The Question of Prosecution

The 525-page executive summary of the torture report released this week, and the debate that has followed thus far, is in many respects so dense it is a struggle just to decide where to begin engaging. Having spent years of my life as a human rights lawyer working on precisely these issues – preparing reports on secret detentions, and indeed detainee deaths in U.S. custody, among other things – and having spent plenty of days in shock and horror at what we learned then, I had come to feel almost inured to new revelations. Power drill to the head? We’d seen that earlier. Detainee died of hypothermia having been left mostly naked in his dungeon-like cell? Knew that too. But beyond the important new detail about our treatment of detainees the report offers, it is for me the facts the report reveals about the level of fundamental professional incompetence giving rise to this program, and the extent of the CIA’s efforts to keep information about it from other parts of our own government – including the director of the FBI and two U.S. secretaries of state – that leaves me newly in awe. Among the many telling (and I believe unrefuted) passages of incompetence (p. 11 of the Report): “Numerous CIA officers had serious documented personal and professional problems – including histories of violence and records of abusive treatment of others- that should have called into question their suitability to participate” in the interrogation and detention program. More, the private psychologists CIA hired to develop, operate and assess its interrogation program lacked any “experience as an interrogator, knowledge of Al Qaida, background in counterterrorism, or any relevant cultural or linguistic expertise.” Even as I continue to work through the text of the report, it is clear that it should be required reading for all Americans.

For now, though, I want to begin with one of the questions the report raises that I find much more difficult to assess: whether and how those responsible for the acts of torture described in the report should be held accountable.

To an important extent, this is of course a question of law, and law imposes its own set of limitations on the possibilities. The U.S. Department of Justice investigated some of these cases for the purpose of considering criminal prosecution of the perpetrators – particularly those cases in which it was clear agents in the field exceeded the already sweeping authority given by the flawed Department of Justice authorization – but concluded there was insufficient evidence to establish individual guilt beyond a reasonable doubt at trial. The DOJ decision not to proceed with prosecution has been criticized, and perhaps rightly so – we need to know more about the basis on which it declined prosecution. But the notion that there is insufficient evidence for many of them is at least plausible on its face. The military lost or failed to preserve plenty of evidence of cases of detainees who died in its custody, and we know from the Senate report and elsewhere that the CIA destroyed at least some evidence as well. This hardly excuses the failure to preserve evidence, much less to facilitate its willful destruction, but it is one of the phenomena at work here that can make succeeding in a lawful prosecution for torture far harder.

Critically, while the Convention Against Torture, to which the United States is party, requires state parties to refer for prosecution acts of torture committed by its nationals (if it does not extradite them for prosecution elsewhere), the Convention is clear that a state’s prosecution authorities “shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State.” In other words, if the prosecution can’t assemble the evidence it needs to prevail in an ordinary criminal case, it can’t prevail in charging torture.

But such concerns seem more relevant to the prospect of criminal accountability for the actual, relatively low level perpetrators of the torture. As UN Special Rapporteur Ben Emerson argues: “[T]he heaviest penalties should be reserved for those most seriously implicated in the planning and purported authorisation of these crimes. Former Bush Administration officials who have admitted their involvement in the programme should also face criminal prosecution for their acts.” In recent days, I have seen much discussion among distinguished anti-torture and human rights lawyers reconciling themselves to the conclusion that no U.S. Department of Justice (and certainly not the current one) would bring criminal charges against, for example, former head of the CIA or the Vice President of the United States, despite their admission of the authorizations they gave, and their continued endorsement of the program. It was largely this assessment of domestic political reality that led ACLU head Anthony Romero to call for the President to pardon former President Bush and others who authorized or facilitated torture. As Romero put it: “it may be the only way to establish, once and for all, that torture is illegal.”

I tend to agree with the underlying assessment of political reality and have therefore focused in the past decade on advocating for other measures of accountability – a truth commission, a fund for victims of torture, etc. I continue to support such measures. But assessing whether an administration will pursue prosecution is different from addressing the question of whether any administration should do so. The case for moving forward is apparent: torture is a violation of U.S. criminal law, treaty commitments we have ourselves made require us to pursue prosecution (at least to the same extent we do for any other serious act of criminality), prosecution will demonstrate to our allies and enemies the depth of our commitment to the rule of law, failure to prosecute these cases undermines perhaps the most important behavioral incentive U.S. officials have against ever doing such things again. The case is compelling.

Then I try to picture such a prosecution unfolding in the United States today. Or rather, in an American universe in which a future administration decided, or appointed a special prosecutor who decided, to move ahead with high level prosecutions (on a provable charge to which no statute of limitations applied). Could justice be done in such a case? Would justice be perceived to have been done? Which is better for the future maintenance of a prohibition against torture? No prosecution at all, or a case in which a former President is acquitted by a sympathetic jury, or in which a former President is convicted and whose conviction is overturned in a Bush v. Gore-like decision of the Supreme Court? In such conceivable eventualities, we have not only failed to reinforce the prohibition against torture, we may do profound damage to the perceived legitimacy of the rule of law system that remains.

The bureaucracy that enabled the torture of so many human beings has done so much damage to the United States already. The challenge of what to do next is to me, a question of how not to make matters even worse.