To Deter US from Torturing Again, Those Involved Should Be Prosecuted
December 10, 2014
Kenneth Roth / Reuters & Joseph Margulies / Al Jazeera America & Mark Fallon / Politico
With the truth now told about this blatantly illegal policy, President Barack Obama has a chance to reverse his misguided refusal to prosecute the officials who authorized the torture, ending the impunity that sets a horrible precedent for future United States presidents and governments worldwide. Prosecution should include the senior Bush officials who authorized torture and oversaw its use.
To Deter US from Torturing Again,
Those Involved Should Be Prosecuted
Kenneth Roth / Reuters
(December 9, 2014) -- The publication of the long-awaited summary of the Senate Intelligence Committee report on the CIA's torture provides a useful moment to consider the lessons learned from this sorry chapter in American history and the steps that might be taken to avoid its recurrence.
With the truth now told about this blatantly illegal policy, President Barack Obama has a chance to reverse his misguided refusal to prosecute the officials who authorized the torture, ending the impunity that sets a horrible precedent for future United States presidents and governments worldwide.
There will undoubtedly be much debate about its finding that torture did not "work" -- that it produced little if any intelligence of value that was not or could not have been obtained by lawful means. It is disappointing that the nation must even have this discussion, given the strength of the legal and moral prohibitions of torture and other ill-treatment.
The Geneva Conventions, for example, forbid them absolutely, even in time of war. But when facing a serious security threat such as the September 11, 2001 attacks, it can be tempting to rationalize the illegal and immoral as necessary, so this finding is important.
The CIA vehemently contests this conclusion. It insists that torture -- or, to use its preferred euphemism, "enhanced interrogation techniques" -- did produce actionable intelligence, but of course it cannot tell us the details because they are classified. Yet it should give us pause that a majority of the Senate Intelligence Committee, as well as respected senators on both sides of the aisle, concluded that torture was ineffective, while the greatest proponents of its utility were the torturers themselves. The disputed pragmatic argument provides a weak rationale to breach so fundamental a prohibition as the ban on torture.
The CIA also objects to any after-the-fact suggestion that its enhanced interrogation techniques constituted torture. It argues that it was entitled to rely on legal opinions issued by the Justice Department's Office of Legal Counsel asserting that these techniques were not torture. But the Senate report shows those techniques to have been harsher and more brutal than the CIA revealed at the time, and it has previously been shown that the CIA had begun using many of those techniques even before the OLC opinion.
Moreover, anyone who reads the notorious "torture memos" readily sees them as strained, intellectually dishonest attempts to justify the unjustifiable. Their aim was to lay the foundation for precisely the legal defense to torture that the CIA now advances -- that it relied on legal advice from the authorized executive branch office, so it is unfair to second-guess it now. But any soldier in wartime knows it is wrong to follow a blatantly illegal order. The CIA's leadership should have done no less.
Still, 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 opinions were not reasonable interpretations of an ambiguous legal provision but a premeditated cover for criminality. At minimum, they should have been disciplined for malpractice, if not prosecuted as accomplices.
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.
The consequence is more than just a failure of justice. Obama's refusal to enforce this unequivocal prohibition means that torture effectively remains a policy option rather than a criminal offense. The message sent to future presidents facing a serious security threat is that the domestic and international prohibition of torture can be ignored without consequence.
If prosecutions won't be pursued, the least that can be done is to enact policies that would make torture's recurrence less likely. The CIA, with its tradition of secrecy and lack of public accountability, should be taken out of the business of detaining suspects, leaving such matters to the Justice Department (or the military for battlefield captures).
When security suspects are detained for interrogation, the International Committee of the Red Cross should be given immediate and regular access without exception; with its tradition of confidentiality, it would not jeopardize sensitive investigations, while its presence would discourage any temptation to torture.
When torture does occur, whistle-blower protection for people who report it should be improved. Victims should be allowed to sue for compensation in US courts, instead of rebuffed because their torture is classified as a state secret. Finally, all agencies should reaffirm the duty not to rely on legal opinions when they are so obviously intended to rationalize the criminal and state unequivocally that following clearly illegal orders is an invalid defense.
Kenneth Roth is executive director of Human Rights Watch. Before joining Human Rights Watch, he was a federal prosecutor in New York and Washington. Follow him on Twitter @KenRoth.
CIA Apologists Deceived the Nation.
Time to Put Them under Oath
Joseph Margulies / Al Jazeera America
(December 9, 2014) -- The torture report released today by the Senate Intelligence Committee is the most comprehensive and definitive condemnation yet of the Central Intelligence Agency's infamous detention and interrogation program. Though everyone is still studying the details, it appears the CIA and its contractors repeatedly and deliberately misrepresented the facts about the people they tortured, the intelligence they learned and the need for their methods.
It's unclear as yet what lessons we should draw from the report. I represent Zain Abidin Mohammed Husain Abu Zubaydah, whose interrogation figures prominently; my client is mentioned 1,001 times, and that does not include the redacted portions. My co-counsel and I have not nearly finished studying the document.
Yet three things are already apparent.
First, the program was vastly more brutal than Americans had been led to believe. Now we know what "rectal rehydration" means, and anyone who wants can study the revolting particulars in footnote 584: "While IV infusion is safe and effective," one officer wrote, explaining the attraction of this technique as a way to prevent a prisoner from dying of dehydration, the Agency was "impressed with the ancillary effectiveness of rectal infusion."
Abu Zubaydah's interrogation was so vicious, in fact, that an attending physician was cautioned before entering the room "that this is almost certainly not a place he's even been before in his medical career . . . It is visually and psychologically very uncomfortable."
Watching the torture "had a profound effect on all staff members present . . . Everyone seems strong for now but if the group has to continue . . . we cannot guarantee how much longer."
Some observers became "profoundly affected . . . some to the point of tears and choking up," and "two, perhaps three" officers indicated they were "likely to elect transfer" if the torture continued.
So far as I can tell, no such solicitousness was shown for Abu Zubaydah.
Second, the misrepresentations by the CIA were far more extensive than we thought.
Abu Zubaydah, for instance, was the poster child for the CIA torture program. He was the first prisoner held in a black site, the only prisoner subjected to every "enhanced" technique, and the person for whom the infamous torture memo was written. If there were ever a case the agency wanted to get right, it would be his.
Yet the world now knows what we have been saying for years. In the studied understatement of bureaucracies everywhere, the report concludes the CIA's representations about Abu Zubaydah were "inaccurate."
Indeed, all of the key allegations about Abu Zubaydah appear to have been discredited or withdrawn. For instance, the CIA sought legal clearance for his torture by insisting he was "well-versed" in counter-interrogation and that he "wrote Al-Qaeda's manual on resistance techniques." Yet "a review of CIA records found no information to support these claims."
Likewise, the CIA claimed Abu Zubaydah had been part of "every major terrorist operation carried out by Al-Qaeda." But this was also a lie: "CIA records," the report concludes, "do not support these claims."
Tucked away on page 410 is the CIA's additional frank admission "that Abu Zubaydah was not a member of Al-Qaeda." The citation is a CIA intelligence assessment dated Aug. 16, 2006. Yet countless officials, including former Bush, continued to describe Abu Zubaydah as Al-Qaeda long after this memo was written.
Such considerations naturally lead to the question of whether torture worked. In unequivocal terms, the report concludes it did not. In its first sentence, the committee finds "that the use of the CIA's enhanced interrogation techniques was not an effective means of obtaining accurate information or gaining detainee cooperation."
Putting that aside, I have always maintained that this is a false question we simply need not ask. Just as we would never ask whether chemical weapons work, the United States need never wonder whether torture works. For those who care, however, the answer is no.
Third, the report poses a challenge to our constitutional democracy. The question is simply whether the United States is afraid of the truth. I cannot believe we have fallen so far that the very prospect of open disclosure about a fully sanctioned program is a cause for fear and trembling.
In Tuesday's New York Times, Anthony Romero, the executive director of the ACLU, came out against prosecutions for anyone connected with the torture program. I have taken this position for years. Punishment is not nearly as important as truth, and I would gladly eschew the former in pursuit of the latter.
Meanwhile, former Vice President Dick Cheney and others involved in the program have complained bitterly that the report, which took years to prepare and was based on the examination of nearly 6 million pages of contemporaneously created material, including the original documents generated by the CIA, was in fact a partisan hatchet job.
Fine. Give them all immunity, put them under oath and start the tape.
Joseph Margulies is a visiting professor of law and government at Cornell University. He represents Guantanamo Bay detainee Zain Abidin Mohammed Husain Abu Zubaydah and was the counsel of record in Rasul v. Bush (2004), involving detentions at the Guantanamo Bay Naval Station, and in Geren v. Omar and Munaf v. Geren (2008), involving detentions at Camp Cropper in Iraq.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.
Dick Cheney Was Lying About Torture
The Senate report confirms it doesn't work. As those of us on the inside knew
Mark Fallon / Politico
(December 8, 2014) -- It's official: torture doesn't work. Waterboarding Khalid Sheikh Mohammed, the mastermind of 9/11, did not in fact “produce the intelligence that allowed us to get Osama bin Laden," as former Vice President Dick Cheney asserted in 2011. Those are among the central findings of the Senate Intelligence Committee report on CIA interrogation and detention after 9/11.
The report's executive summary is expected to be released Tuesday. After reviewing thousands of the CIA's own documents, the committee has concluded that torture was ineffective as an intelligence-gathering technique. Torture produced little information of value, and what little it did produce could've been gained through humane, legal methods that uphold American ideals.
I had long since come to that conclusion myself. As special agent in charge of the criminal investigation task force with investigators and intelligence personnel at Guantanamo Bay, Afghanistan, and Iraq, I was privy to the information provided by Khalid Sheik Mohammed. I was aware of no valuable information that came from waterboarding. And the Senate Intelligence Committee -- which had access to all CIA documents related to the “enhanced interrogation” program -- has concluded that abusive techniques didn't help the hunt for Bin Laden. Cheney's claim that the frequent waterboarding of Khalid Sheikh Mohammed “produced phenomenal results for us" is simply false.
The self-defeating stupidity of torture might come as news to Americans who've heard again and again from Cheney and other political leaders that torture “worked.” Professional interrogators, however, couldn't be less surprised. We know that legal, rapport-building interrogation techniques are the best way to obtain intelligence, and that torture tends to solicit unreliable information that sets back investigations.
Yes, torture makes people talk -- but what they say is often untrue. Seeking to stop the pain, people subjected to torture tend to say what they believe their interrogators want to hear.
The report is essential because it makes clear the legal, moral, and strategic costs of torture. President Obama and congressional leaders should use this opportunity to push for legislation that solidifies the ban on torture and cruel treatment. While current law prohibits these acts, US officials employed strained legal arguments to authorize abuse.
A law could take various forms: a codification of the president's 2009 executive order banning torture, for example, or an expansion of the 2005 Detainee Treatment Act so that key protections in it would apply to the CIA as well as the military. However it's designed, a new law would help the country stay true to its ideals during times of crisis and guard against a return to the “dark side.”
And dark it was. Terms like “waterboarding” and “enhanced interrogation” obscure the brutal, sometimes bloody, reality. It was about the delivery of pain. The US government authorized previously taboo techniques, which -- along with a take-the-gloves-off message coming from the top -- led to even greater horrors. You can draw a line from the “enhanced interrogation” to the barbarism of Abu Ghraib.
The ostensible purpose of torture was to save lives, but it has had the exact opposite effect. Torture was a PR bonanza for enemies of the United States. It enabled -- and, in fact, is still enabling -- al Qaeda and its allies to attract more fighters, more sympathizers, and more money.
Some have argued against releasing the report because they predict that it will spark anti-American anger around the world. Such a possibility, however, is an argument not against the kind of transparency and Congressional oversight inherent to a well-functioning democracy; it's an argument against torture. Indeed, by employing such an argument, people are implicitly acknowledging that torture saps the country's credibility and threatens its national security.
Over the coming days, you'll be hearing numerous torture defenders claim it kept Americans safe. Don't believe them. Many of us charged with the mission of getting information out of terrorists didn't resort to using torture. Like many Americans, we didn't want our government to use torture, and we hope it never does again.
Mark Fallon served as an interrogator for more than 30 years, including as a Naval Criminal Investigative Service special agent and within the Department of Homeland Security, as the assistant director for training of the Federal Law Enforcement Training Center
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