Editor’s note: This piece is part of a four-part series marking the 19th anniversary of the terrorist attacks on Sept. 11, 2001. All of the posts can be found here.
In the Spring of 2013, then Vice-President Joe Biden had an important exchange with the late Senator John McCain regarding the CIA’s post-9/11 torture program and the Senate Intelligence Committee’s in-depth oversight study of that program (now known as the Torture Report):
McCain: “[D]oesn’t it seem to you … that we should expose those abuses of human rights committed by the United States and hold people responsible and make sure this kind of thing never happens again? I know that’s a simplistic statement…”
Biden: “No it’s not John, it’s a profound statement.”
McCain: “I’m offended, we are offended, it offends the fundamentals of what kind of country we are, and the practical side of it is don’t think it didn’t damage the United States’ image in the world in ways that we’ll be paying for for years to come.”
Biden responded with a reminder to the audience:
He’s a Republican. I’m a Democrat. He thinks I’m crazy and now you know why I love him…. Now this voluminous study has been done … and the internal debate that goes on in the Congress and in the White House is do we go back and do we expose it? Do we lay out who was responsible and how we got to where we are? … I think the only way you excise the demons is you acknowledge … exactly what happened straightforwardly.
Biden went on to remind McCain that they were “two of the most outspoken voices in saying there has to be a war crimes tribunal” for the conflicts in Bosnia and Kosovo. He added that Germany became a “great democracy” in large part because the Nuremberg trials forced the country to face what it had done. He pointed out that McCain and he were insisting on accountability in Serbia and the Balkans more broadly. And critically, he noted there were still a lot of people in the United States who think that, “in the name of our protection we have the right to do whatever is necessary to protect people even though as you pointed out and the studies point out [torture] doesn’t get the right information anyway.… I am of the school that it should be … exposed.”
The former Vice President was right, but a full reckoning for state-sanctioned American torture remains unfinished. During eight years in office, the Obama administration took important steps towards fulfilling the United States’ obligations under the U.N. Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT). Those included issuing Executive Order 13491 (formally ending the CIA’s torture program), signing the McCain-Feinstein anti-torture amendment into law, and acknowledging publicly – albeit generally – that the United States tortured detainees in its custody after 9/11.
But ultimately, the Obama administration fell short of what is necessary to ensure meaningful transparency, accountability, and redress for government-sanctioned torture, and to build durable safeguards against its return. Significantly, it did not even declassify and release the full Torture Report, let alone hold to account the architects of the torture program or the officials who sanctioned it. And it failed to provide redress for survivors and victims of U.S. torture. Completing this work is necessary to ensure that systemic torture never happens again.
For its part – and sadly, enabled at least in part by the failings of the Obama administration to seek accountability or provide redress – the Trump administration has taken no steps at all, and indeed has backtracked by, for example, promoting torture perpetrators and the brutal cruelty caused by family separations. An urgent course change is needed.
Whoever sits in the White House come January can move the country a long way towards that end by implementing the recommendations outlined below.
In December 2014, then-Senate intelligence committee chair Dianne Feinstein filed the full Torture Report with the Senate and sent copies to relevant executive branch agencies, making clear that she wanted as many appropriate officials as possible to read it. Instead, according to a government court filing six weeks later, “[n]either DOJ nor DOS … has even opened the package with the [compact disc] containing the full Report. And CIA and DoD have carefully limited access to and made only very limited use of the report.” The State Department went so far as to mark the envelope containing the report “Congressional Record – Do Not Open, Do Not Access.” The FBI did not even retrieve its copy.
With limited exception, the agencies subsequently returned their copies to the Senate intelligence committee in response to a demand by Senator Richard Burr, who became committee chairman in January 2015. There is no evidence that anyone in the executive branch – save for some at the CIA charged with preparing a response – made a meaningful attempt (if any) to read the Torture Report prior to its return, and to this day it remains out of reach of almost anybody who could make productive use of it.
The best way to ensure full and sustained transparency around the CIA torture program would be to fully declassify the program and reveal the full extent of the harms, lies, immorality, corruption, and crimes that it encompassed. The next administration can start by immediately beginning the declassification process for three sets of documents: the Torture Report; the CIA’s internal review of the torture program conducted at the direction of former Director Leon Panetta that allegedly conflicts with the CIA’s official response to the Torture Report (“Panetta Review”); and any Defense Department investigations, prosecutions, reviews or other assessments related to allegations of detainee abuse.
Pursuant to a court order, the Defense Department maintains a copy of the Torture Report that could be accessed for this purpose. So, too, does the National Archives and Records Administration, as required under the Presidential Records Act. Specifically, before leaving office, former President Obama designated this copy a presidential record and restricted access to it for 12 years, but he can waive that restriction at his discretion pursuant to the same statute under which the copy was preserved. The Panetta Review presumably remains within the CIA.
Once declassified, both the Torture Report and the Panetta Review should be released publicly, as should any relevant Defense Department documents.
The executive branch should also take two additional steps: first, redistribute the Torture Report and require government officials to read it and develop lessons learned. Each relevant agency, department, and/or office should have a team assigned responsibility for this task, which should then brief other personnel in that same agency, department, and/or office.
Second, the executive branch should ensure that counsel who represent people subjected to U.S. torture have the appropriate security clearances and make clear that they have a “need to know” all the information in the government’s possession concerning their clients – including but not limited to the Torture Report – so that they are able to review those records as necessary to effectively represent their clients.
Accountability and Redress
As a State party to CAT, the United States has a variety of anti-torture obligations. Among them are to investigate, prosecute and punish torture’s perpetrators; to exclude evidence obtained under torture from official proceedings; and to ensure that victims obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.
To date, the United States has failed to meet its obligations. In particular, notwithstanding both domestic and international law criminalizing torture, no U.S. government official or contractor has been charged and prosecuted in connection with the CIA torture program. What’s worse, some architects and operators of the program have seen their careers flourish, in government, the federal judiciary, the private sector, and academia.
By contrast, torture survivors and victims have secured precious little by way of redress; the overwhelming majority received none at all. Many continue to be held captive without charge at the Guantanamo Bay prison.
Whoever wins the upcoming election, there is still an opportunity to reverse course in both respects. The president can begin by excluding from the administration anyone involved in establishing, managing, directly carrying out, or providing legal arguments for the torture program, or for torture and/or cruel, inhuman or degrading treatment or punishment (CIDT) in CIA or military custody.
The president should also publicly disclose the final report prepared by Assistant U.S. Attorney John Durham, who from 2008 – 2012 conducted a narrow and limited criminal investigation into certain aspects of the CIA torture program. Durham concluded that no charges should be brought against anyone; the public deserves to know why. In examining two deaths of men in U.S. custody, for example, all the public knows is that former Attorney General Holder declined prosecution “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt” – a conclusion that raises questions about classification and disclosure, the nature of the evidence collected, and the efforts undertaken to collect such evidence. Those decisions could be reversed. To the extent that any redactions to Durham’s report might be necessary, they should be limited to only such information as required by Federal Rule of Criminal Procedure 6(e) or to protect legitimate privacy rights. Any redaction should be accompanied by a legal justification and a summary of the redacted content.
In conjunction with this declassification and disclosure, the next administration should re-examine for possible prosecution cases of torture by United States personnel. At the very least, if the United States remains unwilling to conduct its own prosecutions of U.S. persons for torture and war crimes as required by its treaty obligations, it must not block other investigations or punish prosecutors undertaking such efforts, including at the International Criminal Court (ICC).
Importantly for victims – whether tortured or subjected to CIDT by the CIA, the military, or others working with or at the behest of the U.S. government – the next president needs to acknowledge them, apologize, and ensure that, where desired, they are provided with rehabilitation services at U.S. government expense, in a manner in which those services can be effective. (For Guantanamo detainees currently being prosecuted, these obligations must, and can, be fulfilled while respecting the rights of victims of crimes and their families.).
Likewise, when victims seek legal or quasi-legal redress, the United States needs to respond consistent with its obligation to provide an enforceable right to a remedy. In the domestic context this might mean, for example, eschewing arguments that the status of the perpetrator – i.e., their official position or when the perpetrator is a corporation – grants de facto immunity, including in Alien Tort Statute or Torture Victim Protection Act litigation.
Similarly, the administration should support victims of torture worldwide seeking accountability in foreign courts, regional human rights bodies or international tribunals, including through a constructive approach to the ICC. With regard specifically to the ICC, the president should immediately rescind the June 11 Executive Order that has been used to impose sanctions against the Prosecutor of the ICC (along with another ICC senior staff member), and threatens to sanction or ban from the United States additional ICC staff and their family members, foreign individuals, and organizations, as well as impose civil and criminal penalties against people and entities, including U.S. persons, that provide services to the ICC. The purported justification for the Executive Order is that the Court refused to exclude from a recently approved atrocities investigation credible allegations of U.S. torture in Afghanistan, Lithuania, Poland and Romania. This justification is a reprehensible response to allegations of war crimes.
Additional Preventive Steps
Transparency, accountability, and redress are necessary to prevent a return to torture, but they aren’t sufficient. There are several complementary reforms that the next president can and should adopt, concerning interrogation, detention and transfer, and the scope of related rights and obligations. While each reform is important on its own, together they would form a thick web of additional protection against torture’s return.
With respect to interrogation policy and practice, changes must be made regarding who can interrogate, how, and pursuant to what legal authority. We know that two contractor psychologists designed the CIA torture program and were principals in carrying it out; doctors and other health professionals were involved; and the entire enterprise was blessed by widely repudiated lawyering. None of that can happen again.
Therefore, in terms of “who”: first, no contractor or subcontractor to, or working with, the government should be permitted to carry out or directly participate in any interrogation, including as analysts or interpreters. The same rule should apply to medical professionals, but must also include conduct other than direct participation which would violate the relevant professional association’s ethics rules or related professional guidelines.
Second, for government personnel legitimately permitted to conduct interrogations, additional constraints need to be imposed on how, in particular through necessary anti-abuse revisions to Army Field Manual 2-22.3 (Human Intelligence Collector Operations) (AFM).
In the spring of 2015, shortly after the Torture Report’s executive summary was released, Senators Feinstein and McCain introduced an amendment to the annual defense authorization bill designed to strengthen the prohibition on torture. The amendment, which would eventually become law, mandates that all national security interrogations – i.e., other than traditional law enforcement – adhere to the interrogation methods set out in the AFM.
While on its face the AFM contains general prohibitions against torture and CIDT, it has three significant weaknesses: first, the current version, revised in 2006, deleted a previous version’s prohibitions against sleep deprivation, stress positions, and the use of restraints to inflict pain. Second, several of the techniques the AFM authorizes could be interpreted and implemented in a manner that would result in coercive interrogation. Third, almost none of the AFM’s methods are consistent with scientific best practices, and as such could set interrogators up for failure and lead policymakers to search for more dangerous alternatives.
To address those weaknesses, the next president should:
- Add explicit prohibitions on all of the interrogation techniques used by the CIA that constitute torture and/or CIDT, both those that were authorized and those that were not apparently officially authorized but inflicted nonetheless. (Some, but not all, of these prohibitions existed in the 1992 version of the AFM but were deleted from the 2006 version). The prohibitions should include abusive conditions of confinement that were used to “facilitate” interrogations. The AFM should be clear that these explicit prohibitions are not an exhaustive list of banned interrogation methods;
- Remove from the list of permitted techniques each of the following: “Separation” (which could be interpreted to allow extended isolation, and sensory and sleep deprivation); “Emotional fear up” (where an interrogator creates or preys upon a detainee’s existing fears); and “Emotional futility” (designed to “engender a feeling of hopelessness and helplessness on the part of the source.”).
- Conduct a science-based review of the remainder of the AFM’s methods – using research produced by the High Value Detainee Interrogation Group as a start – and additionally revise the AFM consistent with scientific best practices; and
- Mandate (whether through the AFM or otherwise) that interrogations of any persons in the custody or under the effective control of any officer, employee, contractor, subcontractor, or other agent of the United States government be videotaped or otherwise electronically recorded and that the records of those interrogations be preserved.
Lastly, the president must leave no doubt that all of the notorious “torture memos” and related Office of Legal Counsel and other analyses and decisions that in any way facilitated authorization or implementation of torture and/or CIDT (by the CIA, the military, or private contractors) have been formally withdrawn. Prohibiting reliance on legal opinions through executive order isn’t enough. This process should begin with, but not necessarily be limited to, rescinding:
- Memorandum for Files from Steven G. Bradbury Re: Legal Review of Defense Draft Documents Regarding Treatment and Interrogation of Detainees (April 13, 2006); and
- Memorandum for John A. Rizzo, Acting General Counsel, Central Intelligence Agency, from Steven G. Bradbury, Re: Application of the Detainee Treatment Act to Conditions of Confinement at Central Intelligence Agency Detention Facilities (Aug. 31, 2006).
Detention and Transfer
A less often discussed feature of the McCain-Feinstein amendment is a requirement that the government notify the International Committee of the Red Cross (ICRC) and allow “prompt access” by the ICRC to detainees in an armed conflict. That’s a good start, but the obligation needs additional specificity, as follows:
- Ensure that as soon as possible and within 72 hours, without exception, the ICRC is provided notice of any individual who is detained in an armed conflict and held in the custody or under the effective control of an officer, employee, contractor, subcontractor, or other agent of the United States government, including in proxy detention by a foreign government;
- Require notice even for detainees who are transferred to foreign custody in less than 72 hours;
- Ensure that as soon as possible, and within 14 days at most, the ICRC is provided access to any individual who is detained in an armed conflict and held in the custody or under the effective control of an officer, employee, contractor, subcontractor, or other agent of the United States government. Ensure that access is only delayed when: 1) it would be impossible; 2) it would place individuals’ lives in imminent danger; or 3) when delay is necessitated by the ICRC itself. For circumstances 1 and 2, any delay should be for no longer than 7 day periods pursuant to a written request approved by the Secretary of Defense or the President; and
- Allow the ICRC to conduct “exit interviews” with detainees in U.S. custody or under the effective control of an officer, employee, contractor, subcontractor, or other agent of the United States government when such detainees are designated for transfer to foreign countries but prior to their transfer. Such interviews must be conducted with sufficient lead time to adequately address any resulting concerns.
Regarding detainee transfers, the executive branch should not interpret CAT’s non-refoulement prohibition – which forbids transferring a person to another State “where there are substantial grounds for believing that he would be in danger of being subjected to torture” – as limited to transfers where it is “more likely than not” that they would be tortured. Instead, the U.S. should follow CAT Committee practice and determine that “substantial grounds” exist whenever the risk of torture is “foreseeable, personal, present and real.” “Diplomatic assurances” must not be used to circumvent, or result in circumventing, such requirements.
More broadly, the next president should prohibit any rendition of any person to the custody of another country without judicial process, which must include the right to challenge any such transfer before a court, with a right to appeal. All lawful transfers must comply with U.S. obligations under human rights treaties, in particular CAT, especially when the United States seeks to transfer people to countries in which fundamental human rights are routinely violated or remedies for violations are not available in practice.
Scope of Anti-Torture Rights and Obligations
It is equally critical to upholding the prohibition on torture that the strengthened and additional protections we recommend apply with sufficient breadth. To that end, the next president should explicitly and publicly affirm that U.S. obligations under CAT apply anywhere the United States, through its officers, employees, contractors, subcontractors, or other U.S. government agents, exercises “effective control”; that is, those obligations are not limited to “territory under U.S. jurisdiction” and “places that the U.S. controls as a governmental authority,” and likewise, that claims to redress are not similarly limited. The president should also affirm that the same set of actors is prohibited from directing, coordinating, conspiring, aiding or abetting, or otherwise participating in any third party conduct that is prohibited by CAT.
Avoiding narrow constructions of anti-torture obligations applies in the evidentiary context, too. Executive branch officials must make publicly clear that information obtained through torture and/or CIDT – including information that is subsequently obtained but originated from torture and/or CIDT – cannot and will not be used in any judicial or administrative proceeding whatsoever, except against a person accused of torture and/or CIDT as evidence that the statement was made. And in any judicial or administrative proceeding of any kind, it should be presumed that any statement made or evidence obtained from a detainee subjected to the torture program, from the time they arrived in CIA or foreign government custody or control, is involuntary and coerced.
Finally, to help ensure adherence to all U.S. anti-torture obligations everywhere they apply, the president should commit to safeguarding and strengthening whistleblower protections, particularly within the military and CIA.
Some may question why these actions remain necessary given that the official torture program was dismantled, as far as we know has not been resurrected, and there seems to be bipartisan support for that status quo. Beyond the compelling legal, moral, and ethical reasons, these reforms close potentially dangerous loopholes. The time to close them is now, before they are (again) exploited in a moment of acute crisis.
This country is still suffering from the institutional and cultural corrosion associated with the secrecy, impunity, and denial of remedies for survivors and victims—virtually all Muslim men and boys—that characterized the post-9/11 torture program. It is long past time to acknowledge as much, but not too late to repair the damage that’s been done and to chart a sustainable and rights-respecting new course going forward.