The SSCI Report and the Right to the Truth about the CIA’s Secret Detention and Extraordinary Rendition Program

Today’s vote to declassify and ultimately release portions of the exhaustive Senate Select Committee on Intelligence (SSCI) report on the CIA’s rendition, detention, and interrogation program is a crucial milestone in the quest for transparency concerning U.S. extraordinary rendition and torture. A human rights perspective on the significance of the release underscores what is still left to be done, and reminds us of the stake we all have in transparency and disclosure. In recent years, international and regional human rights bodies have championed the “right to truth” in the aftermath of gross human rights violations. Various bodies trace the right to treaty-based obligations of states to investigate, remedy, and ensure the non-recurrence of grave harms such as enforced disappearance and extrajudicial killings, as well as to provisions of international humanitarian law.  In 2012, the European Court of Human Rights applied this right to Macedonian abuses related to the U.S. extraordinary rendition program in the case of El-Masri v. Macedonia. The question thus presents itself: is the declassification and release of portions of the SSCI report compelled by the right to the truth? Can the process—marred as it is by a conflict of interest in which the CIA has a key role in reviewing portions of the report for declassification—ultimately reveal those facts the American public needs in order to assess what was done in our name?

Unlike many rights, which belong solely to victims, society at large holds a right to the truth about gross violations committed by their government. Thus, while the release of the executive summary of the SSCI report is important in efforts to provide some redress to individuals who were once held and transferred by the CIA, the right to the truth is held by all of us. As the UN Special Rapporteur on the Promotion of Truth, Pablo de Greiff has explained, this right entitles “the public at large to seek and obtain all relevant information” concerning violations, the fate and whereabouts of the victims, and “where appropriate, the process by which the alleged violation was officially authorized.” Extraordinary rendition has been found by a wide variety of human rights bodies to violate binding law against torture and cruel treatment and to amount to enforced disappearance. Secret, incommunicado detention in CIA black sites or foreign sites at the behest of the United States has been similarly condemned as a grave human rights violation. The severity and systematic nature of these forms of treatment thus give rise to a right to the truth about the program.

For years, civil liberties and human rights organizations, lawyers representing former CIA detainees, and the media have sought but often not obtained the release of documents and other records concerning extraordinary rendition and secret detention. These efforts have involved cases on behalf of disappeared and rendered persons, FOIA requests and lawsuits, aborted efforts to create a bipartisan commission to investigate the program, and lobbying aimed at convincing the Obama Administration to declassify and release documents related to the program. After all, President Obama shut down key aspects of the program soon after his inauguration. While there have been some real successes in this drive for transparency (notable examples are the documents released in the ACLU’s Torture FOIA suit and the Obama Administration’s decision to officially release relevant DOJ Office of Legal Counsel memoranda after they were leaked), these were hard-won, and many other efforts have been stymied. The state secrets doctrine, national security exemptions to FOIA and related doctrines such as the Glomar exception (“we can neither confirm nor deny the existence of responsive records”) have allowed the government to withhold relevant information about the violations undertaken in the name of U.S. citizens. As the European Court of Human Rights found in the El-Masri case, the right to the truth in such circumstances is shared by the general public, and that:

“The issue of ‘extraordinary rendition’ attracted worldwide attention and triggered inquiries by many international and intergovernmental organisations, including the UN human rights bodies, the Council of Europe and the European Parliament. The latter revealed that some of the States concerned were not interested in seeing the truth come out. The concept of ‘State secrets’ has often been invoked to obstruct the search for the truth . . .” (para. 191)

In the face of these failures, the Court found that the general public has “the right to know what [] happened.” The public’s right to concerning the CIA program thus would require the release of information about the rationale for, the workings of, and the aftermath of secret detention and extraordinary rendition. If media information about the contents of the SSCI report are accurate, even the release of the executive summary would clarify many of these as-yet-undisclosed details. How much of the report will be redacted, however? Will basic facts about the violations committed by the U.S. government when it forcibly transferred, secretly detained, and disappeared individuals be made public?

The second prong of the right to the truth is the ability to access information about the fate and whereabouts of individuals victimized by gross abuse. The truth about the “fate” of individuals held by the CIA in secret “black sites,” special CIA sections of DOD detention centers, and facilities loaned to the agency by local security services have never been officially disclosed. Certainly, some information has been revealed by the U.S. government. When the 14 “high-value detainees” were transferred out of the black sites to Guantánamo in September 2006, the Director of National Intelligence released a cursory “fact sheet” about the program and a short bio about each HVD. Equivalent information has not been officially released about the many detainees who were sorted out of the CIA program, however—to Guantánamo (like Ismail Mohamoud Mohamed), to their home countries (like my client Mohammed al-Asad), or to third countries (like Khaled El-Masri, who was dropped off in Albania and left to wander toward a border crossing). Released OLC and Department of Justice memos describe some—but not all—of the techniques used during sessions of “enhanced interrogation.” Human rights groups have compiled exhaustive reports that uncover the identity of some countries that hosted black sites or held CIA detainees and have periodically released lists of those thought to have been held, or killed, in CIA custody. Investigative journalists, often relying on leaks, have revealed information about the torture techniques used by the CIA. Some of those journalists’ sources have landed in jail as a result. Thus, while Wikileaks documents, investigative reports, and media accounts have filled in crucial details, the government has not disclosed sufficient information about where the detainees were held, the specific techniques used on them, and any injuries they sustained. All of these details are surely encompassed within the meaning of the term “fate and whereabouts” and thus should be made public according to the right to the truth.

The final prong of the right to the truth is access to information about how violations were authorized by government officials in the first place. This is the element where perhaps the most headway has been made. The “torture memos” have been acknowledged, officially released, and extensively analyzed. The role of President Bush, Vice President Cheney, and key players at the CIA, Department of Defense, and DOJ Office of Legal Counsel in approving the program have been the subject of disclosures and much commentary. Still undisclosed are details about the extent to which Congressional oversight committees such as the SSCI were briefed on the details of the program during its operation.

If the executive summary of the SSCI report is declassified and released without significant redactions, the United States will be fulfilling some of the obligations it owes to the general public concerning grave violations carried out in their name. The right to truth requires institutions to act in such a way as to “lead to the revelation of the truth, which is seen as a process to seek information and facts about what has actually taken place, to contribute to the fight against impunity, [and] to the reinstatement of the rule of law.” The release of the SSCI report would be a big step forward, but it cannot be the last: the American public deserves no less. 

About the Author(s)

Meg Satterthwaite

Professor of Clinical Law at New York University School of Law, Faculty Director of the Center for Human Rights and Global Justice, Director of the Global Justice Clinic Follow her on Twitter (@SatterthwaiteML).