New evidence might bring new legal cases against American officials involved in the Central Intelligence Agency’s “enhanced interrogation” program after the release of previously classified information on Tuesday. The Senate Intelligence Committee’s 525-page report report which details the “brutal” interrogations of 39 detainees has spurred calls for prosecution from the U.N., as well as human rights’ and civil liberties organizations.
“We made mistakes,” C.I.A. director John Brennan said in a statement, but he maintained that his agency’s policies were legal.
“Detainees were subjected to enhanced interrogation techniques (EITs), which the Department of Justice determined at the time to be lawful and which were duly authorized by the Bush Administration,” he said. The techniques were prohibited by President Obama through an executive order when he took office in January 2009.
John McLaughlin, who headed the CIA under President George W. Bush told NPR, “We went to the Department of Justice at least four times to make sure that what we were doing was not torture in a legal sense and that it was consistent with the U.S. Constitution.”
“And, on top of that John Durham, one of the toughest professional prosecutors in the Department of Justice, was asked by the Obama Administration to look at this program in detail, which he did,” McLaughlin said. “And he came back and said, ‘No prosecutable offenses.’”
But Ben Emmerson, the United Nations’ special rapporteur on counter terrorism and human rights doesn’t think official authorization from agencies within the U.S. frees those who carried out torture from facing justice.
“The fact that the policies revealed in this report were authorized at a high level within the U.S. government provides no excuse whatsoever,” Emmerson said in a statement. “Indeed, it reinforces the need for criminal accountability.”
He added that as a signatory to the U.N. Convention Against Torture, the U.S. is legally obligated to prosecute acts of torture and enforced disappearance if there is sufficient evidence to to bring about a case.
International law does not permit individuals who carried out torture to dismiss liability because they were acting on orders. And, Emmerson said, “States are not free to maintain or permit impunity for these grave crimes.”
However, the Justice Department will not bring criminal charges against those involved in executing the CIA’s so-called “enhanced interrogation” techniques.
In a statement, the agency noted that it reviewed allegations of torture and found two cases worthy of criminal investigations, but “ultimately declined those cases for prosecution, because the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt.”
Advocacy groups have raised concerns about the Justice Department’s investigations, especially because officials refused to say whether or not they interviewed any victims of torture.
“We know absolutely that key witnesses [who were subjected to torture] that went beyond what was authorized in C.I.A custody, were not interviewed,” Laura Pitter of Human Rights Watch wrote in an email to the New York Times.
Now that the Senate has made public alarming details about the extensive C.I.A.’s use of torture which ranged from “rectal rehydration,” the use of insects, and shackling a naked man to a cold cell wall, more cases can be brought against those involved.
“Other countries have all the information they need should they wish to exercise universal jurisdiction and prosecute these officials should they appear in their borders,” Andrea Prasow of Human Rights Watch said.
Universal jurisdiction is a legal doctrine that allows the courts of any country to try certain crimes against humanity including torture regardless of where those crimes took place or who is alleged to have committed them. It stems from a 1998 case brought by a Spanish court against the Chilean dictator Augusto Pinochet for the murder and torture of opposition figures.
Some organizations that have already invoked this principle and are planning to use this new release of information to build their case against American officials.
“After reviewing this report, we will give consideration to reopening petitions or filing new petitions in European courts under the principles of universal jurisdiction,” Baher Azmy of the Center for Constitutional Rights told BloombergView. His organization represents several former Guantanamo Bay detainees has brought cases against Bush administration officials in Germany, Canada, and France but has failed to persuade courts to indict. It also has a case pending in Spain, but Azmy said the report’s revelations could be a game-changer.
“This suggests the possibility of reopening those cases,” Azmy said. “We are filing additional petitions against the C.I.A and high level officials.”
Raha Wala of Human Rights First also told BloombergView, that civil cases are likely to be brought as well.
“I would fully expect that individuals who were subjected to these programs would take up civil actions in court to get some sort of remedy for these human rights violations,” he said.
In a fact sheet, the ACLU notes that there are a number of U.S. laws that could be invoked to hold those accused of torture responsible including the federal torture statute that criminalizes the infliction of severe physical or mental suffering with intent outside of the U.S.
The group points out that while some of the alleged crimes occurred more than a decade ago, “There is no statute of limitations under the torture statute when the abuse risked or resulted in serious physical injury or death.”