In the wake of a damning report into CIA torture released by a Senate committee, human rights groups are pressing the United States government for a fuller legal reckoning over unpalatable aspects of its recent past — something the Obama administration has to date resisted.
A day after details including sleep deprivation of up to seven days, brutal rectal force-feeding and threats of sexual violence were outlined in a 499-page summary, calls to prosecute those involved in authorizing and conducting torture have come from numerous parties.
“It is now time to take action,” Ben Emmerson, the U.N. Specific Rapporteur on counter terrorism and human rights, said in a statement. “The individuals responsible for the criminal conspiracy revealed in [the] report must be brought to justice, and must face criminal penalties commensurate with the gravity of their crimes.”
Kenneth Roth, the executive director of Human Rights Watch, called for prosecution that would “include the senior Bush officials who authorized torture and oversaw its use.” He said it was not enough for the U.S. to merely say it will not torture again.
Zeid Ra-ad Al-Hussein, the U.N.’s high commissioner for human rights, said Wednesday that the Convention Against Torture, to which the U.S. is a signatory, permits “no exceptional circumstances whatsoever” to justify torture. There is no impunity, he added, or statute of limitations for such conduct.
The calls put in focus the balancing act President Obama has trod on torture.
Upon entering office in 2009, President Obama signed Executive Order 13491, outlawing the practice. But he has weighed opposing past torture while rebuffing efforts that would seek further investigations or prosecutions of those who authorized or conducted it.
In a statement after the report’s release, Obama said it “reinforces my long-held view that these harsh methods were not only inconsistent with our values as nation, they did not serve our broader counterterrorism efforts or our national security interests.”
But he added: “Rather than another reason to refight old arguments, I hope that today’s report can help us leave these techniques where they belong — in the past. “
Sensing that Obama will seek no further investigations into George W. Bush-era torture, rights groups are looking at other potential avenues for what they call a necessary accounting of the past.
Anthony D. Romero, the executive director of the American Civil Liberties Union, suggested an end-around approach to reckoning with past torture: pardon those involved.
“Pardons would make clear that crimes were committed; that the individuals who authorized and committed torture were indeed criminals; and that future architects and perpetrators of torture should beware,” he wrote, while adding that prosecutions would be preferable route.
While the legal director at the Center for Constitutional Rights, Baher Azmy, said those who authorized or took part in torture must “be pursued internationally under the principles of universal jurisdiction” absent action in U.S. courts.
Alka Pradhan, counterterrorism counsel at Reprieve, a human rights organization, told Al Jazeera that the Obama administration’s legal obligations to investigate past use of torture is no different now than before the release of the Senate summary. But she said its details, many of which were revealed for the first time “places a great urgency on a full accounting.”
While Pradhan concedes that it’s unlikely Obama will change tack, she said the report could spur new legal challenges in new areas. For one, she said there could be scope for new lawsuits based on information that has been kept secret in thousands of documents under the U.S. government’s claim to a state secrets privilege. She said that it could be argued that the claims to privilege had been waived with yesterday’s release.
While favoring the declassification of the committee summary, the Obama administration prevented the committee from accessing thousands of documents under its claim to state secrets.
Another avenue for legal recourse could be lawsuits in Europe, where judiciaries have been “much more willing to conduct investigations” on post 9/11 use of U.S. torture, according to Pradhan. These inquiries may be spurred by the report’s revelations of CIA secret prisons in European Union member states, including Poland, said Pradhan. Two former Polish leaders — ex-President Aleksander Kwasinewski and ex-Prime Minister Leszek Miller — admitted Wednesday for the first time that they had authorized the CIA to run a secret prison, or “black site” in the country, but the Associated Press said they denied they had authorized torture.
Irrespective of the chances of them being held to account, those involved were at pains to discredit the report's findings.
Former Vice President Dick Cheney, in a pre-emptive attack on the committee's findings, said the report was "a bunch of hooey."
And in an op-ed Wednesday for the Wall Street Journal, former CIA directors George Tenet, Michael Hayden and Porter Goss, as well as three former deputy directors, wrote that the Senate summary was “a one-sided study marred by errors of fact and interpretation — essentially a poorly done and partisan attack on the agency that has done the most to protect America after the 9/11 attacks.”
Yet they did admit past failings.
“In no way would we claim that we did everything perfectly … there were undoubtedly things in our program that should not have happened.”
Whether less than perfect, or downright illegal, the chances of holding anyone accountable in a court of law remains an uphill battle.