. compliance last month, the United Nations Committee against Torture noted that the U.S.’s lack of a specific law at the federal level prohibiting torture is out of step with article 1 of the Convention against Torture (CAT).

The Committee also regretted that the U.S. maintains a restrictive interpretation of the provisions of the CAT, particularly regarding the concept of “prolonged mental harm” related to torture that is prohibited under the treaty. In its concluding observations, issued on November 28, “the Committee recalls that under international law, reservations that are contrary to the object and purpose of a treaty are impermissible.”

Further,

The Committee expresses its grave concern over the extraordinary rendition, secret detention and interrogation programme operated by the U.S. Central Intelligence Agency (CIA) between 2001 and 2008, which involved numerous human rights violations, including torture, ill-treatment and enforced disappearance of persons suspected of involvement in terrorism-related crimes. While noting the content and scope of Presidential E.O. 13491, the Committee regrets the scant information provided by the State party with regard to the now shuttered network of secret detention facilities, which formed part of the high-value detainee programme publicly referred to by President Bush on 6 September 2006.

The Committee further regretted “the lack of information provided on the practices of extraordinary rendition and enforced disappearance; and, on the extent of the CIA’s abusive interrogation techniques used on suspected terrorists, such as water-boarding.” In this regard, it noted particular interest in the long-stalled declassification process of the U.S. Senate Select Committee on Intelligence’s report on the CIA’s detention and interrogation program.

The panel called on the Obama administration to release the Senate report on CIA torture “in the most complete and comprehensible form possible.” This comes as Senate Democrats have accused the White House of trying to censor key portions.

Other issues addressed by the UN included the treatment of migrants, including children held in “prison-like detention facilities,” as well as the “widespread prevalence of sexual violence, including rape, in prisons, jails and other places of detention by staff and by other inmates.” The Committee also expressed concern over “the notable gaps in the protection of juveniles in the State party’s criminal justice system.”

Concern was also raised over the high number of preventable deaths of inmates that take place in local jails and prisons in the United States. As the Committee noted,

958 inmates died while in the custody of local jails during 2012, an 8 percent increase from the 889 deaths in 2010. During the same year State prison deaths remained stable with 3,351 reported deaths. The Committee is particularly concerned about reports of inmate deaths occurred as a result of extreme heat exposure while imprisoned in unbearably hot and poor ventilated prison facilities in Arizona, California, Florida, New York, Michigan and Texas (arts. 2, 11 and 16).

To talk more about the UN’s findings, Dr. Jens Modvig, a co-author of the report, appeared on Democracy Now this week. Among other issues, Modvig discussed the topic of police brutality in the USA and the significance of the parents of Michael Brown – the unarmed black youth gunned down by a white police officer in August – testifying to the Committee against Torture.

The Committee “takes an interest in the measures that United States has in place to control excessive use of force and police brutality,” Modvig said. “When we look at the statistics,” he pointed out, “we heard from the United States delegation that during the last five years, a little over 300 hundred cases have been criminally prosecuted of police officers.”

However,

We asked for the resource of these prosecutions but we have not received this information. So, where there’s still doubt as to whether the mechanisms to hold police officers accountable for excessive use of force, police brutality and even police shootings are probably in place. Another issue of importance is whether there is independent oversight bodies that can check up on the way that the power’s administered in the law enforcement. And also here we have some doubts whether police review boards are sufficiently independent. So, these are some of the concerns that committee has expressed vis-a-vis the United States Delegation.

In an effort to increase the level of accountability in the U.S. when it comes to widespread police violence, demonstrations have been taking place across the country, with protests picking up in recent days in response to the failure to indict a white cop in New York who choked to death an innocent black man by the name of Eric Garner last summer.

Civil rights leaders are also calling for a national march on Washington to demand that the federal government intervene in prosecutions of police officers facing criminal charges. The march will take place Saturday, Dec. 13, and the families of both Eric Garner and Michael Brown will attend, according to the Huffington Post.

“We’ll be in Washington, demanding redress,” Al Sharpton said, speaking at the headquarters of the National Action Network in Harlem. He was joined by representatives of the NAACP, the National Urban League and 14 other groups, all of whom are mobilizing for the march on Washington.

When it comes to the issue of CIA torture and the Obama administration’s official policy of impunity that shields human rights abusers from accountability, civil society groups from across the U.S. are organizing a week of grassroots action to highlight CIA crimes, as well as violations of privacy rights being carried out by the National Security Agency.

According to the call to action, “Vigils, protests, workshops, and other events will start nationwide on International Human Rights Day (December 10th) and conclude on Bill of Rights Day (December 15th).”

Events are currently planned in following cities:

— San Francisco, CA (12/15): http://on.fb.me/1yVv0mq
— Oakland, CA
— San Jose, CA (12/10): http://on.fb.me/1rW0mJs
— Berkeley, CA (12/6): http://on.fb.me/1BhbG5y
— Richmond, CA (12/8): http://on.fb.me/1yjiVDS
— Cleveland, OH
— Washington, DC (12/10): http://on.fb.me/1ysOOOg
— Chapel Hill, NC: (12/15) http://on.fb.me/1FQdujW
— Raleigh-Durham, NC:
. — 12/9: http://on.fb.me/1yjiWry
. — 12/10: http://on.fb.me/1FQcGeM
— Miami, FL

Other grassroots initiatives underway include a petition urging Sen. Mark Udall (D-CO) to submit the Senate Intelligence Committee’s torture report to the Congressional Record. Add your name to the petition here.

Also, the Witness Against Torture campaign will gather in Washington, DC on January 11, 2015, to mark the anniversary of the opening of the Guantanamo indefinite detention facility, also known as “Obama’s Forever Prison,” and the13 years of torture that have taken place there. More information here.

Pressure mounts against U.S. torture impunity

The longstanding Obama administration policy of providing officially sanctioned impunity to the architects and practitioners of the U.S. torture regime implemented by the previous administration is coming under increasing pressure, with the United Nations last week reviewing the United States’ compliance with the Convention against Torture and a growing number of voices calling for the U.S. to finally reckon with its troubling background on the use of cruel, degrading and inhuman treatment of prisoners.

Ahead of the U.S.’s review at the UN Committee against Torture, a group of law professors associated with the International Human Rights Clinic at Harvard Law School co-authored a shadow report to the UN, entitled “Failure to Prosecute Senior U.S. Government Officials for Torture Violates International Law.” The report documented how the Obama administration is in flagrant violation of the law by shielding from criminal liability the senior government officials responsible for the post-9/11 U.S. torture program.

The report takes the United States to task for why it has not prosecuted President George Bush (who admitted in his memoir to authorizing the waterboarding of Khalid Sheikh Mohammed); former Justice Department lawyer John Yoo (author of an opinion that offered legal justifications for torture); and former CIA contractor Dr. James Mitchell (reported to have personally waterboarded the prisoner known as Abu Zubaydah).

The report also urges the UN Committee to renew its calls for criminal investigations and prosecution of officials at the highest levels of the chain of command.

Also ahead of the UN review, Human Rights Watch and the ACLU wrote a letter to President Obama urging him to reverse the position articulated by the Bush administration that certain obligations under the Convention against Torture only applied within U.S. territory.

“Within days of taking office in 2009, you took important steps to reverse the previous administration’s harmful record and legacy on torture, including by issuing an executive order reinforcing the ban on torture,” reads the letter. “However, to ensure that such practices are not adopted by future administrations, it is critical that the United States also abandon the distorted interpretations of international law through which the George W. Bush administration sought to justify torture and ill-treatment and transfers to similar abuse.”

In the context of an ongoing dispute over the long-delayed release of a Senate report detailing the defunct U.S. torture regime, a group of Nobel Peace Prize laureates issued an open letter on Oct. 27 to the Obama administration, calling, inter alia, for the United States to fully disclose to the American people “the extent and use of torture and rendition by American soldiers, operatives, and contractors, as well as the authorization of torture and rendition by American officials.”

The laureates also called for the adoption of “firm policy and oversight restating and upholding international law relating to conflict, including the Geneva Convention and the UN Convention against Torture,” noting that Obama’s open admission that the U.S. engaged in torture is “a first step in the US coming to terms with a grim chapter in its history.”

The letter continued:

The subsequent release of the Senate Select Committee on Intelligence summary report will be an opportunity for the country and the world to see, in at least some detail, the extent to which their government and its representatives authorized, ordered and inflicted torture on their fellow human beings. …

When a nation’s leaders condone and even order torture, that nation has lost its way. One need only look to the regimes where torture became a systematic practice – from Imperial Japan and Nazi Germany to the French in Algeria, South Vietnam, the Khmer Rouge and others – to see the ultimate fate of a regime so divorced from their own humanity.

The practices of torture, rendition and imprisonment without due process by the United States have even greater ramifications. The United States, born of the concept of the inherent equality of all before the law, has been since its inception a hallmark that would be emulated by countries and entire regions of the world. For more than two centuries, it has been the enlightened ideals of America’s founders that changed civilization on Earth for the better, and made the US a giant among nations. …

In recent decades, by accepting the flagrant use of torture and other violations of international law in the name of combating terrorism, American leaders have eroded the very freedoms and rights that generations of their young gave their lives to defend. They have again set an example that will be followed by others; only now, it is one that will be used to justify the use of torture by regimes around the world, including against American soldiers in foreign lands. In losing their way, they have made us all vulnerable.

The letter noted that the world will be watching in the coming weeks as the release of the Senate findings on the U.S. torture program brings the country to a crossroads.

“It remains to be seen whether the United States will turn a blind eye to the effects of its actions on its own people and on the rest of the world, or if it will take the necessary steps to recover the standards on which the country was founded, and to once again adhere to the international conventions it helped to bring into being,” wrote the laureates, which included Archbishop Desmond Tutu and F.W. De Klerk  of South Africa, Mohammad ElBaradei of Egypt, and Jody Williams of the United States.

A week after this letter was issued, the U.S. midterm elections, which failed to meet a number of important international standards, resulted in the defeat of one of the Senate’s few champions for human rights, Sen. Mark Udall (D-CO). Following his defeat, a chorus of voices has urged Udall to use his congressional immunity – provided by the Constitution’s Speech and Debate clause – to read the Senate’s still-classified 6,000-page CIA torture report into the Congressional record. Udall is reportedly giving serious consideration to taking up this challenge.

Then, of course, there was the UN’s review last week of U.S. compliance (or lack thereof) with the Convention against Torture (CAT), a legally binding treaty to which the United States has subscribed. Every several years signatories to the CAT are required to submit reports to the UN’s Committee against Torture, followed by a question period by the Committee to which the government is able to respond to the following day. It was the U.S.’s turn on Nov. 12 and 13.

As the hearing got underway in Geneva, Agence France-Presse reported:

The delegation faced a barrage of questions from committee members on how the country was dealing with rectifying and providing redress for acknowledged abuses during the “war on terror”.

The US delegation was asked to explain why the US military prison at Guantanamo Bay in Cuba remains open, why many detainees remain there without charge and when Washington plans to shut it down.

The committee members also questioned the treatment of prisoners there, and lack of redress for victims of the widely publicised abuses by US troops at the Abu Ghraib prison in Iraq in the early 2000s.

Beyond the “war on terror” legacy, the committee members raised issues of abuses in US prisons, rape in prisons, the broad use of drawn-out solitary confinement, and long years on death row.

And they asked how Washington could justify its widespread detention of non-violent, non-criminal illegal immigrants, including minors.

And they slammed police brutality that appears to disproportionately affect minorities, such as 18-year-old Michael Brown, who was shot and killed by white police officer Darren Wilson in Ferguson, Missouri last August.

To its credit, the U.S. delegation at the UN issued a high-profile reversal of the previous administration, indicating publicly that, unlike under President George W. Bush, the government has decided that the ban against torture applies not only within the borders of the United States, but also to areas outside of its territorial boundaries, for example at Guantanamo Bay, Cuba – the site of years of wanton human rights abuses including arbitrary detention, torture and murder.

Mary E. McLeod, acting legal adviser for the State Department, stated, “We understand that where the text of the Convention provides that obligations apply to a State Party in ‘any territory under its jurisdiction,’ such obligations, including the obligations in Articles 2 and 16 to prevent torture and cruel, inhuman or degrading treatment or punishment, extend to certain areas beyond the sovereign territory of the State Party.”

“More specifically, to ‘all places that the State Party controls as a governmental authority,’ we have determined that the United States currently exercises such control at the US Naval Station at Guantanamo Bay, Cuba, and with respect to U.S. registered ships and aircraft.”

Human Rights Watch welcomed the U.S. statement, which improved on previous U.S. positions, but noted that the U.S. is still falling short of meeting its international obligations.

“While the Obama administration is distancing itself from discredited Bush-era interpretations of the Convention against Torture, it is still unwilling to accept its full obligations under the treaty,” said Laura Pitter, national security counsel at Human Rights Watch. “The U.S. should explicitly accept that the treaty applies anywhere the US exercises ‘effective control,’ including any detention centers overseas.”

During the question period of the UN review, the U.S. delegation was asked about its lack of prosecutions for torture, as well as its generally lackluster attempts to investigate these crimes. UN official Giorgi Tugushi from the former Soviet state of Georgia noted in particular that the Committee had received information that torture victims were not interviewed in the course of the investigation by Assistant U.S. Attorney John Durham into torture.

Attorney General Eric Holder had appointed Durham in 2009 to conduct a preliminary review into “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” Durham decided, however, that only the death of two individuals in US custody at overseas locations warranted the opening of “full criminal investigations,” which ultimately resulted in no prosecutions.

The Department of Justice declined to prosecute “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt,” according to Holder.

Tugushi expressed some concern over this result. “The investigation process looked into 101 cases and decided not to prosecute anyone,” Tugushi stated. “So, maybe, you can provide more information on this outcome.”

In response, the Justice Department’s David Bitkower explained:

Mr. Durham and his team reviewed the treatment of 101 such detainee cases. In so doing, he drew upon information provided by the CIA inspector general and report from the International Committee of the Red Cross regarding the treatment of high-value detainees formerly in CIA custody, the Department of Justice’s report on legal guidance related to enhanced interrogation techniques and other sources. After reviewing a substantial volume of information, Mr. Durham recommended the opening of two full criminal investigations and Attorney General Eric Holder accepted that recommendation.

After investigation the Department ultimately determined not to initiate prosecution of those cases. That decision was made based on the same principles that federal prosecutors apply in all determinations of whether to initiate a prosecution. Specifically, Mr. Durham’s review concluded that the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt…

Of course, no specific incidents that Durham may have examined were mentioned by Bitkower.

“Because the cases did not result in prosecutions, I cannot publicly describe with specificity the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed,” he declared.

In other words, torture impunity remains official U.S. policy.

Torture impunity becomes further entrenched in the USA

With recent reports indicating that the Obama administration may be maintaining the legal arguments of the previous administration as they pertain to the applicability of international law in counterterrorism operations overseas, as well as leaked news of the much-touted Senate CIA torture report avoiding the assignment of responsibility for these policies, it is growing increasingly obvious that impunity for torture has become undisputed official U.S. policy.

As The New York Times reported over the weekend,

When the Bush administration revealed in 2005 that it was secretly interpreting a treaty ban on “cruel, inhuman or degrading treatment” as not applying to C.I.A. and military prisons overseas, Barack Obama, then a newly elected Democratic senator from Illinois, joined in a bipartisan protest.

Mr. Obama supported legislation to make it clear that American officials were legally barred from using cruelty anywhere in the world. And in a Senate speech, he said enacting such a statute “acknowledges and confirms existing obligations” under the treaty, the United Nations Convention Against Torture.

But the Obama administration has never officially declared its position on the treaty, and now, President Obama’s legal team is debating whether to back away from his earlier view. It is considering reaffirming the Bush administration’s position that the treaty imposes no legal obligation on the United States to bar cruelty outside its borders, according to officials who discussed the deliberations on the condition of anonymity.

If Obama does decide to continue the policy of denying the Convention Against Torture’s jurisdiction in overseas operations, the message to the world will be received loud and clear that U.S. torturers are indeed above the law – that indeed no legal constraints exist on the U.S. global war on terror, neither its military operations that respect no nation’s sovereignty, its secret black site prisons nor its grotesque regime of enforced disappearances and torture.

While some might argue that it’s unfair to jump to conclusions and important to give Obama the benefit of the doubt until a final decision is made as to whether the treaty is legally binding on the United States regarding human rights obligations, in fact there is little reason to offer such latitude.

After all, the Obama administration has already declared that another landmark human rights accord – the International Covenant on Civil and Political Rights – has no bearing on U.S. overseas operations, drawing a stinging rebuke earlier this year from the UN Human Rights Committee, which monitors compliance with the ICCPR.

As stated in the HRC’s “concluding observations” issued on March 27, 2014:

The Committee regrets that the State party [the United States] continues to maintain the position that the Covenant does not apply with respect to individuals under its jurisdiction, but outside its territory, despite the interpretation to the contrary of article 2, paragraph 1, supported by the Committee’s established jurisprudence, the jurisprudence of the International Court of Justice and State practice. The Committee further notes that the State party has only limited avenues to ensure that state and local governments respect and implement the Covenant, and that its provisions have been declared to be non-self-executing at the time of ratification. Taken together, these elements considerably limit the legal reach and practical relevance of the Covenant (art. 2).

In response to this highly restrictive interpretation of the ICCPR which undermines human rights globally, the UN urged the United States to “interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of the object and purpose of the Covenant, and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances.”

The HRC also regretted the lack of accountability for past human rights violations:

The Committee is concerned at the limited number of investigations, prosecutions and convictions of members of the Armed Forces and other agents of the United States Government, including private contractors, for unlawful killings during its international operations, and the use of torture or other cruel, inhuman or degrading treatment or punishment of detainees in United States custody, including outside its territory, as part of the so-called “enhanced interrogation techniques”. While welcoming Presidential Executive Order 13491 of 22 January 2009 terminating the programme of secret detention and interrogation operated by the Central Intelligence Agency (CIA), the Committee notes with concern that all reported investigations into enforced disappearances, torture and other cruel, inhuman or degrading treatment committed in the context of the CIA secret rendition, interrogation and detention programmes were closed in 2012, resulting in only a meagre number of criminal charges being brought against low-level operatives. The Committee is concerned that many details of the CIA programmes remain secret, thereby creating barriers to accountability and redress for victims (arts. 2, 6, 7, 9, 10 and 14).

The State party should ensure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in positions of command, are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. The State party should also consider the full incorporation of the doctrine of “command responsibility” in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.

This lack of accountability is expected to continue, with the one comprehensive official attempt to ascertain the level of U.S. criminality in the war on terror – the Senate’s years-long investigation into CIA torture – studiously avoiding the assignment of culpability for these illegal policies.

As McClatchy reported on October 16,

A soon-to-be released Senate report on the CIA doesn’t assess the responsibility of former President George W. Bush or his top aides for any of the abuses of the agency’s detention and interrogation program, avoiding a full public accounting of one of the darkest chapters of the war on terror.

“This report is not about the White House. It’s not about the president. It’s not about criminal liability. It’s about the CIA’s actions or inactions,” said a person familiar with the document, who asked not to be further identified because the executive summary – the only part to that will be made public – still is in the final stages of declassification.

The Senate Intelligence Committee report also didn’t examine the responsibility of top Bush administration lawyers in crafting the legal framework that permitted the CIA to use simulated drowning called waterboarding and other interrogation methods widely described as torture, McClatchy has learned.

Despite the lack of accountability for those who actually crafted these illegal torture policies, the United States government had the gall to claim in its “periodic report” recently submitted to the UN Committee Against Torture that it is complying fully with the Convention Against Torture (CAT).

The government claimed [PDF], “U.S. law provides jurisdiction in a number of ways that could be relied on for criminal prosecution of torture and ill-treatment of detainees” and offered a few examples. The problem is, the Justice Department division the government cited as a bulwark against impunity for torture appears to have prosecuted zero public cases of torture against U.S. officials.

So, the government’s periodic report to the UN is basically one lie after another, and for these reasons, it is becoming painfully obvious that the only possibility for accountability may in fact be an international tribunal charged with prosecuting these crimes.

Because the U.S. has so consistently flouted its legally binding obligation under the CAT 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,” it may be up to the international community to help ensure that an officially sanctioned climate of impunity does not take hold in the United States on the issue of torture.

Under the terms of the CAT (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. As the Compliance Campaign has previously noted, it’s high time for this adjudication to take place. If it doesn’t, torture impunity will become even further entrenched, with ominous implications for the whole world.

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.

Senate vote on torture report spurs renewed calls for accountability

Last week’s vote by the Senate Select Committee on Intelligence to declassify part of a 6,300-page report on the CIA’s rendition and torture program is being hailed by some as an important step towards greater transparency, yet criticized by others as a rather meaningless gesture that will ultimately continue to provide CIA torturers with the impunity that they have long enjoyed.

Meg Satterthwaite, writing at Just Security, called the vote “a crucial milestone in the quest for transparency concerning U.S. extraordinary rendition and torture.” Blogger Marcy Wheeler, however, noted that the SSCI did not vote to declassify the whole report, but just certain sections including the executive summary and conclusions:

What we’re going to get will be the Executive Summary, Findings, and Additional and Dissenting Views. Because we’ll get just the Executive Summary, we won’t get much hard detail — aside from that which has been public for years — about the allegations that will appear in the Executive Summary, which will make it harder to rebut any claims CIA’s defenders make.

And this is assuming that even these sections are released in their entirety. After all, the SSCI did not actually declassify anything; it simply voted to send the report to the CIA for redactions and then to the president for declassification review and possible eventual public release. Until the declassification process is complete and that portion of the report is released (which could take months or even years), it will remain under wraps.

With these concerns in mind, a coalition of human rights groups sent a letter to the White House calling for President Obama’s staff to expeditiously lead the declassification of the report, rather than leaving it to the CIA. The groups welcomed CIA Director John Brennan’s pledge “not … to stand in the way” of the report’s release, but noted that the agency has an inherent conflict of interest that cannot be ignored.

“The recent allegations that the CIA searched computers made available to the SSCI, removed documents from them, triggered potential criminal proceedings against congressional staff and took other troubling steps make this inherent conflict of interest very vivid,” the letter says.

This conflict of interest is even more vivid considering that what is at stake is not simply a policy dispute, but legal issues as well. As media reports based on leaked sections of the report have indicated, CIA agents had illegally detained 26 of the 119 individuals in CIA custody, and the interrogation techniques used on detainees went beyond the methods that had been approved by the Bush Justice Department or CIA’s headquarters (guidelines that were likely overly permissive in the first place).

Also at issue are potential crimes committed including murder and obstruction of justice. As McClatchy reported on April 1, “In the case of the death of Gul Rahman, an Afghan who was shackled, doused with cold water and left in a cold cell partially clothed until he died of hypothermia, the CIA’s internal documents reviewed by the Senate confirm the agency’s culpability.”

A Department of Justice inquiry concluded in August 2012 that there was insufficient evidence to push for the prosecution of individuals in Rahman’s death. As Attorney General Eric Holder said at the time, “Based on the fully developed factual record … the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

Amnesty International criticized this decision in its annual report on the USA, saying that in 2012:

The absence of accountability for crimes under international law committed under the administration of President George W. Bush in relation to the CIA’s programme of secret detention was further entrenched.

On 30 August, the US Attorney General announced the closure of criminal investigations into the death of two individuals in US custody outside the USA. He stated that no one would face criminal charges in relation to the deaths, believed to have occurred in Afghanistan in 2002 and Iraq in 2003. This followed the announcement in June 2011 that a “preliminary review” conducted into interrogations in the CIA programme was at an end and that, apart from in relation to the two deaths, further investigation was not warranted.

But according to evidence uncovered by the SSCI regarding the death of Rahman, the agency may have tried to “minimize or sanitize that case” – in other words, to obstruct justice. “The documents initially make it seem like it was an accident,” a former official told McClatchy. “However, evidence pointed to what it actually was: willful negligence or even negligent homicide.”

So, despite the fact that possible criminal charges including homicide are at stake, potentially implicating individual interrogators as well as their superiors, the CIA is being offered the opportunity to redact any sections of the executive summary that it considers too damaging. The term “conflict of interest” is probably an understatement.

As the United Nations Human Rights Committee put it in its recent report on U.S. compliance with the International Covenant on Civil and Political Rights,

The State party should ensure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.

Or, as the Center for Constitutional Rights tweeted following the Senate vote last week, “White House must ensure that US officials responsible for torture described in #SSCI report are prosecuted & held accountable for crimes.”

Poland’s prison probe a reminder of U.S. lawlessness

Secret CIA prison site in northeast Poland

An official probe into the CIA’s use of a secret prison in Poland offers a grim reminder of one of the global war on terror’s darkest chapters – the use of Eastern European allies to assist in illegal extraordinary renditions and torture of suspected terrorists.

But the fact that the probe is being carried out by Polish authorities, with no comparable investigation by the U.S. government, offers perhaps an even starker reminder that democratic accountability is in some ways stronger in the former Soviet Bloc than it is in the United States of America.

Despite some feeble attempts from Congress to ensure greater oversight of the CIA’s program of clandestine prisons, there have been no investigations of possible violations of the law. An amendment to require reports on clandestine detention facilities was attached to the 2006 supplemental military spending bill, but as this amendment only required that classified reports be submitted to relevant congressional committees, did little to raise general public awareness of the issue.

A 2009 Senate review of the program promised to “assess lessons learned” but assured the CIA that employees who participated in the program would not be held to account. CIA Director Leon Panetta vowed to block “an inquiry designed to punish those who acted in accord with guidance from the Department of Justice.”

First revealed in November 2005 by the Washington Post, the clandestine network of CIA prisons was acknowledged by President George W. Bush in September 2006. At the time, Bush claimed that torture was not part of the program.

Investigations by the Council of Europe and the European Parliament, however, revealed that torture had been used extensively in the prisons.

While deploring “the concepts of state secrecy or national security” invoked by the United States to obstruct the investigation into “grave allegations of human rights violations,” the Council of Europe nevertheless ascertained that detainees in the prisons “were subjected to inhuman and degrading treatment, sometimes protracted.”

“Certain ‘enhanced’ interrogation methods used fulfil the definition of torture and inhuman and degrading treatment in Article 3 of the European Convention on Human Rights and the United Nations Convention against Torture,” said the report.

A subsequent investigation by the European Parliament further confirmed the use of torture in the secret prisons. Following its investigation, the EP adopted a strongly worded resolution condemning the U.S. policies and the European governments that participated in the program.

“[E]xtraordinary rendition and secret detention involve numerous violations of human rights in particular violations of the right to liberty and security, the freedom from torture and cruel, inhuman or degrading treatment, the right to an effective remedy, and, in extreme cases, the right to life; whereas, in some cases, where rendition leads to secret detention, it constitutes enforced disappearance,” the resolution stated.

The EP reminded its member states that “the prohibition of torture is a peremptory norm of international law (jus cogens) from which no derogation is possible,” and criticized “European countries [that] may have received, knowingly or unknowingly, information obtained under torture.”

In Poland, the notion that the former Communist country would tolerate a secret CIA prison in which torture was being used was for years derided by the country’s politicians, journalists and the public as a crackpot conspiracy theory. Polish officials consistently denied the existence of any such prison.

But a string of recent revelations and political statements by Polish leaders appear to acknowledge for the first time that the United States did indeed run a secret interrogation facility for terror suspects in 2002 and 2003 in a remote region of the country.

As the AP reports, the debate within Poland is marked by a streak of disappointment that Washington had led the young democracy led astray both ethically and legally, and then abandoned the Polish government to deal with the fallout.

Polish Prime Minister Donald Tusk said March 29 that Poland has been the “political victim” of leaks from U.S. officials that brought to light aspects of the secret rendition program. He said that an ongoing investigation into the case demonstrates Poland’s democratic credentials and that Poland will not be used in the future for such clandestine enterprises.

“Poland will no longer be a country where politicians — even if they are working arm-in-arm with the world’s greatest superpower — could make some deal somewhere under the table and then it would never see daylight,” said Tusk, who took office four years after the prison was shuttered.

The Polish frustration with the United States follows a long-established feeling of disillusionment that first emerged in 2004 during the U.S.-led occupation of Iraq and the height of the Iraqi insurgency. As David Ost reported in The Nation magazine on Sept. 16, 2004,

George W. Bush has managed to do what forty-five years of Communist rule could not: puncture the image of essential American goodness that has always been the United States’ key selling point. Polish journalists now ask questions like, “How can we explain America’s transformation from a country that introduced international law to one that intervenes militarily wherever it likes?” Or, more plaintively: “Does it really pay to be America’s friend?” It is an astonishing turnabout: In more than twenty-five years of traveling to Poland I have never heard these kinds of criticisms.

Poland committed 2,400 troops to the U.S.-led occupation of Iraq, but Polish supporters of the war, such as Marek Beylin, chief of the editorial section of Gazeta Wyborcza, began wondering whether they were duped into cooperating with the United States.

“It seems we were naïve,” Beylin said in 2004. “It turns out they had no idea what to do with the Shiites, the Kurds, the resistance, the infrastructure. A superpower should be able to do this! That it can’t do it – this changes all our calculations.”

It appears now that Poland is following through on the recalculations it began making eight years ago,  and choosing the rule of law over its alliance with the world’s lawless superpower.

“Poland is a democracy where national and international law must be observed,” Tusk said on March 29. “This issue must be explained. Let there be no doubt about it either in Poland or on the other side of the ocean.”

Tusk also pledged that Polish official involvement in activities by the CIA would be thoroughly scrutinized and prosecuted. He indirectly confirmed that his country’s former spy chief, Zbigniew Siemiątkowski, is facing criminal charges in connection with a probe by state prosecutors into the Polish role in CIA’s secret prison.

Poland’s prime minister at the time of the prison’s operation, Leszek Miller, has denied any knowledge of the CIA program in Poland.

Although many sordid details of the program have been public for years, the U.S. continues to not only fail to investigate those responsible, but also stonewall investigations by others, including Poland. The future of the investigation of Siemiątkowski is in some doubt, with the U.S. authorities refusing to cooperate with the investigation, reports the Polish newspaper Gazeta Wyborcza.

The refusal to cooperate with the investigation follows a well-established pattern by the administration of Barack Obama, who upon taking office in 2009 promised that he would “look forward as opposed to looking backwards” regarding crimes committed by the previous administration.

President-elect Obama said in Jan. 2009 that there should be prosecutions if “somebody has blatantly broken the law” but that CIA employees who participated in questionable policies of “extraordinary rendition” and “enhanced interrogation” should not be overly concerned.

“Part of my job,” he said, “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 spend their all their time looking over their shoulders.”

In the three-plus years since then, it has become abundantly clear that those who may have engaged in unlawful interrogation or extrajudicial detention during the Bush years have nothing to worry about. In fact, the only CIA employees who have been prosecuted under the Obama administration are those who have attempted to blow the whistle on abuses at the agency.

The most recent example is that of John C. Kiriakou, a CIA agent made famous by his public opposition to waterboarding, who was indicted last week by a grand jury for leaking government secrets to reporters. Kiriakou is accused of giving journalists the name of another CIA operative and his role in the capture of al-Qaeda suspect Abu Zubaydah shortly after 9/11.

Abu Zubaydah is said to have been tortured in the CIA’s secret prison in Poland and is one of two individuals granted “victim status” by prosecutors in Warsaw. This will allow their lawyers to review evidence and question witnesses as part of the prosecutors’ investigation.

The indictment of Kiriakou is part of an aggressive Justice Department crackdown on leakers and is one of a half-dozen such cases opened during the Obama administration. Coupled with the administration’s refusal to cooperate with the Polish authorities in its investigation of secret CIA prisons, it appears to be part of a concerted effort to prevent any more details about this program from seeing the light of day.

Still, human rights activists and lawyers are coming to view Poland and its courts as one of the best chances to uncover the truth about U.S. rendition and torture in Eastern Europe.

“In Poland, the democratic system has turned out to be much more mature than in other countries,” said Adam Bodnar of the Polish Helsinki Foundation for Human Rights. “There’s a group of people — judges, prosecutors, journalists, some politicians — who take the constitution seriously.”

Considering the lack of any such seriousness on the other side of the Atlantic, the Polish investigation may also be Americans’ best hope for learning the truth about the CIA’s secret prisons, as well as its broader rendition and torture program.