A year ago yesterday, the Senate Select Committee on Intelligence released a redacted version of the executive summary of its exhaustive report on the CIA’s detention and interrogation program. The Senate Report confirmed that the CIA detained at least 119 named individuals and used both approved and unapproved techniques in interrogating these detainees, including sexual and gender-based violence. Months after President Obama conceded that “we tortured some folks,” the Senate Report documented how the CIA reverse-engineered methods of torture inflicted on American soldiers in wartime.
Techniques used by the CIA amounted to either torture or cruel, inhuman, and degrading treatment, both of which are prohibited under international legal obligations that are binding on the United States. All men subject to the CIA’s Torture Program — which entailed secret detention in extreme isolation coupled with concealment of their fate and whereabouts, and removal from the protection of the law — were also victims of enforced disappearance. Indeed, the entire system of secret detention and interrogation, which Physicians for Human Rights has called a “regime of psychological torture,” was aimed at inducing disorientation and helplessness. Despite this, not one of those responsible for designing, approving, or running the program has been held criminally accountable. Nor have any of the survivors of the CIA’s Torture Program received any apology or reparation from the US government.
While the Senate Report constitutes an important step, the United States is required under international law to conduct a criminal investigation into the approval and conduct of the CIA’s Torture Program and to hold those responsible to account. Former CIA detainees, like all victims of torture, are entitled under international law to reparation. While it may seem politically impossible for the United States to live up to these obligations, at key moments in US history the government has acknowledged the human rights abuses it committed, apologized for abuses, or extended reparations to victims. The onus is now on the American public to ensure the government lives up to its legal and moral obligations.
When the Senate Report was published, President Obama promised “to use my authority as President to make sure we never resort to those methods again.” International law makes clear that states that have used torture must effectively investigate and prosecute those acts, in part because accountability is central to preventing future abuses. Yet when it comes to the CIA’s Torture Program, such accountability remains elusive.
Consider the US Justice Department’s investigation into the issue: Following a preliminary review — which failed to interview former CIA detainees and extended protection from prosecution to anyone who “act[ed] in good faith and within the scope of legal guidance” — the resulting criminal investigation was limited to just two detainees. Ultimately the Justice Department decided not to bring any criminal charges because “the admissible evidence would not be sufficient to obtain and sustain a conviction.” This was notwithstanding the deaths of both detainees. Moreover, this investigation was closed before the Senate Report was published. As Amnesty International has argued, new evidence in the Report should compel the Justice Department to open a new investigation; a new Human Rights Watch report provides a roadmap to accountability.
The United States has proudly reported to the UN on its array of federal and state statutes and mechanisms equipped to investigate and prosecute torturers. The US government plainly has the law and mechanisms needed to fulfill its obligations under human rights law. But when it comes to its own Torture Program, it has failed to do so. Worse, the US government has blocked victims’ efforts to obtain justice through the courts. It has repeatedly invoked — and courts have upheld — the state secrets doctrine to block civil suits brought by victims of the CIA’s Torture Program. Whether this trend will continue is an active question: A new case brought by the ACLU against the architects of the CIA’s Torture Program is pending. As the International Human Rights Clinic at Harvard has shown, the United States has blocked or failed to cooperate with numerous foreign investigations into the CIA’s Torture Program. The missing element is political will.
The United States must provide effective remedies to victims of the CIA’s Torture Program. Under human rights law, these remedies must be accessible to the victim and should provide fair and adequate compensation. The United States has taken the position that the issue of remedies for harms committed against “individuals detained as enemy belligerents” is governed by the laws of armed conflict and that human rights obligations concerning remedies do not apply in such situations. Such reasoning is an outmoded continuation of the kind of legal reasoning used to justify the CIA’s Torture Program in the first place and it should be rejected.
The obligation to ensure effective remedies is non-derogable. Despite this, no reparations have been made to victims by the United States for torture committed as part of the CIA’s Torture Program. This stands in stark contrast to the practice of US allies such as Canada, Macedonia, Poland, the United Kingdom, and Sweden, which have all compensated — or been ordered to compensate — victims harmed by their collusion in the CIA’s Torture Program. In the United States, no apology has been made, no remedies have been extended, and no one has been held accountable.
In the words of the commission investigating the US government’s unjustified internment of more than 82,250 persons of Japanese ancestry during World War II: “Nations that forget or ignore injustices are more likely to repeat them.”