The release Tuesday of an executive summary of the findings of a Senate Intelligence Committee probe into the CIA's rendition, detention and interrogation program has sparked a frenzy of accusations and counteraccusations by political and security officials. But most of the conversation in Washington, D.C., and in the national media has focused on whether interrogation methods regarded as torture by international standards had been effective in protecting Americans from attacks. Less attention has been paid to the question of whether such methods were legal under U.S. and international law.
"The release of the report will end any debate about whether the U.S. tortured prisoners," said Wells Dixon, an attorney at the Center for Constitutional Rights, which represents victims of U.S. torture. "I expect you will see conduct so egregious, and beyond the pale, that no rational person could look at it and say it's not torture."
George W. Bush’s administration provided CIA operatives with legal authorization for "enhanced interrogation" techniques, including forced nudity, waterboarding, sleep deprivation and stress positions. But critics have asked whether such authorization contravened U.S. laws prohibiting torture.
Many aspects of the program ended even before Bush left office, and President Barack Obama swiftly banned these "enhanced interrogation techniques" immediately after taking office.
At the core of the Washington political furor is whether the CIA misrepresented the scope and effectiveness of the program to the Justice Department's Office of Legal Counsel, which provided the legal authorizations for the program based on information supplied by the CIA.
These justifications were outlined in what are now referred to as the torture memos, a series of memorandums issued starting in 2002 that were later withdrawn when it was revealed that the information supplied by the CIA had been misleading and inaccurate.
"These were not independent, impartial memos," Dixon said. "They were designed to be a legal shield, written to obtain predetermined results. There was no discussion, for example, of the fact that the U.S. prosecuted the Japanese after World War II for waterboarding."
Dixon said it was not clear whether poor legal analysis reflected the determination to achieve the desired cover for actions that many would deem torture, or simply reflected conclusions drawn by DOJ lawyers from misrepresentations by the CIA. "Ultimately, the fault lies with the legal counsel for not doing any investigation and blindly accepting what they were told," Dixon said.
Other experts question whether more accurate information supplied by the CIA would have given senior White House officials pause.
"It's well established that during the Bush administration, senior White House officials were pressing very hard alongside the CIA to approve these techniques, and they in fact repeatedly conspired with the CIA to create misleading documents that were falsely playing up the effectiveness and necessity of the program," said Laura Pitter, senior national security counsel at Human Rights Watch.
The Senate committee's findings are expected to reignite demands for the criminal prosecution of officials who authorized and implemented the interrogation techniques. Al Jazeera talked to prominent legal analysts for a breakdown of the major domestic and international laws that could be invoked in response.
US law and torture
Despite Obama's repeated assurances that CIA officials who applied harsh interrogation methods under the Bush administration will not be prosecuted, experts say U.S. law does not necessarily foreclose such claims.
“We don’t have to go through international courts to obtain justice. Federal courts have U.S. jurisdiction over its own citizens, even if the conduct in question occurred abroad," said Elizabeth Holtzman, a former congresswoman and a co-author of “Cheating Justice: How Bush and Cheney Attacked the Rule of Law, Plotted to Avoid Prosecution — and What We Can Do about It.”
The same criminal laws used to prosecute individuals on U.S. soil for committing offenses such as murder, assault, and battery can be applied to torture cases that occurred overseas, say experts.
Such criminal offenses are outlined in Title 18 of the U.S. Code, the criminal code for federal crimes.
Defenders of the program and the memos that authorized them argue that U.S. criminal laws do not apply outside of U.S. territory — and the CIA interrogations in question occurred at secret black sites overseas. But the 4th Circuit Court in 2006 rejected the extraterritoriality argument in United States v. Pessaro, the first and only case in which a person connected with the CIA was convicted in connection to the "war on terrorism" that began after the Sept. 11 attacks.
In that case, CIA contractor David Pessaro was charged with assault in connection with the 2003 death of Abdul Wali while in the custody of U.S. officials in Afghanistan. In his defense, Pessaro relied on some of the authorizations in the torture memos, which included the argument that U.S. nationals can't be tried for conduct committed on foreign soil. But the court found that two laws expanded the territorial jurisdiction of U.S. federal courts, thus allowing for criminal prosecution of torture acts committed abroad.
The Military Extraterritorial Jurisdiction Act of 2000 (MEJA) asserts federal district court jurisdiction over civilians accompanying the armed forces overseas, including military contractors. MEJA’S broad territorial definition was made possible through a 2001 amendment to the Patriot Act.
Title 18 of the Patriot Act expanded the court's territorial jurisdiction to cover certain U.S. government installations located abroad. It also removed the statute of limitations on prosecution for any terrorist offense that led to the death or serious bodily injury of any person.
"Despite what Obama and Bush have said, the fact is that anyone who created a risk of death or serious bodily injury can face potential prosecution for the rest of their lives," Holtzman said.
This jurisdictional amendment was tested for the first time in Passaro. The 4th Circuit Court held that the premises of Asadabad, Afghanistan, where the offense occurred, constituted a U.S. military mission, rendering it within the criminal jurisdiction of a district court.
Passaro was found guilty of one count of felony assault with a dangerous weapon and three counts of misdemeanor assault. He was sentenced to serve eight years and four months in prison.
Federal anti-torture statute
The 2009 Federal anti-torture statute offers further pathways for legal action in response to harsh interrogation methods used by the CIA, in part because it permits claims for mental suffering inflicted on detainees.
The law was enacted as part of U.S. efforts to comply with the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). The CAT, ratified by the U.S. in 1994, mandates all parties to the treaty to "take effective legislative, administrative, judicial, or other measures to prevent acts of torture in any territory under its jurisdiction."
The statute can be applied to anyone, U.S. citizen or otherwise, who commits an act of torture outside the U.S, said Holtzman. And its definition of torture includes any act committed by a person acting under the color of law that is intended to inflict severe physical or mental pain upon another person within his custody.
This includes threats of imminent death and the intentional or threatened infliction of severe physical pain, according to Holtzman.
Additionally, the statute includes a conspiracy provision that makes it illegal for two or more persons to agree to commit acts of torture upon persons who were in the conspirators’ custody. Formal charges must be brought within eight years of the crime.
Experts say the conspiracy provision could be used to prosecute senior CIA and White House officials who may have intentionally misrepresented the interrogation program to obtain authorization for illegal torture methods.
Violation of the anti-torture statute is punishable by up to 20 years in prison, or execution, if the torture resulted in a victim's death. And as a result of Title 18 of the Patriot Act, there is no statute of limitations for any act that resulted in the death or serious bodily injury of any person.
The War Crimes Act of 1996
The War Crimes Act (WCA) is a federal statute that makes it a felony for any U.S. national to violate the Geneva Convention by engaging in murder, torture, or inhuman treatment, according to Holtzman.
The statute applies to those who carried out, authorized or who were aware of but failed to stop such acts, Holtzman said.
The Bush administration severely limited the scope of the law in 2006 by passing the Military Commissions Act (MCA) of 2006. The MCA reinterpreted provisions of Geneva and removed any reference to humiliating and degrading treatment.
"This removal of [any] reference to humiliating and degrading treatment will be perceived by experts and probably allies as 'rewriting' the Geneva Conventions," retired Army Lt. Col. Geoffrey S. Corn told The Washington Post in 2006.
Under a theory of law known as universal jurisdication, if a country is unwilling or unable to prosecute certain egregious offenses such as torture, war crimes, or genocide, then foreign jurisdictions may step in and prosecute those cases, according to Dixon of the Center for Constitutional Rights.
The principle of universal jurisdiction has been used to pursue war crimes allegations against senior Bush administration officials in a number of European countries, Dixon said.
In one of the more prominent cases invoking universal jurisdiction, Italy in 2009 convicted 26 CIA agents in absentia for their role in the 2003 abduction in Milan of Egyptian cleric Abu Omar. The case marked the first court decision ever to challenge the U.S. practice of "extraordinary rendition," under which suspects were abducted and sent to countries whose security services were less restrained in their use of techniques amounting to torture.
The Italian court's ruling means those 26 CIA operatives remain subject to arrest should they travel to Europe, Dixon said.
The principle of universal jurisdiction forms the basis of two international legal frameworks that provide for the prosecution of individuals accused of authorizing or committing acts of torture.
The Geneva Conventions, enacted shortly after World War II and ratified by nearly every country in the world, are a set of legal protections that safeguard civilians, soldiers, and prisoners during wartime.
The provision known as Common Article 3 prohibits torture, cruel, inhumane, and degrading treatment of prisoners of war (POWS). In addition, article 17 bars physical or mental torture that is inflicted to secure information or a confession from prisoners. Countries that violate the Geneva Conventions can be prosecuted for war crimes, according to Pitter.
United Nations Convention Against Torture
The U.N. Convention Against Torture is an international human rights treaty meant to prevent torture and cruel, inhuman degrading treatment. The treaty, which the U.S. helped to draft, requires countries to pass legislation to prevent torture within their borders, said Pitter. It also prohibits countries from transporting people to any country where there is reason to believe they will be tortured.
Six U.N. rights experts in late November sent Obama an open letter citing U.S. obligations under the treaty and urging the president to support “the fullest possible release” of the CIA torture report.
“We hope that as president of a nation that helped draft the Convention Against Torture – and as a Nobel Peace Prize laureate – you will recognize the historic nature of your decision and side with those in the United States and around the world who are struggling to reveal the truth and to bring an end to the use of torture,” the note said.
It continued: “Lasting security can only be achieved on the basis of truth and not secrecy."