No Impunity for Torturers [Updated]

Gregory Varnum CC-by-SA

[Editor’s Note: This post was originally published on December 15, 2014. Check out a substantial Update published on January 5, 2015 and appended below.]

In a post called “The Torture Report is Only the First Step,” Harold Koh observed on Friday that the Senate Intelligence Committee’s account of the CIA’s interrogation and detention program should be “more than enough to reopen investigations at the Justice Department to see whether prosecutions are warranted.” Ken Roth, who leads Human Rights Watch, made the same point in a piece published by the Washington Post over the weekend.

Other prominent jurists and human-rights advocates have been saying similar things, perhaps even more forcefully. Ben Emmerson, the United Nation’s special rapporteur on human rights and counter-terrorism, told the Guardian that senior U.S. officials should face charges for their role in authorizing torture. “There is … no excuse for shielding the perpetrators from justice any longer,” he said. The UN’s High Commissioner for Human Rights, Zeid Ra’ad Al-Hussein, issued a statement on Wednesday, which was the 30th anniversary of the adoption of the Convention Against Torture: “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.”

I agree.

The Justice Department should—must—reopen the investigation into the torture program, and I explained my views in a piece on MSNBC yesterday, where I argued:

If we fail to hold accountable the people who authorized torture, we also invite future administrations to resurrect the policies that the Obama administration has retired. At Thursday’s press conference, Brennan said the question of whether to use torture was a question of policy—not law—to be decided by policymakers. If we don’t enforce the laws against torture, Brennan will turn out to be right. [And] the notion that future administrations may resurrect the torture policies surely isn’t fantastical, when former officials—including Vice President Dick Cheney—continue to say that torture was effective and necessary, and when the current CIA director refuses even to acknowledge that the torture methods were in fact torture.

One point I emphasize in the piece is that the risk here isn’t just that a future administration will revive the torture policies, but that every future administration will believe—and believe justifiably—that laws “governing” in the national security context are nothing more than hortatory:

The danger isn’t simply that some future administration will revive the methods that the Senate report discredits. The larger danger is that our failure to hold accountable the people who authorized torture will send the message that any conduct, however unlawful and abhorrent, will be excused if it is carried out in the name of national security. If we fail to hold accountable the torturers, we risk entrenching the dangerous view that the intelligence agencies responsible for protecting the nation’s security are beyond the reach of the law.

The ACLU has released a short briefing paper that explains why the Justice Department should appoint a special prosecutor to investigate the torture policies, what tools would be available to that prosecutor, and what kinds of questions the prosecutor should ask. It’s here.

UPDATED:

Since I posted the piece above, many others have called on the Attorney General to launch a criminal investigation into the CIA’s abuse and torture of prisoners. I’ve collected some of the statements below.

The Inter-American Commission for Human Rights issued a statement that called on the United States to “carry out a full investigation . . . and prosecute and punish all persons within its jurisdiction responsible for acts of torture or other cruel, inhuman or degrading treatment or punishment.” The Commission observed that “the lack of punishment encourages practices that erode respect for integrity and human dignity.”

Juan Mendez, the United Nations Special Rapporteur on Torture, issued a statement commending the Senate Intelligence Committee for the thoroughness of its investigation and calling on the United States to conduct a criminal investigation. The Senate’s report, Mendez said, should be viewed as “a first step in the direction of fulfilling other US obligations under Convention against Torture, namely to combat impunity and ensure accountability by investigating and prosecuting those responsible.”

Erwin Chemerinsky, one of the nation’s leading constitutional scholars and the dean of UC Irvine School of Law, wrote in the Los Angeles Times:

The criminal law serves many functions: to express moral condemnation, to punish wrongdoers, to deter future wrongful conduct. Criminal prosecution of those who authorized and engaged in torture is essential to serve all of these functions.

(Chemerinsky’s op-ed, I should note, was published on Dec. 9, but I didn’t see it until a few days ago.)

The ACLU and Human Rights Watch also called on the Attorney General to conduct a new criminal investigation. In a letter to Eric Holder, the two organizations wrote:

Even though our organizations have dedicated tens of thousands of staff hours to researching, litigating, and advocating on concerns related to torture and other ill-treatment in the RDI program, the depravity of the tactics and immensity of the enterprise still astound us. There is no need to repeat the details in this letter to you, but we believe it is fair to say that many of these crimes would be horrific even if committed by an individual acting alone; but when done as part of a deliberate, coordinated government program, the crimes are more shocking and far more corrosive to U.S. democracy.

On the same day that the ACLU and Human Rights Watch issued their letter, the New York Times editorial board published an unflinching editorial calling on the Justice Department to “prosecute torturers and their bosses.”

Mr. Obama has said multiple times that “we need to look forward as opposed to looking backwards,” as though the two were incompatible. They are not. The nation cannot move forward in any meaningful way without coming to terms, legally and morally, with the abhorrent acts that were authorized, given a false patina of legality, and committed by American men and women from the highest levels of government on down.

If I’ve omitted other significant statements, please tweet them at me. And perhaps others will add their voices over the next several weeks. With former officials continuing to insist, despite overwhelming evidence to the contrary, that torture was lawful, effective, and necessary—“I’d do it again in a minute,” former Vice President Cheney said on Meet the Press—it seems to me that the argument for prosecutions grows stronger every day. 

About the Author(s)

Jameel Jaffer

Founding Director of the Knight First Amendment Institute at Columbia University, Former Deputy Legal Director at the American Civil Liberties Union and Director of the ACLU’s Center for Democracy, Author of The Drone Memos, Follow him on Twitter (@JameelJaffer).