No More Excuses for CIA Torture

It is now well established that following the attacks on the United States on September 11, 2001, the US Central Intelligence Agency (CIA) operated a global, state-sanctioned program in which it abducted scores of people throughout the world, held them in secret detention—sometimes for years—or “rendered” them to various countries, and tortured or otherwise ill-treated them. While the program officially ended in 2009, the cover-up of these crimes appears to be ongoing.

Many detainees were held by the CIA in pitch-dark windowless cells, chained to walls, naked or diapered, for weeks or months at a time. The CIA forced them into painful stress positions that made it impossible for them to lie down or sleep for days, to the point where many hallucinated or begged to be killed to end their misery. It used “waterboarding” and similar techniques to cause near suffocation or drowning, crammed detainees naked into tiny boxes, and prevented them from bathing, using toilets, or cutting their hair or nails for months. “We looked like monsters,” one detainee said of his appearance while in CIA custody.

Much new information about detention and interrogation in the CIA program became public with the release in redacted form of the 499-page summary of the Senate Select Committee on Intelligence report in December 2014 (“Senate Summary”). The Senate Summary reported that the CIA subjected at least five detainees to “rectal feeding,” described in one case as infusing the pureed contents of a lunch tray into the detainee’s rectum via a medical tube, done “without evidence of medical necessity.” The Senate Summary also found that during a waterboarding session, one detainee became “completely unresponsive, with bubbles rising through his open, full mouth.” The CIA forced some detainees to stand for days on end without sleep while they had broken bones in their legs and feet, even though CIA personnel knew this would cause them long-term physical injury. A CIA cable described one detainee as “clearly a broken man” and “on the verge of complete breakdown.”

The US government has not adequately accounted for these abuses. It has an obligation under international law to prosecute torture where warranted and provide redress to victims, but it has done neither. No one with real responsibility for these crimes has been held accountable and the government has actively thwarted attempts on the part of victims to obtain redress and compensation in US courts.

The Obama administration asserted that it conducted a criminal investigation of the CIA program through a Department of Justice inquiry led by a career prosecutor, Assistant US Attorney John Durham. The Durham investigation closed on August 30, 2012 without bringing any criminal charges. The apparent failure of the investigation to question current or former detainees undercuts any claims that it was thorough or credible.

As set out in this report, Human Rights Watch concludes there is substantial evidence to support the opening of new investigations into allegations of criminal offenses by numerous US officials and agents in connection with the CIA program. These include torture, assault, sexual abuse, war crimes, and conspiracy to commit such crimes. In reaching this conclusion, we have drawn on our own investigations, media and other public reports, and the declassified information in the Senate Summary. But more evidence exists that has yet to be made public.

We believe that an independent and impartial investigation that has access to the full Senate report, other information that the government continues to keep classified, and interviews with current and former detainees, would yield further evidence of crimes and identify more suspects than we do here.

US officials who played a role in the process of creating, authorizing, and implementing the CIA program should be among those investigated for conspiracy to torture as well as other crimes. They include: Acting CIA General Counsel John Rizzo, Assistant Attorney General for Office of Legal Counsel (OLC) Jay Bybee, OLC Deputy Assistant Attorney General John Yoo, an individual identified as “CTC Legal” in the Senate Summary, CIA Director George Tenet, National Security Legal Advisor John Bellinger, Attorney General John Ashcroft, White House Counsel Legal Advisor Alberto Gonzales, Counsel to the Vice President David Addington, Deputy White House Counsel Timothy Flanigan, National Security Advisor Condoleezza Rice, Defense Department General Counsel William Haynes II, Vice President Dick Cheney, and President George W. Bush. In addition, James Mitchell and Bruce Jessen, CIA psychologist contractors who devised the program, proposed it to the CIA, and helped carry it out, should also be investigated for their role in the initial conspiracy.

We believe there is also sufficient evidence to investigate others who were not necessarily part of the initial conspiracy but who later joined it. Individuals can join an already existing conspiracy if they are aware of the conspiracy’s unlawful aims, in this case torture, and take steps intended to help the conspiracy succeed. These would include those who reauthorized the program after the legal memos endorsing it—the “Torture Memos”— were withdrawn, those who supplied false information to the Justice Department upon which the Justice Department relied in providing reauthorization, and those who later oversaw operation of the CIA program.

Others should not only be investigated for torture but also for offenses such as war crimes, assault, and sexual abuse. Even if individuals who carried out the torture can be said to have reasonably relied in good faith upon OLC memos or CIA guidance to justify their conduct—which, as detailed below, there is serious reason to doubt—considerable evidence exists that CIA officers and interrogators tortured detainees in ways that went beyond what was authorized.

This report also considers and rebuts arguments that barriers to prosecution under US law—such as statutes of limitation, certain defenses, or a “specific intent” requirement—might make it impossible to pursue criminal cases.

The failure to credibly investigate and prosecute torture committed in any territory under US jurisdiction violates US obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and other treaties to which the US is a party. Other countries and entities should open their own investigations into CIA torture and should exercise universal jurisdiction, where applicable, over US nationals and others implicated in torture or other abuses. Additionally, countries that were complicit or otherwise unlawfully assisted the CIA program should also conduct investigations into the alleged illegal conduct of their own nationals.

Besides violating international law, the US government’s inaction in the face of clear evidence of torture sends a message to future US policymakers and officials that they too can commit torture and other ill-treatment and not fear being held accountable. Several presidential candidates for the 2016 elections have already indicated they would consider using so-called “enhanced interrogation techniques” if they were to be elected.

Holding government officials accountable for serious abuses is never easy; when high-level officials are involved, it can be politically divisive. But Human Rights Watch research over the past 25 years in dozens of countries has shown that forgoing criminal accountability carries a high price. (See particularly Human Rights Watch, Selling Justice Short (2009)). Lack of accountability may fuel future abuses and weaken the rule of law.

Globally, the US unwillingness to prosecute CIA torture weakens US authority to oppose torture and other abuses abroad, provides a ready excuse for countries unwilling to prevent or prosecute torture in their own countries, and undermines global respect for the rule of law.

The egregious abuse of prisoners in CIA custody and failure to hold anyone accountable has undermined global efforts to fight terrorism. Detainee abuse, including abuse of prisoners by the US military, has been used by terrorist groups to obtain new recruits and contributed to anti-US sentiment in many countries.

Ultimately, the guilt or innocence of any of the US officials involved in organizing or carrying out the CIA program will rest with the criminal justice system. Suspects should be tried in criminal proceedings that comport with international due process and fair trial standards, including allowing them to challenge evidence, present defenses, and raise mitigating circumstances. But before these fundamental institutions of democratic rule can even be set in motion, US criminal justice officials need to first conduct credible investigations and bring charges where appropriate, requirements that have gone unmet for well over a decade since the first revelations of CIA torture after 9/11.

This report is organized into three parts—credible investigations and prosecutions, redress, and international justice—reflecting different steps the US and other countries should take to pursue accountability for CIA program abuses.

Credible Investigations and Prosecutions: The first part of this report examines some of the specific federal criminal charges that could be brought against US officials involved the CIA program. The most senior responsible officials should not be able to avoid culpability on the grounds that they relied on advice from White House lawyers stating that the interrogation techniques used on detainees did not amount to torture. This defense is weak not only because the legal reasoning was so poor that it was soon repudiated by other Bush administration lawyers and virtually all other legal professionals, but also because, in this case, those involved in the CIA program themselves helped create the legal advice being used as a shield to protect them from accountability for their alleged crimes.

Officials in the CIA and at the White House should have known, from the moment the techniques in question were proposed, that they were violating the federal Torture Statute: the techniques were reverse-engineered from a program designed to train US special forces to endure torture, some were explicitly designated as torture by US courts, and many were banned in the US Army Field Manual for Intelligence Interrogations in effect at the time the abuse was approved.

And there is evidence in the Senate Summary that officials actually knew that the techniques violated the Torture Statute. According to a Department of Justice Office of Professional Responsibility investigation (OPR investigation), the CIA, through its acting General Counsel John Rizzo, expressed concern about “criminal liability” under the Torture Statute and sought, but failed to obtain, a guarantee from the Justice Department’s Criminal Division that employees would not be prosecuted for use of the techniques.

The Senate Summary also contains a reference to a draft letter to the attorney general from “CTC Legal” —a likely reference to someone in the legal department of the CIA’s counterterrorism center—acknowledging that the “aggressive methods” of interrogation the CIA was planning would violate the Torture Statute. While there are no records showing that the letter was sent, its existence shows that at least some CIA advisers believed from the beginning that the techniques being proposed were illegal. Finally, the OPR investigation also noted that in mid-2002 senior White House and CIA officials appear to have been involved in shaping the contents of the soon-to-be issued legal memos authorizing abusive interrogation techniques, with sections likely added at their request after the Justice Department refusal to give a non-prosecution guarantee.

Viewed in this context, there is strong reason to conclude that the infamous and since discredited “Torture Memos” issued by the OLC in August 2002 authorizing techniques that many others had previously determined to be torture, should be viewed as little more than a legal fig leaf. “The position taken by the government lawyers in these legal memoranda amount to counseling a client as to how to get away with violating the law,” said John Gibbons, former chief judge of the US Court of Appeals for the Third Circuit, after the memos had been released.

Other White House and CIA officials and OLC lawyers later joined the conspiracy by knowingly keeping in the dark government officials they knew would oppose the CIA program, allowing the conduct to continue despite knowledge detainees were being mistreated, and reauthorizing the program once original authorizations were revoked after news of torture by the US military at the Abu Ghraib prison in Iraq became public.

CIA personnel also engaged in practices that went well beyond the illegal techniques “authorized” by the Torture Memos. Practices such as “rectal feedings,” use of water to induce near suffocation, and certain painful stress positions, were either not authorized or administered in ways that were not authorized. As such, the memos should not even be contemplated as a defense for such actions.

Lastly, while the five-year federal statute of limitations for most federal crimes might be thought to present an insurmountable bar to prosecution, it should not apply to many of the crimes committed as part of the CIA program. It is not a bar to prosecutions for torture or conspiracy to torture when there is a “foreseeable risk that death or serious bodily injury” may result, or to prosecutions for the types of sexual abuse allegedly committed by CIA program personnel. For all federal conspiracy charges, moreover, the statute of limitations can be extended if perpetrators conceal a central component of the conspiracy, as seems to have been the case here.

Redress: The second part of this report looks at the US government’s obligation to provide redress to victims of abuse, including compensation and rehabilitation services, guarantees of non-repetition (including through legislation and public statements), and public disclosure of relevant information. The Convention against Torture and other treaties require the US to provide redress for torture and other serious abuses, including arbitrary detention and enforced disappearance. Not only has the US failed to provide compensation or any other form of redress to detainees in CIA custody, the Obama administration has blocked every attempt by former detainees to bring civil suits in US courts by invoking doctrines of state secrecy, state immunity, and national security.

International Justice: The third part of this report looks at the efforts of other governments to investigate CIA torture and related abuses that occurred in their countries. Investigations in other countries have targeted US officials as well as national officials alleged to have participated in or been complicit in CIA abuses.

The duty to prosecute serious violations of international law lies primarily with domestic judicial authorities in the country with principal jurisdiction over the crime. This normally requires having a territorial link to the crime or the persons involved. However, third countries can also investigate and prosecute on the basis of universal jurisdiction—laws embodying the idea that certain crimes, including torture and war crimes, are so egregious that every state has an interest in bringing perpetrators to justice.

The Convention against Torture contains a universal jurisdiction clause that places an affirmative duty on governments to prosecute suspects who come on their territory regardless of where the torture took place. The Geneva Conventions of 1949 relating to war crimes contains similar provisions. The US government’s failure to conduct its own thorough and credible investigations into allegations of torture increases the importance of states exercising universal jurisdiction for crimes alleged to have been carried out as part of the CIA program.

Although the United States is not a party to the International Criminal Court (ICC), the ICC may also be an avenue to accountability for alleged abuses by US nationals in Afghanistan. The ICC is conducting a preliminary examination of the situation in Afghanistan, which includes alleged torture of detainees by US armed forces there. Whether the preliminary examination will lead to a formal investigation was not known as this writing.

Methodology

The report was assembled using the numerous public source materials that now exist documenting CIA renditions, detentions, torture and other ill-treatment. This includes our own Human Rights Watch reporting and the declassified information in the Senate Summary, but also books, media, and other public reports, both by governmental and non-governmental organizations. It is also informed by nearly 15 years of our own research, reporting and analysis on US counterterrorism abuses post 9/11.

We took this extensive factual record and supplemented it with legal research into the various charges that could be brought for certain offenses under US law. In doing so we focused on the main charges that would be available for the conduct in question and did not include other charges such as obstruction of justice or false reporting that do not center on the actual conduct in question. We also tried to include the most viable charges and intentionally excluded those for which we thought a case might be made but for which it was not clear whether there was sufficient evidence to support. We also supplemented the factual record with legal research into civil remedies and international law.

Key Recommendations

To US Authorities

  • The Attorney General, with the support of the president, should appoint a special prosecutor to conduct a thorough, independent, and credible criminal investigation into the CIA torture that examines all evidence, including statements from current and former detainees.
  • The president should acknowledge wrongdoing, apologize to victims of torture, and devise policies ensuring that victims receive appropriate redress, compensation, and rehabilitation services.
  • The president should declassify the full Senate Intelligence Committee Report on the CIA rendition, detention, and interrogation program, redacting only what is strictly necessary to protect national security, to ensure there is a full public accounting of government wrongdoing and that victims of torture can obtain redress.

To Foreign Governments

  • Governments that provided support to the CIA program should ensure impartial and independent criminal investigations of complicity in torture and other criminal offenses allegedly committed in their countries by national and US officials in connection with CIA renditions or interrogations, and prosecute those implicated in crimes. Unless and until US officials show a willingness to pursue meaningful accountability for CIA torture, other governments should exercise universal jurisdiction or other forms of jurisdiction provided under international and domestic law to investigate and, evidence permitting, prosecute US officials for their alleged role in torture and other abuses.

I. Background

Short History of the CIA Program

The September 11, 2001 attacks on the United States took the lives of nearly 3,000 people and had an impact that reverberated, and still reverberates, around the globe. Following those attacks, President George W. Bush publicly sought and soon obtained from Congress the authority to use force against those responsible for the attacks and those assisting them.

Six days after the attacks, on September 17, Bush secretly issued what is known as a Memorandum of Notification (MON)—a covert action directive that granted the CIA unprecedented counterterrorism authority, including to capture and detain individuals “posing a continuing, serious threat of violence or death to U.S. persons and interests or planning terrorist activities.”[1] The MON made no reference to interrogations or coercive interrogation techniques.

The CIA immediately began developing a plan to detain individuals under the MON. Senior agency leadership acknowledged that the CIA had limited experience running detention facilities and considered acquiring expertise from the Defense Department and the Federal Bureau of Prisons.[2] In late March 2002 the CIA captured Abu Zubaydah, who became its first detainee.[3] Plans then intensified to establish the use of certain aggressive interrogation techniques. Arguments ensued between the Federal Bureau of Investigation (FBI) and the CIA over the types of interrogation techniques that should be used.[4] The FBI wanted to use methods that they had developed for years that did not involve violence or force. FBI agents and officers involved in these discussions said the aggressive techniques the CIA sought to use were not only ineffectual, but would taint any evidence they acquired for use in criminal trials.[5]

The CIA proposed the use of 12 interrogation techniques.[6] The techniques, proposed by two CIA contractors, had previously been used by the military’s Joint Personnel Recovery Agency (JPRA) to train US Special Forces to better endure interrogation methods used by enemies who did not abide by the Geneva Conventions.[7]

The 12 “enhanced interrogation techniques” proposed were: (1) the attention grasp; (2) “walling”; (3) facial hold; (4) facial slap; (5) cramped confinement; (6) wall standing; (7) stress positions; (8) sleep deprivation; (9) waterboarding; (10) use of diapers; (11) use of insects; and (12) mock burial.[8] When it was clear that the CIA was going to use such methods, the FBI refused to participate in any further interrogations using “enhanced interrogation techniques” or participate in any further discussions about the matter.[9]

As detailed below, the decision to use these techniques was discussed extensively among senior US officials, including but not limited to: CIA General Counsel John Rizzo, Assistant Attorney General and OLC head Jay Bybee, OLC Deputy Assistant Attorney General John Yoo, an unnamed individual identified as “CTC Legal” in the Senate Summary, CIA Director George Tenet, National Security Legal Advisor John Bellinger, Attorney General John Ashcroft, White House Counsel Alberto Gonzales, Counsel to the Vice President David Addington, Deputy White House Counsel Timothy Flanigan, and National Security Advisor Condoleezza Rice.

Before the CIA used the full panoply of these techniques on Abu Zubaydah, the agency sought a guarantee that the Justice Department Criminal Division would not prosecute any US personnel involved.[10] The Criminal Division refused.[11] Following this, the CIA began working intensely with the attorneys in the OLC to obtain memos that would authorize the techniques proposed. (Meetings and deliberations about the content of the memos are discussed in detail below.) Two memos were eventually issued on August 1, 2002. The principal author of the memos was Yoo and they were signed by Assistant Attorney General Jay Bybee.[12]

The first memo was addressed to Gonzales and became known as the “Bybee I Memo.” It was unclassified and analyzed the domestic and international legal prohibitions on torture and, among other things, articulated an exceedingly high threshold, later repudiated by the Bush administration, for what constitutes torture: physical pain equivalent in intensity to that accompanying “organ failure, impairment of bodily function, or even death.”[13] It did not discuss the legality of any particular technique nor the legality of applying any type of technique on a specific detainee. It was not made public until it was leaked to the media in June 2004.[14]

The second memo, which was classified, was addressed to John Rizzo but also signed by Bybee, became known as the “Bybee II Memo.” It was not released publicly until 2009 and discussed the legality of each of the techniques individually, approving 10 specific interrogation tactics proposed for use on detainee Abu Zubaydah.[15] (“Diapering” and the “mock burial,” though initially proposed, were not discussed in the memo). These two memos collectively have publicly become known as the “Bybee Memos,” the “August 1, 2002 OLC Memos,” or the “Torture Memos.”[16]

After these memos were issued, the CIA began using what they called “enhanced interrogation techniques” with little guidance. The CIA now admits that its guidance was poor during this period.[17] At some point after “enhanced interrogation techniques” and detentions were contemplated, the CIA began opening and operating a number of secret detention centers around the world. The US government has still not disclosed exactly where and how many sites it operated. Though a number of CIA sites are identified in the Senate Summary, they are designated using pseudonyms for their locations. But the media and others have long reported that the CIA operated detention centers in at least Afghanistan, Lithuania, Poland, Romania, and Thailand.[18] Additionally, the CIA worked in conjunction with a number of other countries to operate, run or use detention sites in locations that included but were not limited to Morocco,[19] Jordan,[20] Pakistan,[21] and Egypt.[22]

During the course of the CIA program, the agency held at least 119 individuals in CIA-run detention centers, according to the Senate Summary. This is a conservative estimate[23] and does not include a number of detainees who were unlawfully rendered as part of the CIA program.[24]

The full name for the CIA Program was the “Rendition, Detention and Interrogation” (RDI) program. Unlawful renditions were a part of the program but the Senate Summary did not address this aspect of it.[25] The summary lists only the names of 119 individuals it considers to be “detainees” in that there was “clear evidence of detention in CIA custody.”[26] Left off the list are an unknown number of individuals whom the CIA unlawfully rendered to countries where it was known or recognized as likely that they would be tortured, whether as part of their interrogation or as punishment.[27] Many of those rendered described being held by the CIA or by another government with the CIA’s cooperation, either before or after their transfer.[28]

Of the 119 individuals the CIA considers to have been CIA “detainees,” according to the Senate Summary, at least 26 were “wrongfully held,” and did not meet the CIA’s own standards for detention.[29] “CIA records provide insufficient information to justify the detention of many other detainees.”[30]

In November 2002, detainee Gul Rahman died from hypothermia after being shackled half-naked to a concrete floor overnight in CIA custody at a detention site in Afghanistan.[31] His death spurred an investigation by the CIA Office of the Inspector General (OIG), including into the broader CIA program. The findings, issued in classified form in a May 2004 report (“CIA OIG Report”), were sharply critical of the both the CIA’s use of techniques in an authorized manner, and the use of techniques not authorized.[32]

While the OIG investigation was ongoing, media outlets began reporting that the US was using abusive interrogation methods on detainees in secret detention centers.[33] To counter these reports, the Bush administration began putting out a number of statements aimed at alleviating concerns that the US might be abusing or torturing prisoners. These statements attempted to discount any possibility that the US was using torture and to emphasize that all detainees were being treated humanely even if they were not, in the administration’s view, protected by international law.[34]

These statements caused concern among the CIA leadership that other parts of the executive branch were not backing the CIA’s program. The CIA began to seek assurances from Secretary of State Rice, the OLC, and other executive branch departments that they continued to support the CIA program. This generated another series of high-level meetings during which the CIA secured reassurance that the White House and the Justice Department backed the program.[35]

After the CIA OIG Report was issued, CIA Director Tenet suspended both the use of what were called “standard” interrogation techniques, as well as “enhanced interrogation techniques,” pending a legal and policy review.[36] The CIA OIG Report also called for the CIA to justify the usefulness and necessity of the “enhanced interrogation” program.

Even before the OLC and the CIA approved the use of “enhanced interrogation techniques,” the US military had already begun using some of the tactics later authorized in the August 1, 2002 OLC Memos and had trained military interrogators in their use. Formal OLC and CIA approval set the stage for more widespread use of abusive techniques by the military.[37]

In March 2004, reports and photographs emerged about detainee abuse by US military personnel at Abu Ghraib prison in Iraq causing a national scandal.[38] And in June 2004, the Bybee I Memo was leaked to the media.[39] By this time Yoo had left OLC, and Jack Goldsmith was named to replace him.[40]

Goldsmith reexamined the August 1, 2002 memos and concluded that the Bybee I Memo was “riddled with error” and a “one-sided effort to eliminate any hurdles posed by the torture law.”[41] On May 3, 2004, in an attempt to get reassurance from OLC that they still endorsed the use of “enhanced interrogation techniques,” Muller wrote Goldsmith asking that he reaffirm OLC approval of the techniques as well as approve new ones.[42] On May 27, Goldsmith wrote back to Muller saying that he “strongly recommended” that the CIA suspend use of waterboarding and review steps taken to ensure that in actual practice any use of CIA techniques “adheres closely to the assumptions and limitations in the August 2002 opinion [the Bybee memos].”[43] On June 15, 2004, Goldsmith withdrew the Bybee I Memo and submitted his letter of resignation the following day.[44] Goldsmith kept in place OLC approval for all of the enhanced interrogation techniques other than waterboarding but subject to the assumptions, limitations, and safeguards laid out in the Bybee II Memo, which had not been withdrawn.[45]

Daniel Levin, who took over as acting head of the OLC after Goldsmith’s departure, inherited the task of issuing replacement memos for the Bybee I and Bybee II memos.[46] On August 6, 2004, he issued a memo authorizing waterboarding[47] and on December 30, 2004, issued a new legal opinion to replace the unclassified Bybee I Memo.[48] Levin’s replacement memo, like the Bybee I memo, analyzed the legal limits of the prohibitions on torture but it acknowledged that the prior legal reasoning was wrong.[49] Levin planned to draft a new memo to replace the classified Bybee II Memo as well but he left the office in February 2005 before he had finished those memos.[50]

The OLC deputy head, Stephen Bradbury, temporarily took over Levin’s vacant position. He issued two new memos, both on May 10, 2005, intended to replace the Bybee II classified memo. One discussed the legality of individual interrogation techniques and authorized all of the same techniques approved in the Bybee II memo, but with new legal reasoning (“Bradbury Individual Techniques Memo”).[51] The memo also authorized several techniques that had not been the subject of OLC opinions but had already been used by the CIA, such as “water dousing” and “nudity.” The second May 10, 2005 memo addressed the techniques covered in the Bradbury Individual Techniques Memo but clarified that their use in combination with one another would not violate the Torture Statute (“Bradbury Combined Techniques Memo”).[52] Though previously not approved by official OLC memo on any detainee other than Abu Zubaydah, and even then only in cursory fashion,[53] the CIA had since the start of the program frequently used multiple “enhanced interrogation techniques” in combination.[54] A third memo, issued on March 30, 2005, analyzed whether the techniques would violate the prohibition against cruel, inhuman, or degrading treatment or punishment prohibited under the Convention against Torture, and found that they would not (“Bradbury CIDT Memo”).[55]

In December 2005, the US Congress passed the Detainee Treatment Act, which barred the use of cruel, inhuman, or degrading treatment or punishment against any detainee in US custody and required the Defense Department to follow the US Army Field Manual on Intelligence Interrogations when conducting interrogations.[56]

In a speech on September 6, 2006, President Bush formally disclosed the existence of the CIA interrogation program to the public.[57] He announced that a “small number” of detainees had been held by the CIA in locations that he could not disclose and praised the program for having “saved innocent lives.”[58] He also announced that the remaining 14 detainees in CIA custody at the time would be sent to the military detention facility at Guantanamo Bay. But he did not end the CIA program at this time. He said it needed to continue because it was “crucial to getting lifesaving information.”[59] As late as July 20, 2007, the OLC issued yet another memo authorizing the CIA to use techniques that were abusive, asserting that they would not violate US laws against torture and other ill-treatment or the newly enacted Detainee Treatment Act.[60]

President Barack Obama, on his second full day in office on January 22, 2009, signed an executive order closing the CIA’s secret detention facilities and ending the use of “enhanced interrogation techniques.”[61]

The CIA Program: What Was Known before the Senate Summary

Before release of the Senate Summary, substantial information had already been published about the CIA program. As early as December 2002, accounts began to emerge of the CIA subjecting detainees to stress positions, unlawful renditions, and other forms of abuse.[62] Following these initial reports, various media outlets and human rights organizations sought to document CIA activities more extensively. As early as 2003, Human Rights Watch had already interviewed persons in Afghanistan with information about CIA detention and, in a series of reports on “Ghost Detainees,” we had published initial information on dozens of detainees who had disappeared into US custody.[63]

Especially after news broke of torture and other abuse of detainees by the US military at Abu Ghraib, media outlets and rights organizations frequently reported on CIA abuse of detainees, US efforts to circumvent laws prohibiting torture and other ill-treatment, and the existence of secret CIA detention sites.[64]

The US Military’s Approval and Use of Torture and Other Ill-Treatment[65]The harm of CIA torture was compounded by the US military’s adoption of many of the CIA-approved interrogation techniques.The military’s use of the techniques dates to December 2001, when the Office of the Secretary of Defense inquired into the Survival, Evasion, Resistance, and Escape (SERE) program. SERE methods were being used by the military’s Joint Personnel Recovery Agency (JPRA) to train US Special Forces to endure interrogation methods used by enemy forces that did not abide by the laws of armed conflict.[66] These techniques, many drawn from the experiences of US service members captured by North Korea during the Korean War, included stripping detainees naked for degradation purposes, exploiting cultural or religious taboos, use of forced standing, exposure to cold, and prolonged sleep deprivation.[67] The CIA later drew on these same SERE techniques to create its “enhanced interrogation” program.[68]In February 2002, JPRA personnel began providing training and written materials to personnel in or headed to Guantanamo and Afghanistan.[69] In July the CIA proposed the use of SERE-derived interrogation techniques with the first detainee held by the CIA, Abu Zubaydah. In mid-September 2002, just after the OLC issued its first memo authorizing CIA torture, JPRA staff began training Guantanamo personnel in the use of abusive SERE school techniques.[70]In late September 2002, a delegation of senior officials, including Defense General Counsel William Haynes, White House General Counsel Alberto Gonzales, CIA General Counsel John Rizzo, and Chief of the Criminal Division of the Justice Department Michael Chertoff, visited the military detention facility at Guantanamo to discuss how interrogations were being managed there.[71] The evidence available suggests that the group encouraged the practices.[72]By October 2002 Guantanamo commander Maj. Gen. Michael Dunlavey was requesting authority to use more aggressive interrogation techniques including stress positions; isolation for up to 30 days; deprivation of light and sound; exploiting individual phobias such as fear of dogs; forced grooming; use of scenarios designed to convince the detainee that death or severely painful consequences were imminent for him or his family; and waterboarding.[73]

In 2003, several media outlets began to report on CIA interrogation techniques.[88] In March 2004 details of an army investigation into prisoner abuse in Iraq began to surface.[89] In April CBS published photos of the abuse at Abu Ghraib prison. And in May The New Yorker published an extensive expose about the abuse.[90] Then in June, one of the Bybee memos purportedly authorizing the CIA’s use of “enhanced interrogation techniques” was leaked to the media.[91]

Haynes submitted a memo to Rumsfeld asking that he approve most of the methods Dunlavey requested, with the exception of waterboarding. On December 2, 2002, Rumsfeld approved most of the recommended techniques and appended a handwritten note to his authorization of these techniques: “I stand for 8-10 hours a day. Why is standing limited to 4 hours?”[74]Roughly two weeks later after concerns about Rumsfeld’s order were raised with Navy General Counsel Alberto Mora, Mora in turn, raised his concerns with Haynes among others. After asserting pressure but still not receiving assurances that the orders would be rescinded, Mora met with Haynes warning him that the “interrogation policies could threaten Secretary Rumsfeld’s tenure and could even damage the presidency.”[75] On January 15 2003, uncertain whether there would be any change to the interrogation policy, Mora delivered a draft memorandum to Haynes stating that the majority of the proposed techniques violated domestic and international laws, at minimum constituting “cruel and unusual treatment and, at worst, torture.”[76] Mora told Haynes that he would not sign the memorandum unless Rumsfeld rescinded his order.[77] Rumsfeld did so on January 15, 2003 but at the same time said that commanders could get approval for the techniques if they asked for it and provided justification.[78] On April 16, 2003, Rumsfeld issued a new memorandum that, while more restrictive than the December 2002 rules, still allowed techniques that went beyond what the laws of war permitted, including isolation, dietary manipulation, and sleep adjustment.[79]Because of President Bush’s February 7, 2002 decision to reject the applicability of the Geneva Conventions to Al-Qaeda and Taliban prisoners in Afghanistan, there was no overarching prescribed interrogation regime for prisoners held there. [80] In late 2002, Special Mission Unit Task Force (SMU TF) officials from Afghanistan visited Guantanamo, compared notes on techniques from JPRA, and started drawing up a more formal list of techniques to be specifically authorized. A large portion of the SMU TF policies were based on Rumsfeld’s December 2, 2002 authorization and the legal reasoning behind the denial of wartime protections to Al-Qaeda and Taliban prisoners.[81]In January 2003, in response to a Joint Staff inquiry from US Central Command, the US military command in Afghanistan submitted a list of interrogation techniques then in use in Afghanistan. The list included techniques “similar” to those Rumsfeld had approved for Guantanamo even though that memo had been technically rescinded. When the command in Afghanistan received no complaints, it interpreted the silence to mean the techniques were unobjectionable.[82]Many US military and intelligence personnel sent to Iraq then based their interrogation policies on those formulated by the SMU TF in Afghanistan. For example, Capt. Carolyn Wood, who had helped develop interrogation policies for regular US forces in Afghanistan in late 2002—and who was implicated in the beating deaths of two detainees there in December 2002—was stationed in Iraq and put in command of Abu Ghraib interrogation operations in mid-2003. In July 2003, Captain Wood drafted a proposed interrogation policy based on the Afghanistan and Iraq SMU TF guidelines. This included the presence of military working dogs, stress positions, sleep management, loud music, and light control.[83]Around the same time, in August 2003, Gen. Geoffrey Miller, who oversaw Guantanamo interrogation efforts, went to Iraq to conduct a counterterrorism assessment. He brought with him interrogation policy guidelines for Guantanamo that he gave to Gen. Ricardo Sanchez, the overall US military commander for Iraq, and proposed them as a model.[84] Sanchez used both Wood’s proposed policy and the Guantanamo guidelines to come up with interrogation guidelines for Iraq that he issued on September 14, 2003.[85] The abusive techniques approved, along with other techniques used by the SMU TF units, were among those being used at Abu Ghraib prison when the scandal connected to abuse there became public in 2004.[86]The US military record on criminal accountability for abuse of detainees post-9/11 has been abysmal. In 2007, Human Rights Watch collected information on some 350 cases of alleged abuse involving more than 600 military personnel. Few had been punished. The highest-ranking officer prosecuted for the abuse of prisoners was a lieutenant colonel, Steven Jordan, court-martialed in 2006 for his role in the Abu Ghraib scandal. He was acquitted in 2007.[87]

In subsequent years, media outlets and human rights groups documented or obtained information relating to the abusive interrogations of roughly 25 CIA detainees,[92] but information on the treatment of scores of other detainees remains unavailable. Freedom of Information Act requests and lawsuits brought by the American Civil Liberties Union (ACLU) and others compelled the government to disclose a number of documents related to the CIA program.[93] But many other documents remain classified, including the September 17, 2001 Memorandum of Notification purportedly granting the CIA authority to covertly capture and detain[94] individuals posing “a continuing, serious threat of violence or death to U.S. persons and interests or planning terrorist activities,” and 11 CIA Office of Inspector General reports related to the CIA program.[95]

Justice Department Inquiry into CIA Torture

In 2007 reports emerged that the CIA had destroyed 92 videotapes depicting two CIA detainees, Abu Zubaydah and Abd al-Rahim al-Nashiri, being interrogated and subjected to the use of CIA torture techniques—including waterboarding.[96] In 2008, the US Department of Justice appointed Special Prosecutor John Durham to look into the tape destruction.[97] After Barack Obama took office, his attorney general, Eric Holder, expanded the Durham investigation to include a preliminary investigation into whether federal laws were violated as part of the CIA interrogation program.[98]

Holder said his decision to expand the investigation was based in part on a report produced by the Justice Department’s Office of Professional Responsibility (OPR) finding that two OLC attorneys, John Yoo and Jay Bybee (see below), had engaged in professional misconduct in authorizing the CIA’s use of “enhanced interrogation techniques”[99] and recommending that prior determinations by the Justice Department not to prosecute CIA abuses be reexamined.[100] (The OPR Report had not been made public at the time of Holder’s announcement and was not disclosed until February 2010).[101] It was also based on a then still-classified 2004 CIA Inspector General report.[102]

Holder, however, also set strict limits to the Durham inquiry, making clear that “the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees.”[103] That preliminary investigation looked into 101 cases of alleged CIA abuse.[104]

On November 9, 2010, Holder announced that the Justice Department would not press charges against anyone for destruction of the CIA videotapes depicting the interrogation of two detainees.[105] On June 30, 2011, he announced the closure, with no charges filed, in 99 of the 101 cases.[106] Holder provided little explanation for the decision not to press charges other than to say that Durham had concluded that many of the 101 detainees were never in CIA custody.[107] If that is the case it raises questions about who had custody of the detainees, where they were, and why this meant CIA personnel were not responsible for any wrongdoing.[108] Holder also said that he would open full investigations into the cases of the two remaining detainees, both of whom had died in US custody.[109] A year later, on August 30, 2012, Holder announced the closure of these cases without bringing any charges.[110] In closing the investigation, Holder said he made his decision because “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”[111]

The Durham investigation was primarily focused only on CIA abuse that went beyond what was authorized.[112] This limitation was always too narrow in scope because the authorizations not only permitted interrogation methods in violation of US and international law, but also because they appear to have been designed specifically to create a legal escape hatch for what would otherwise be the illegal use of torture.

Even within the administration-imposed restraints, the investigation appears wholly inadequate. There is no evidence that Durham investigators interviewed any of the detainees in the CIA program, whether still detained or since released.[113] In November 2014 five former CIA detainees who alleged that they had been badly tortured by the CIA asserted in a public letter that Durham never spoke to them during his investigation.[114] They urged the UN Committee against Torture to question the US delegation about this during the impending review of US compliance with the Convention against Torture.[115] Other organizations working with former detainees held by the CIA and detainee defense counsel also report that the Durham team never spoke to their clients.[116]

When the Committee against Torture, charged with reviewing state compliance with the Convention against Torture, asked the US delegation whether any former detainees had been interviewed, the delegation was unwilling to provide an answer. Instead, David Bitkower, deputy assistant attorney general in the Justice Department’s Criminal Division, newly disclosed that the Durham investigation had interviewed approximately 96 witnesses, but he would not say whether any of them were former CIA detainees.[117] The US response provoked the following statement from the committee:

The Committee regrets … that the delegation was not in a position to describe the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed. Thus, the Committee remains concerned about information before it that some former CIA detainees, who had been held in U.S. custody abroad, were never interviewed during the investigations, casting doubts as to whether this high-profile inquiry was properly conducted.[118]

New Details in the Senate Summary

The SSCI report is the product of six years of investigation by Senate Intelligence Committee staff members who had access to more than six million pages of CIA materials. These included operational cables, intelligence reports, internal memoranda, and emails, briefing materials, interview transcripts, contracts, and other records.[119] Notably, the staff members did not have access to more than 9,400 documents that the CIA withheld, reportedly asserting the executive privilege on behalf of the White House.[120] The full 6,700-page report was completed in December 2012.[121] However, it took nearly two years for the Senate Intelligence Committee to decide to release the Summary and for the US government to conduct declassification review. The Summary, still partially redacted, was released on December 9, 2014.[122] It is 499 pages long; the remainder of the full report remains classified.

The Summary—and likely the full report—focuses exclusively on the CIA; it does not cover abuses by other US government agencies, including the military. It also does not address the issue of CIA renditions abroad. The Summary’s main findings are that the use of “enhanced interrogation techniques” was not an effective means of gathering useful intelligence; that the CIA inflated claims that the techniques were necessary to thwart terrorist attacks; and that the techniques used were far more brutal than previously thought.[123]

The Summary covers many facts that were already well-known, but also includes many new details, including:

  • A list of all detainees that the US government says it detained in the CIA detention and interrogation program. However, the US has still not released the names and identities of detainees the CIA did not itself hold for a significant time period but instead rendered to other countries.
  • New details about the methods used in the CIA program. For example, the Summary discloses that the CIA subjected detainees to “rectal feedings,” in which CIA personnel forcibly inserted tubes into the rectums of detainees and infused pureed food into their bodies, which the Summary and medical experts conclude was not medically necessary.
  • Evidence of interrogators’ intent to cause severe pain and suffering. This includes, for example, details on how interrogators used excessively large tubes to conduct rectal feedings, or forced detainees into positions that required them to stand for days in order to deprive them of sleep when they already had broken bones in their legs, knowing it would cause permanent and lasting physical injury.
  • The disclosure that the CIA paid the company that Mitchell and Jessen formed and was put in charge of implementing, carrying out and evaluating the effectiveness of the CIA program, $81 million dollars.
  • The disclosure that Federal Bureau of Prisons officials visited one of several CIA detention facilities in November 2002 in Afghanistan and were “wow’ed” by the degree of sensory deprivation there.
  • Accounts of multiple detainees being subjected to water torture in ways that, according to an interrogator, were virtually “indistinguishable” from waterboarding and were unauthorized. Such accounts and prior reporting contradict Senate testimony by then-CIA Director Michael Hayden that only three detainees had ever been waterboarded.
  • Evidence that the CIA recognized that the “enhanced interrogation techniques” were unlawful. This can be inferred from, among other things, the CIA’s request for Justice Department guarantees not to prosecute such practices under federal laws prohibiting torture and CIA lawyers’ acknowledgment in a draft letter to the US attorney general that use of “enhanced interrogation techniques” would be barred by anti-torture laws.
  • Details about the various steps the CIA took to cover up possible criminal activity and obstruct the democratic process, including by making false claims to the Justice Department, the White House, and Congress about the scope, nature, successes, and necessity of the interrogation program.
  • Efforts the administration took to keep senior members of its National Security Council and Defense Department team in the dark about the program.

The Senate Summary also places these and other facts in the context of US decision-making and explains how the Bush administration came to adopt, authorize, and approve a government-sanctioned program of torture and enforced disappearance around the globe. It should be recognized, however, that although the Senate Summary provides important new details about the interrogation program, it remains an account told largely from the government’s perspective. The voices of the detainees who were subjected to torture are not included.

US Response to the Senate Summary

Evidence has long been available that US officials and agents violated US federal law, as well as international law, in connection with the CIA’s rendition, detention, and interrogation program.[124] Failure to prosecute torture is itself a violation of the Convention against Torture.[125] The release of the Senate Summary puts forward further evidence of wrongdoing that the US government is obligated under international law to investigate and appropriately prosecute, as well as provide redress to victims. However, the US has largely failed to act.

The Obama administration and others have put forward three broad reasons why the US need not and should not conduct criminal investigations into alleged abuses by US officials connected to the CIA interrogation program:

  • “An investigation was already conducted”: The Obama administration’s main argument to justify no action is that it already conducted an investigation into these events, pointing to the Durham inquiry.[126]
  • “Prosecutions would be politically harmful”: President Obama famously said after his election but before taking office that he “had a belief that we need to look forward as opposed to looking backwards.”[127] Commentators supporting this approach contend that prosecutions, brought largely against Bush-era officials, would invariably be divisive for the nation.[128]
  • “Prosecutions of those involved in the CIA program are not viable under US law”: Some observers have concluded that it may not be possible to charge those responsible for CIA abuses due to difficulties in proving intent, the expiration of statutes of limitations, and the applicability of other defenses.[129]

As mentioned above, international human rights law, notably the Convention against Torture and the International Covenant on Civil and Political Rights (ICCPR), obligates states to conduct impartial investigations and appropriately prosecute government officials responsible for torture and other cruel, inhuman, or degrading treatment or punishment.

The UN Committee against Torture has stated that a government’s obligation “to investigate, punish, and prevent further torture or ill-treatment in the future” should give “particular attention to the legal responsibility of both the direct perpetrators and officials in the chain of command, whether by acts of instigation, consent or acquiescence.”[130] The Committee considers it “essential” that the “responsibility of any superior officials, whether for direct instigation or encouragement of torture or ill-treatment or for consent or acquiescence therein, be fully investigated through competent, independent and impartial prosecutorial and judicial authorities.”[131]

The UN Human Rights Committee, the independent expert body that monitors state compliance with the ICCPR, has stated that where investigations uncover human rights violations, governments “must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant.” The Committee noted that impunity for arbitrary detention, torture and enforced disappearances, among other abuses, “may well be an important contributing element in the recurrence of the violations.”[132]

Neither the Durham inquiry with its narrow mandate and inadequate investigation, nor Obama’s decision to give priority to political considerations, overcome US obligations under international law to prosecute serious human rights violations.

In the following section we will discuss in detail the third reason proffered not to prosecute, that prosecutions of US officials for torture may not or may no longer be legally viable.

II. Bringing Criminal Prosecutions in the US

There are several federal offenses that senior US officials, as well as other US personnel, can be charged with concerning the CIA’s use of “enhanced interrogation techniques.” The following sections discuss the main charges that should be considered. Not discussed here are possible charges against those alleged to have made false claims to federal officials or government bodies, or to have obstructed justice.

Substance of Potential Charges

The key charges are torture, conspiracy to torture, and conspiracy as a stand-alone crime. Assault, sexual abuse, war crimes and murder, as well as conspiracy to commit some of these crimes, are separate offenses that prosecutors can also pursue.[133]

The level of culpability of those charged will vary widely depending on such factors as their involvement in authorizing and implementing or carrying out the program, whether their acts were authorized by the Justice Department, and whether mitigating circumstances apply. Charges could be brought for the actual completed offense or for attempting, or aiding and abetting, the offense.

Torture and Conspiracy to Torture

The US enacted what is referred to here as the Torture Statute to comply with its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention against Torture).[134] President Ronald Reagan had signed the Convention in 1988 and Congress enacted the Torture Statute in 1994 to comply with the Convention. Reagan said at the time the treaty was ratified that the US “will demonstrate unequivocally our desire to bring an end to the abhorrent practice of torture.”[135]

The Torture Statute provides criminal penalties for torture, conspiracy to commit torture, and attempts to commit torture occurring outside the territorial jurisdiction of the United States, regardless of the citizenship of the perpetrator or victim.[136]

The Torture Statute defines torture as “an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering … upon another person within his custody or physical control.”[137] To prosecute the crime of conspiracy to torture, prosecutors would have to prove the elements of conspiracy, as well as conspiracy to commit the offense of torture under the Torture Statute.

Legal Standards

Intent Required to Prove Torture

The definition of torture under the Convention against Torture requires that it be “intentionally inflicted.”[138] When ratifying the treaty, the US included an understanding containing similar wording—that in order for an act to constitute torture, it must be “specifically intended” to inflict severe physical or mental pain or suffering.[139] The US later included this “specifically intended” language in the Torture Statute.[140] The Senate Summary provides evidence of numerous instances in which US officials demonstrably sought to inflict severe pain or suffering. Even absent such specific intent, there are other serious crimes with which officials might be charged.

Federal courts have not interpreted the term “specifically intended” in reviewing a criminal case.[141] However, several US courts have interpreted the language in the immigration context in deciding whether individuals have valid challenges to removal because they face torture in the country to which they would be transferred.[142] In most of these cases courts have followed the lead of Auguste v. Ridge, a 2005 appellate court decision upholding an order of removal, which found that the “specifically intended” language in the Senate’s reservation requires a showing of the “specific intent” standard used in US criminal prosecutions.[143] The court noted that the specific intent standard is a “term of art” that is “well-known in American jurisprudence” meaning that “in order for an individual to have acted with specific intent, he must expressly intend to achieve the forbidden act.”[144]

But in the criminal context, the meaning of “specific intent” is anything but clear.[145] As a respected treatise on criminal law notes, courts apply the meaning of “specific intent” in a variety of ways.[146] Some courts suggest that specific intent requires a conscious desire, or “purpose” to produce the proscribed result—in this case severe pain and suffering—“whatever the likelihood of that result happening from the conduct.”[147] Other cases suggest that only knowledge or notice that an act will likely result in the proscribed outcome is necessary for “specific intent” and that the notice element will be satisfied by the reasonable foreseeability of the natural and probable consequences of one’s act.[148]

Some academics have challenged the notion that the Senate even intended to create a “specific intent” crime with its reservation to the treaty.[149] And, while the infamous Bybee Torture Memos of August 1, 2002 interpreted the Torture Act’s language as including a heightened specific intent requirement, less than two years later, the OLC would repudiate that interpretation (see below).[150] Regardless, even using the heightened standard articulated in Auguste, the available evidence indicates that the architects of the CIA Program specifically intended torture. Proof of that intent may be inferred from the total facts and circumstances of the case and does not require direct evidence of the accused’s mental state.[151] In fact, the process that led to the creation of the Torture Memos, and the memos themselves, are evidence of intent to torture.

Elements of Conspiracy

Senior US officials who devised and authorized the CIA program did not actually carry out torture themselves, but there is a strong case that they engaged in a conspiracy to torture.[152] In order to prove conspiracy under US law, there must be: (1) an agreement, (2) among two or more persons, (3) for an unlawful purpose, and (4) at least one overt act committed in furtherance of the conspiracy.[153] The overt act need not be illegal. It is also necessary to demonstrate that conspirators intended to agree to commit elements of the underlying offense, in this case torture.[154]

For conspiracy, the agreement can be inferred from direct or circumstantial evidence.[155] No proof of an express agreement is required. As one court noted, “criminal conspiracies are by their very nature clandestine, and a tacit agreement inferred from the surrounding circumstances can—and often does—suffice to ground a finding of willing participation.”[156]

The crime is frequently established as a result of inferences drawn from the acts of persons accused.[157] Relevant circumstantial evidence can include: “the joint appearance of defendants at transactions and negotiations in furtherance of the conspiracy; the relationship among codefendants; mutual representation of defendants to third parties; and other evidence suggesting unity of purpose or common design and understanding among conspirators to accomplish the objects of the conspiracy.”[158]

Individuals can also join a conspiracy if there is sufficient evidence they did so with some knowledge of the conspiracy’s “unlawful aims”—in this case torture—and with the intent of helping the conspiracy succeed.[159] In addition, under the doctrine of “conscious avoidance,” knowledge can be found where a defendant consciously avoided learning the fact while aware of the high probability of its existence, even if there is no evidence that the defendant possessed actual knowledge.[160]

Evidence of Conspiracy to Torture

There is substantial evidence supporting charges of conspiracy to torture against senior US officials and CIA contractors, including evidence that some individuals joined the conspiracy after it was first established.

Generating Legal Cover for Torture

After the US apprehension of Abu Zubaydah on March 28, 2002, someone identified as “CTC Legal” in the Senate Summary recommended that a psychologist working on contract in the CIA’s Office of Technical Services (OTS)—identified in the Senate Summary as Dr. Grayson Swigert—be used by the CIA to “provide real-time recommendations to overcome Abu Zubaydah’s resistance to interrogation.”[161] Not long thereafter Swigert, since identified as James Mitchell, and another psychologist identified in the Senate Summary as Dr. Harold Dunbar, since identified as Bruce Jessen, proposed that the CIA use 12 interrogation techniques on detainees.[162] These techniques included waterboarding, painful stress positions, walling, prolonged sleep deprivation, and cramped confinement among others— most of which were eventually approved for use by the OLC.[163] Mitchell and Jessen were ultimately hired as contractors by the CIA to develop the “enhanced interrogation technique” program, carry it out, and assess its effectiveness.[164]

Officials in the CIA and at the White House knew or should have known, from the moment these techniques were proposed, that they violated the Torture Statute. First, the techniques were derived from those used in the Defense Department’s Survival, Evasion, Resistance and Escape (SERE) program—a program designed to train US Special Forces to endure interrogation methods used by enemies who do not abide by the Geneva Conventions and the laws of war, which prohibit torture.[165] Second, the US Army’s field manual for intelligence investigations at the time prohibited many of the techniques the CIA was considering and ultimately approved using, such as “abnormal sleep deprivation” and “forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time,” and “food deprivation,” explicitly defining them as forms of torture.[166]

Indeed, the Senate Summary includes strong evidence that CIA and senior White House officials did know, practically from the moment that they were first being considered, that these techniques violated the Torture Statute. According to a Department of Justice Office of Professional Responsibility investigation (OPR investigation), the CIA, through its acting General Counsel John Rizzo, expressed concern about “criminal liability” under the Torture Statute and sought a guarantee from the Justice Department that employees would not be prosecuted for use of these techniques.[167] The Senate Summary also contains reference to a draft letter to the attorney general from “CTC Legal” —a likely reference to someone in the legal department of the CIA’s counterterrorism center, headed by Jonathan Fredman at the time[168] —asking for an advance guarantee not to prosecute any US employees or agents using “aggressive methods” of interrogation and acknowledging that these methods would otherwise be prohibited by the Torture Statute.[169] The letter was drafted in July 2002 and circulated internally at the CIA, as well as to Mitchell, though the Senate Summary says there are no records showing that it was ever sent.[170] The existence of the letter indicates that CIA legal advisers believed from the beginning that the techniques being proposed were likely illegal.

At a July 13, 2002 meeting where the guarantee not to prosecute was discussed, Michael Chertoff, head of the Justice Department Criminal Division, refused to provide such a guarantee.[171] At that same meeting, Daniel Levin, chief of staff to the FBI director at the time, also reportedly said that the FBI would not participate in any interrogations employing “enhanced interrogation techniques,” whether they were found legal or not and that the FBI would not further discuss the matter.[172] Also present at the meeting was Rizzo; “CTC Legal”; legal advisor to the National Security Council John Bellinger; and Department of Justice OLC attorneys, including John Yoo.[173]

At that point, senior White House officials, including Counsel to Vice President David Addington and White House Counsel Alberto Gonzales; CIA officials, including Rizzo; and the OLC’s Yoo engaged in a series of meetings and consultations in an apparent effort to generate novel legal cover for interrogation techniques that the CIA and others knew likely constituted torture. Eventually, these meetings led to the production of the first official memos, both issued on August 1, 2002, purporting to authorize the use of what the CIA referred to as “enhanced interrogation techniques.”

Evidence of the process by which the Bybee Memos were developed includes:

At some point after Abu Zubaydah’s apprehension, the CIA asked the OLC for an opinion as to the legality of the proposed interrogation techniques.[174] Attorney General John Ashcroft instructed Yoo to draft the opinion.[175] Yoo began doing so after an April 16, 2002 meeting with unnamed individuals at the National Security Council.[176] Bellinger, having been told by CIA attorneys that they wanted to use “aggressive” interrogation techniques on Abu Zubaydah and that they wanted a guarantee that the Justice Department would not prosecute (known as a “declination of prosecution”), facilitated contact and meetings among the CIA, OLC, and Justice Department Criminal Division.[177] He also reportedly told Yoo that access to the interrogation program was extremely limited and that the State Department should not be informed.[178]

  • Sometime around July 8, 2002, as noted above, “CTC Legal” apparently drafted a letter, identified as a “draft” in the summary, to the attorney general asking that his office provide a guarantee not to prosecute in advance to any US employees or personnel who carry out interrogations on Abu Zubaydah that otherwise might subject them to criminal prosecution. The letter acknowledged that use of the “aggressive methods” would otherwise be prohibited by the Torture Statute “apart from potential reliance upon the doctrines of necessity or of self-defense.”[179] The letter was circulated internally at the CIA but there are no records to indicate it was provided to the attorney general.[180]
  • On July 12, 2002, Yoo met at the White House Counsel’s office with Gonzales and likely Addington[181] about his memo, which Yoo reportedly referred to internally as the “bad things opinion.”[182] At this point Yoo’s draft memo focused on the definition of torture, the ratification and negotiating history of the Torture Statute, and an analysis of what had been considered torture in prior cases.[183] It did not contain any arguments about whether the statute required specific intent to torture as an element; nor did it address any potential defenses to the statute in the case of prosecution.[184]
  • On July 13, 2002, the meeting where Chertoff refused to provide a guarantee not to prosecute and Levin said the FBI would not participate in interrogations, took place. After this, the OLC memos seem to have become more important to the CIA and senior officials at the White House, as they would need to rely upon them to justify the legality of the techniques.
  • The same day as the July 13 meeting, at Rizzo’s request, Yoo drafted and two days later sent Rizzo a summary of the elements of the Torture Statute and how the specific intent required under it could be negated.[185] In a separate email to Rizzo on July 15, likely in follow-up to the letter, Yoo also suggested to Rizzo “one other thing to include … a footnote saying that we do not address because not asked” the following:(1) how Commander-in-Chief power affects enforcement of the Torture Statute; and (2) possible defenses to violations of the Torture Statute.[186]
  • The next day, July 16, Yoo met yet again with Gonzales and likely Addington.[187] After this meeting, Yoo began adding new sections to the memo on the Commander-in-Chief power and possible defenses to violations of the Torture Statute.[188] He also added in arguments about how specific intent could be negated.[189] A colleague of Yoo’s, Deputy Assistant Attorney General Patrick Philbin, noticed that the new sections were added and suggested they were “superfluous” and should be removed.[190] Yoo responded: “They want it in there.”[191] The arguments remained in the analysis.[192]
  • Yoo provided regular briefings about the draft memorandums to Attorney General Ashcroft. He explained to him that the Justice Department Criminal Division had refused to provide the advance declination. At some point Ashcroft asked if it would be possible to issue advance pardons. Yoo informed Ashcroft it would not.[193]
  • On July 17, CIA director George Tenet met with National Security Adviser Condoleezza Rice, who told him that the CIA could proceed with its proposed interrogation of Abu Zubaydah, subject to the CIA providing more details about the techniques, an explanation as to why they would not cause lasting irreparable harm to Zubaydah, and a determination of legality by the OLC.[194]
  • The CIA gathered the requested information over the course of the following week.[195] The CIA asked Mitchell and Jessen about the possible psychological impact of using the waterboard or proposed “mock burial” techniques on Abu Zubaydah. Through a cable from the CIA Chief of Base, they responded that while SERE techniques are applied on volunteer students in a harmless way with no measurable psychological impact, they could not guarantee the same with Abu Zubaydah. While interrogation personnel will “make every effort” to ensure Abu Zubaydah is not “permanently physically or mentally harmed … we should not say … that there is no risk.”[196]
  • On July 24, the OLC orally advised the CIA that Attorney General Ashcroft had concluded that, with the exception of waterboarding, the proposed techniques—including the attention grasp, walling, the facial hold, the facial slap (insult slap), cramped confinement, wall standing, stress positions, sleep deprivation, use of diapers, and use of insects—could be used and were lawful.[197]
  • In apparent response to Rice’s request, Defense Department General Counsel William Haynes obtained two memos from JPRA staff.[198] The first dated July 25, 2002 listed lesson plans on “exploitation and interrogation” based on what had been effective against “Americans” in the past.[199] A second, dated July 26, 2002 had three attachments. The first included a list of techniques used to train SERE students to resist abusive interrogations; the second included operational risks, associated with the use of SERE-techniques (such as the danger of obtaining false information and that a detainee’s resistance will increase), which were described interchangeably throughout the memo as “physical and psychological duress” and “torture;” and the third included information on the impact of SERE techniques used on SERE students which was described as “minimal”—though this was attributed to the voluntary nature of the program and extensive steps taken to ensure that the students suffered no long term harm.[200] On July 26, Ashcroft orally approved the use of waterboarding.[201]
  • Sometime around July 26, and perhaps the same day, the CIA informed OLC that it wanted the approval in writing.[202] On July 26, the White House also told Yoo that they wanted the memos done “as soon as possible.”[203] Yoo then incorporated comments from Gonzalez, Chertoff, and Philbin into his drafts.[204]
  • The final drafts of the two Bybee Memos, authored by Yoo, were issued on August 1, 2002. The second memo, addressed to Rizzo, invoked CIA consultations with individuals with extensive experience in the use of SERE techniques in justifying its claim that no prolonged mental harm would result from use of the “enhanced interrogation” methods.[205]

This sequence of meetings, correspondence, and events strongly suggest the involvement of senior White House and CIA officials in the production and content of the Bybee Memos. The OPR investigation came to a similar conclusion: “In view of this sequence of events, we believe it is likely that the sections [of the “August 1, 2002 Memos”] were added because some number of attendees at the July 16, 2002 meeting requested the additions, perhaps because the Criminal Division had refused to issue any advance declinations.”[206] The fact that the CIA’s (CTC Legal’s) July 8 draft letter recognized the importance of “potential reliance upon the doctrines of necessity or of self-defense” to avoid liability under the Torture Statute strengthens this conclusion.

Ultimately, the OPR investigation found that Yoo violated his duty to exercise independent legal judgment, committing “intentional professional misconduct,” and that Bybee acted in “reckless disregard” of his obligations to provide independent legal analysis.[207] The OPR investigation called for both lawyers to be referred to their respective state bar associations for discipline but in 2010 Associate Deputy Attorney General David Margolis rejected this recommendation.[208]

The meetings, correspondence, and events also provide evidence relevant to establishing the elements of a criminal conspiracy in that they are evidence of an agreement, among two or more persons (the senior administration officials involved in the meetings and authorizations above) for an unlawful purpose—the use of interrogation techniques that, individually, and certainly when combined as course of conduct, as discussed in more detail below, amounted to torture. Many of the individuals involved also appear to have engaged in overt acts in furtherance of the conspiracy—such as facilitating contact between parties that could approve use of the techniques, ensuring that relevant government officials who might object were not informed of the techniques, orally approving use of the techniques, drafting the memos or providing input for the content of the memos, approving the memos or techniques, giving orders in accordance with use of the techniques, and hiring psychologists Mitchell and Jessen to implement the program.[209]

Based on the information outlined above, the following individuals should be investigated for their role in the conspiracy: Acting CIA General Counsel John Rizzo, Head of the Justice Department OLC Jay Bybee, OLC Deputy Assistant Attorney General John Yoo, the person identified as “CTC Legal” in the Senate Summary, CIA Director George Tenet, National Security Legal Advisor John Bellinger, Attorney General John Ashcroft, White House Counsel Legal Advisor Alberto Gonzales, Counsel to the Vice President David Addington, Deputy White House Counsel Timothy Flanigan, and National Security Advisor Condoleezza Rice.

President Bush and Vice President Cheney should also be investigated for their roles in approving torture. The Senate Summary indicates that Bush was not briefed on the CIA program until April 8, 2006 and that at that time he “expressed discomfort” at the image of a detainee chained, diapered, and forced to go to the bathroom on himself.[210] However, Bush admits in his autobiography that he discussed the program with Tenet in 2002, prior to application of the first techniques, and personally approved them.[211] Further, a still-classified Memorandum of Notification for covert action, signed by Bush on September 17, 2001, provided the purported basis for authorization of the CIA program, though apparently not for the use of coercive interrogations.[212] More about Cheney’s role after the “Torture Memos” were issued is elaborated on below, but media reports indicate that he, together with Addington, was the principal political force pressing OLC lawyers to justify the use of coercive interrogation methods.[213] As Cheney notably said during a media interview in which he defended the actions of Yoo and other OLC lawyers, the lawyers did “what we asked them to do.”[214]

Mitchell and Jessen should be investigated for their alleged direct participation in torture, often applied in ways beyond how it was authorized, but also for their role in the initial conspiracy to torture as well. As the Senate Summary points out, it was Mitchell who first proposed the use of 12 specific techniques derived from the US Military’s SERE school on Abu Zubaydah (see above) to the CIA.[215] Both Jessen and Mitchell had been psychologists with the US Air Force SERE school so they would have known the school exposed trainees to interrogation methods that would violate the Geneva Conventions and the laws of war.[216] “CTC Legal’s” draft letter to Ashcroft asking for a guarantee to prosecute was circulated to Mitchell.[217] Also in July, Mitchell proposed the CIA enter into a contract with Jessen to aid the CIA in its interrogation process.[218] At some point, Mitchell and Jessen, perhaps not until 2005, formed the company Mitchell Jessen & Associates along with other former JPRA officials and SERE school employees or contractors.[219] They received $81 million on their $180 million contract with the CIA to carry out the program before it was terminated in 2009.[220] The contract was to assess detainees’ fitness for the use of “enhanced interrogation techniques,” conduct interrogations, and to assess the effectiveness of the techniques as applied.[221]

In late July as Yoo was finishing up the August 1, 2002 memos, he received a psychological assessment of Abu Zubaydah and a report from CIA psychologists asserting that the use of harsh interrogation techniques in SERE training had resulted in no adverse long-term effects.[222] The August 1, 2002 memo (Bybee II Memo) to John Rizzo relied in part upon the psychological assessment of Abu Zubaydah sent to Yoo on July 24, 2002.[223] Whether Mitchell, Jessen, or anyone from the company played a role in making these assessments should be investigated. The author of the July 24, 2002 psychological assessment is not clear but the Senate Summary indicates that Mitchell was present during interrogation sessions with Abu Zubaydah and likely produced a psychological assessment of him.[224] The Senate Summary documents concerns raised in CIA cables about a conflict of interest inherent in having Mitchell and Jessen in charge of conducting psychological assessments of detainees, the appropriateness of the application of “enhanced interrogation techniques” on them, as well as the effectiveness of the techniques.[225] The CIA admits the multiple roles of Mitchell and Jessen raised conflict of interest concerns, especially early on in the program.[226]

Defining “Humane Treatment”

Other government documents, related to later stages of the CIA program, provide further evidence that those named above were part of the conspiracy, and that others joined the conspiracy at a later date. Specifically, there is evidence in the public record indicating that senior US officials or government agents, both had knowledge of the “unlawful aims” of the conspiracy—using torture to “enhance” interrogations—or made a deliberate effort to avoid knowing that torture was being used.

In late 2002, CIA officials appear to have grown concerned that President Bush and other senior officials were not fully behind their use of the “enhanced interrogation techniques,” and sought reassurance that they had approval to proceed.[227]

The concern stemmed from a memo that Bush issued on February 7, 2002, declaring that the Geneva Conventions did not apply to Taliban and Al-Qaeda detainees but that the US armed forces would nevertheless treat detainees “humanely.”[228] The CIA’s concerns were compounded by various communications it received about detainee treatment after it began using the OLC-approved techniques. As a result, then-CIA General Counsel Scott Muller decided to draft a “Memorandum for the Record,” dated February 12, 2003, memorializing conversations he had with senior members of the administration confirming that the February 7, 2002 memo did not impose new requirements on the CIA to treat detainees “humanely.”[229] The memo mentioned conversations about a letter from Secretary of Defense Donald Rumsfeld addressed to George Tenet, and received by the CIA on November 26, 2002, raising the requirement of humane treatment articulated in the president’s February 7, 2002 memo in relation to the transfer of a detainee from the Defense Department to CIA custody.[230] It also mentioned conversations between Muller, Gonzales, Addington, Haynes, and Yoo, about a December 27, 2002 letter from Human Rights Watch raising concern about allegations of US abuse of detainees.[231]

In the memo, Muller confirmed that on December 13, 2002, Yoo told him that the February 7, 2002 memo had been “deliberately limited” so it would only be binding on US Armed Forces, not the CIA.[232] Additionally, in two conversations John Bellinger told him that the types of interrogation techniques authorized by the attorney general had been “extensively discussed” and were “consistent with the President’s February 7, 2002 memo.” Muller also noted that at a January 13, 2003 meeting attended by Muller, Gonzales, Addington, Yoo, and Haynes about the Human Rights Watch December 27, 2002 letter, Addington, Gonzalez and Yoo confirmed that the president’s memo was only applicable to the armed forces.[233]

At another meeting three days later, on January 16, 2003, Muller said that there was “an arguable inconsistency between what the CIA was authorized to do and what at least some in the international community might expect in light of the Administration’s public statements about ‘humane treatment’ of detainees on and after the February memo.”[234] At that meeting, attended by Muller, Rice, Rumsfeld, Haynes, Secretary of State Collin Powell, Cheney, and Tenet, the CIA’s past and ongoing use of approved interrogation techniques was “reaffirmed and in no way drawn into question,” according to the Muller memo.[235]

The reassurance provided to the CIA did not put the matter to rest. On June 25, 2003, Haynes wrote to Senator Patrick Leahy, in response to a letter Leahy wrote to Haynes with concerns about detainee treatment, saying that it is US policy to treat all detainees in a manner consistent with its obligations under the Convention against Torture as well as the Constitution’s ban on cruel, inhuman or degrading treatment or punishment.[236] On June 26, 2003, the White House issued a press release in support of International Support for Victims of Torture Day condemning “cruel” treatment of detainees; and on June 27, 2003, a White House spokesman was quoted as saying that the US government was treating detainees “humanely.”[237] All this prompted Tenet to write a letter to National Security Advisor Rice reminding her that the CIA had previously objected to White House statements that all US government detainees were being treated “humanely” and asked that the administration “reaffirm its commitment” to use of the CIA’s enhanced interrogation program.[238]

These statements and actions were essentially admissions that, at minimum, the CIA was not treating detainees humanely. They also undermine the credibility of claims that these senior US officials were confident that the authorized techniques did not amount to torture. Additionally, they support the view that at least some officials consciously avoided asking whether the techniques were unlawful and may bring CIA General Counsel Muller, Rumsfeld, Haynes, and possibly Powell, into the ambit of the conspiracy.[239] By January 9 2003, Navy General Counsel Alberto Mora had already informed Rumsfeld and Haynes that many of the same techniques were illegal and demanded orders approving them be rescinded (see above).[240] Documentation from a later July 29, 2003 meeting show Bellinger stating, in response to a question from Vice President Dick Cheney, that there was “no requirement” for a full meeting of the NSC principals to discuss details of the CIA program, which was referred to in the documentation as “controversial.”[241] Such a full principals meeting would include Rumsfeld, Powell and Bush. Also present at the meeting were Rice, Tenet, Muller, Ashcroft, Acting Assistant Attorney General OLC Patrick Philbin, Gonzales, and Cheney. During the meeting, Cheney, Rice, Ashcroft and Tenet all agreed that such full principals meeting to “review and reaffirm” the CIA program was not “necessary or advisable.”[242] Gonzales stated that he was certain Rumsfeld, through his General Counsel William Haynes, was already clearly aware of the substance of the program. Muller and Bellinger agreed.[243] Rice, however, appears to have changed her mind and on August 4, 2003 had Bellinger call Muller and suggest that Powell and Rumsfeld should be briefed before a specific date that is redacted from the memo.[244]

Reauthorization of the Torture Program

In November 2002, a detainee died in CIA custody and the CIA’s Office of Inspector General issued its scathing report on May 7, 2004 about both the use of techniques in an unauthorized manner, and the use of techniques that were never authorized. (“CIA OIG Report”).[245] After the CIA OIG Report, CIA director Tenet suspended both the use of what were called “standard” interrogation techniques, as well as “enhanced interrogation techniques” pending a legal and policy review.[246] The program was later reauthorized in a process that spanned the terms of three CIA directors: Tenet who resigned in June 2004, John McLaughlin who replaced him as acting CIA director until September 2004, and Porter Goss who took over from McLaughlin in September 2004.[247] Daniel Levin, in 2004, and Steven Bradbury, in 2005, wrote memos that reauthorized the program, replacing the one that had been withdrawn by Goldsmith and drafting new ones that authorized additional techniques. These memos rejected the legal reasoning of the prior “Bybee Memos” but then authorized the same and even additional conduct using different legal reasoning.

Prior to re-authorization in 2005, according to the Senate Summary, the CIA provided the Justice Department with numerous descriptions of the interrogation techniques that were false and inconsistent with how the CIA had actually been applying them, the physical and psychological impact of the techniques on detainees, the threat posed by those to whom the techniques were being applied, and their degree of effectiveness.[248] For example, the CIA represented that standing sleep deprivation would be discontinued if it resulted in significant swelling of the lower extremities (edema) but in practice this technique “was repeatedly not stopped when edema occurred.”[249] Additionally, the CIA provided false information about the use of light and cold temperatures on detainees, the claim that interrogations would stop when detainees experienced hallucinations, and a number of other matters.[250] The Senate Summary does not clearly identify who exactly is responsible for supplying this false information, identifying a number of CIA sources, and indicates that more information is available in the still classified sections of the complete report.

There is also information in the Senate Summary that Acting Assistant Attorney General for OLC Steven Bradbury was looking for statements from the CIA that he could use to justify the techniques in his new memo. For example, just days before Bradbury issued new memos on May 10, 2005 re-authorizing the program, he sent a letter to the CIA asking if medical monitoring and other safeguards in place “will effectively avoid severe physical pain or suffering for detainees.”[251] The CIA’s Office of Medical Services (OMS) had expressed discomfort with these types of questions just a few weeks earlier when they received a draft of the OLC authorizing memo for review:

Simply put, OMS is not in the business of saying what is acceptable in causing discomfort to other human beings, and will not take on that burden…. OMS did not review or vet these techniques prior to their introduction, but rather came into this program with the understanding of your office and DOJ [Department of Justice] that they were already determined as legal, permitted and safe. We see this current iteration [of the OLC memorandum] as a reversal of that sequence, and a relocation of those decisions to OMS. If this is the case, that OMS has now the responsibility for determining a procedure’s legality through its determination of safety, then we will need to review all procedures in that light given this new responsibility.[252]

Nevertheless, OMS later responded to Bradbury that the CIA’s program “has effectively avoided severe physical pain and suffering, and should continue to do so. Application of the thirteen techniques has not to date resulted in any severe or permanent physical injury (or any injury other than transient bruising), and we do not expect this to change.”[253]

CIA officials who supplied the false information can be considered to have joined the conspiracy. The overt acts are that they supplied the false facts, were aware of the program’s unlawful aims, the infliction of severe pain and suffering, and did so with the intent of the conspiracy to torture succeeding. Similarly, by drafting and issuing new legal memos that reauthorized the same and even additional “enhanced interrogation techniques,” especially in light of the controversy around them and problems with the program reported by the CIA OIG, both Levin and Bradbury can be seen as having undertaken overt acts—drafting of the new memos—with knowledge of the conspiracy’s unlawful aims and with the intent that the use of these techniques continue and thus that the conspiracy succeed.

Evidence against Other Officials in Connection with the Conspiracy

Other individuals who—due to their positions or reported actions—should be included in an investigation in connection with the conspiracy include:

  • Jose Rodriguez, Cofer Black’s successor, who oversaw operation of the CIA’s program from May 2002-November 2004 and was responsible for ordering the destruction of 92 videotapes documenting the CIA’s use of “enhanced interrogation techniques,” which included waterboarding sessions, over the objections of senior officials at the White House and the CIA, as well as Congress.[254] Later in his memoirs, Rodriguez describes his order to destroy the tapes as “just getting rid of some ugly visuals.”[255]
  • The CIA’s current deputy general counsel for operations, Robert Eatinger, who is reportedly mentioned by name more than 1,600 times in the Senate’s full report, though his name did not appear in the Senate Summary.[256] Eatinger was a lawyer in the CIA’s Counterterrorism Center when the center managed and carried out the detention and interrogation program, and from mid-2004 until official termination of the program in January 2009, he was the unit’s chief lawyer.[257] He reportedly provided legal advice that Rodriguez had legal authority to destroy the tapes and that the destruction would violate no laws.[258] He is also accused of providing inaccurate information to the OLC about the CIA program upon which the OLC relied when issuing authorizations for CIA action.[259]
  • Cofer Black, head of the CIA’s counterterrorism center from June 1999 until the end of 2002, appeared to play a key role in implementing the program as well, though his exact role is not necessarily clear from the public record. In October 2008, CIA Director Tenet delegated responsibility to him to manage the capture and detention authorities provided in the MON.[260] Black famously said during testimony before Congress on September 26, 2002: “[T]here was ‘before’ 9/11 and ‘after’ 9/11. After 9/11 the gloves come off.”[261]
  • Someone identified as “CTC legal” in the Senate Summary. “CTC Legal” first proposed to the CIA in April 2002 that they use James Mitchell as a CIA consultant in interrogations and the use of aggressive interrogation techniques.[262] “CTC Legal” also was the author of a July 8, 2002 letter that acknowledged the illegality of the CIA’s proposed enhanced interrogation techniques.[263] This individual was part of a CIA legal team present at the July 13, 2002 meeting, which included Rizzo and other unnamed CIA lawyers, who proposed the use of “enhanced interrogation techniques” and sought a declination from the Justice Department’s Criminal Division.[264] “CTC Legal” also drafted a memo in June 2003 when the CIA was looking at reaffirmation of the CIA program stating that one of the August 1, 2002 memos provided “safe harbor” for the CIA’s use of “enhanced interrogation techniques.”[265] “CTC Legal” was also present, along with Alfreda Bikowski, during “aggressive” interrogations of Abu Zubaydah that included the use of waterboarding.[266]

OLC Memos as Evidence of Conspiracy and Intent to Torture

Beyond CIA efforts to obtain what would be preemptive immunity from prosecution for using torture, the strained legal reasoning of the “Bybee Memos” themselves also suggests that those involved knew they were creating “authorization” as a cover for what would otherwise almost certainly be deemed illegal acts.

The memos themselves were deeply flawed from a legal perspective and have been widely discredited.[267] The Bybee I Memo invented definitional requirements for torture that went far beyond any existing standard by, for example, drawing on irrelevant health benefits statutes to argue that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”[268] Mental pain or suffering would only amount to torture if it results in “significant psychological harm of significant duration, e.g., lasting for months or even years.”[269]

The Bybee I Memo advised that the claimed specific intent requirement in the Torture Statute could be negated by a good faith belief that the acts undertaken would not cause prolonged mental harm. A defendant in a criminal case could demonstrate this good faith belief by showing for example that he surveyed the professional literature, consulted with experts, or reviewed evidence gained from past experience.[270] The memo also advised that if an interrogator were to harm a detainee during use of “enhanced interrogation techniques,” he would be doing so to prevent further attacks on the US and therefore would be justified by the Commander-in-Chief’s constitutional authority to prevent the nation from attack.[271] The assertion ignores well-established US Supreme Court precedent making clear that the executive branch does not have unbridled authority in the conduct foreign affairs—it is bound by congressional statues and judicial decisions.[272] Torture is prohibited by US and international human rights and humanitarian law at all times and for all reasons. There is no exception for war or public emergencies.[273]

The Justice Department withdrew the Bybee I Memo in June 2004, in the wake of the Abu Ghraib scandal and just days after its contents were leaked to the media.[274] Jack Goldsmith, who replaced Yoo, headed the OLC from October 2003 to June 2004, and was largely responsible for getting the Bybee I Memo withdrawn, said the memo was “riddled with error” and a “one-sided effort to eliminate any hurdles posed by the torture law.”[275] On June 4, 2004, CIA Director George Tenet suspended the use of both “enhanced” and “standard” techniques pending policy and legal review.[276] New legal memos issued later to replace the Bybee I Memo acknowledged that the prior legal reasoning was wrong.[277]

According to the replacement memo, “Because the discussion concerning the President’s Commander-in-Chief power and potential defenses to liability was—and remains—unnecessary, it has been eliminated… Consideration of the bounds of any such authority would be ‘inconsistent’ with the President’s unequivocal directive not to engage in torture.”[278]

Specifically concerning the claim that harm to a detainee might be justified in order to prevent the nation from an attack, the replacement memo stated that “[t]here is no exception under the statute permitting torture to be used for a ‘good reason.’ Thus, a defendant’s motive (to protect national security, for example) is not relevant to the question of whether he acted with the requisite specific intent under the statute.”[279] On the level of pain required to meet the definition of torture, the replacement memo reads: “[W]e do not believe Congress intended only to reach conduct involving excruciating and agonizing pain or suffering. …Thus, we do not agree with the August 2002 Memorandum.”[280]

Though the replacement memos—one issued on December 30, 2004[281] (“Levin Replacement Memo”) and several others issued in 2005[282] (“Bradbury Memos”)—attempt to apply new legal reasoning, they continued to authorize the same and even additional conduct that amounts to torture or other ill-treatment.[283] For example, they continued to authorize waterboarding. Waterboarding is essentially the same as other forms of water torture that have been prosecuted in US courts,[284] as well as military courts and tribunals in the past.[285] President Barack Obama, former Attorney General Eric Holder, Attorney General Loretta Lynch, have all called waterboarding torture.[286] “The position taken by the government lawyers in these legal memoranda amount to counseling a client as to how to get away with violating the law,” said John Gibbons, former chief judge of the US Court of Appeals for the Third Circuit, after the memos had been released.[287]

The language used in the 2005 replacement memos themselves, drafted by then Deputy Assistant Attorney General Steven Bradbury, acknowledges the severity and harshness of the techniques while at the same time purporting to authorize them. One memo states that use of the waterboard does pose a “small risk” of certain “potentially significant medical problems” such as vomiting and aspirating emesis, aspirating water—which might lead to pneumonia—or “spasms in the larynx that would prevent [a detainee] from breathing.” In the event of such spasms, “a qualified physician would be present to intervene and perform a tracheotomy if necessary.”[288] The memo authorizes up to 180 hours (7.5 days) of sleep deprivation, which was often done by forcing detainees to stand nude and diapered during that period.[289] Though the memo acknowledges this may cause “edema,” (swelling caused by fluid gathering in the tissues)[290] it suggests that in this case, the detainee can be restrained in a way that will continue to deprive him of sleep while lying prone until the condition subsides and then resume standing.[291] Also, though individuals will likely experience “some discomfort,” “distress” and “fatigue,” and this can also cause “impairment to coordinated body movement, difficulty with speech, nausea, and blurred vision,” this would not amount to torture so long as the individuals are monitored and their diapers checked regularly for skin irritation, the memo read.[292] It also may result in hallucinations, the memo reads, which could result in “profound” disruption of the senses and thus be defined as torture, but because it would not be “calculated” to achieve that result, it would not satisfy the requirements of the torture statute.[293]

Further, a separate memo for the first time authorized use of the techniques in combination (combinations of practices such as diapering, nudity, walling, stress positions, and water dousing, among others).[294] Some of these specific techniques have been referred to as amounting to torture by US courts.[295] The US has also denounced many of these techniques as torture when practiced by other countries.[296] Additionally, the Army Field Manual on Intelligence Interrogation in effect when the OLC memos were issued, prohibits torture and lists as an example of physical torture: “forcing an individual to stand, sit or kneel in abnormal positions for prolonged periods of time,” and “food deprivation.”[297] It also lists “abnormal sleep deprivation,” as an example of mental torture.[298]

Finally, the new memos were issued only after many of the most egregious abuses took place.[299] Even if they had been based on sound legal analysis, they could not have provided retroactive authorization.

Evidence of Torture: Conduct Beyond What Was Authorized

Both international human rights and humanitarian law prohibit torture and other forms of ill-treatment, standards that CIA program practices violated. But even if one were to discount those international requirements, the CIA program went beyond the techniques that were authorized and the claimed protections from legal liability set out in the Torture Memos.[300]

First, the CIA used enhanced interrogation techniques on Abu Zubaydah before OLC issued the Bybee Memos. Documents released in April 2010 in response to Freedom of Information Act requests from the ACLU,[301] revealed that the CIA subjected Abu Zubaydah to sleep deprivation beyond 48 hours at some point after his capture but before April 2002.[302] The CIA claims it did this only after “consulting” with “NSC and DOJ” and getting approval to use sleep deprivation for between 24-48 hours. How many hours of sleep deprivation beyond 48 Abu Zubaydah was subjected to, or how many times during this period, is not made clear from the document, but it does say that due to a “misunderstanding” the 24 to 48-hour time frame was exceeded.[303]

Additionally, the Bybee II Memo to Rizzo only approved the use of specific techniques on Zubaydah for certain purposes and under certain conditions.[304] “If these facts change, this advice would not necessarily apply,” the memo read.[305] The Senate Summary is filled with examples of changed facts. For one, the CIA applied the authorizations for Zubaydah to other detainees without seeking further formal approval.[306] After the Senate Summary was released, John Yoo said that the initial OLC authorization for the use of “enhanced interrogation techniques” was meant to only apply to Abu Zubaydah.[307] It was not until almost a year later, on July 29, 2003, that CIA records indicate, according to the Senate Summary, that the attorney general stated at a meeting that the legal principles of the August 1, 2002 memorandum applied to other detainees.[308]

After Jack Goldsmith took over as head of the OLC after Yoo’s departure, he read the CIA OIG Report and learned that the CIA had been using the Bybee II memo to justify the use of “enhanced interrogation techniques” on other detainees. He subsequently wrote a letter to the CIA admonishing them for this practice. “Our initial review of the Inspector General’s Report,” Goldsmith wrote to Muller on May 27, 2004, “raises the possibility that, at least in some instances and particularly early in the program, the actual practice may not have been congruent with all of these assumptions and limitations [in the August 1, 2002 memo to Rizzo].”[309] While he acknowledged that at some point it appeared that the OLC had agreed that the legal principles articulated in the August 1, 2002 memo could apply to other detainees, he “strongly recommended” that the CIA suspend use of waterboarding and review steps taken to ensure that in actual practice any use of CIA techniques “adheres closely to the assumptions and limitations in the August 2002 opinion.”[310] After Goldsmith’s resignation from the OLC, subsequent OLC staff appear to have produced individualized memoranda for detainees subject to CIA “enhanced interrogation techniques.”[311]

In addition, the Senate Summary and other documents show that the use of the interrogation techniques specifically in combination does not appear to have been specifically approved by OLC memo on any detainee other than Abu Zubaydah, and even then in a cursory fashion, until May 10, 2005.[312] Failure to have done this combination analysis at the outset is one of many a serious flaws of the initial August 1, 2002 memos. For one, US courts tend to look at a course of conduct rather than each individual method of abuse when determining whether it amounts to torture.[313] But for another analyzing techniques individually and in isolation ignores the cumulative impact they will have on an individual victim, especially when combined with the conditions of confinement in CIA detention facilities, conditions not even discussed or considered, in the August 1, 2002 memos. These included complete isolation for long periods of time, total darkness, unsanitary conditions, extreme cold temperatures, and constant loud noise. Moreover, the CIA also does not appear to have obtained advice from the OLC that techniques the CIA referred to as “water dousing,” “nudity,” “dietary manipulation,” and use of the “abdominal slap” would not violate the Torture Statute until August 26, 2004, and even then, the “advice” did not constitute official OLC approval.[314] Yet there is evidence that the CIA used these techniques, and in combination, before August 26, 2004.

Even before the Senate Summary was released, the CIA OIG Report documented a number of interrogation techniques allegedly used by the CIA that were not authorized. Though much of the relevant section of the report remains classified, included in the declassified portion were allegations, and in some cases confirmations, of the following: use of pressure points to bring about near unconsciousness; mock executions; other threats; use of a stiff brush; creating abrasions; stepping on a detainee’s ankles while shackled; use of cold temperatures; rough or hard “takedown”[315]; and unauthorized so called “water dousing” or waterboarding.[316] In one draft of the CIA OIG Report cited in the Senate Summary, the OIG concluded that in a number of cases, CIA interrogations went “well beyond what was articulated in the written DOJ legal opinion of August 1, 2002.”[317]

Waterboarding and Water Dousing

The CIA OIG Report said “water dousing”[318] had been used since early 2003.[319] But the technique does not appear to have been officially approved until much later.[320] According to the Senate Summary, water dousing was not even designated by the CIA as a “standard” interrogation technique[321] until June 2003 and was later re-categorized by the CIA in 2004 as an “enhanced interrogation technique.”[322] It appears that it was not until August 26, 2004 that the CIA for the first time got official “advice” from OLC that the technique, if used in the way described, would not violate the Torture Statute.[323]

Even then, OLC made clear that the“advice” did “not constitute the Department of Justice’s policy approval for the use of the technique.”[324] The OLC apparently did not provide official approval for the use of water dousing as an “enhanced interrogation technique” until May 2005.[325]

Nevertheless, the CIA used it in various ways beginning in early 2003.[326] The Senate Summary documents use of “water dousing” on several detainees in ways that approximated “waterboarding” in April 2003.[327] At detention cite Cobalt, known to be in Afghanistan,[328] where the CIA held most of its detainees,[329] CIA operatives would hold the detainee down while he was naked on a tarp on the floor with the tarp pulled around him to form a makeshift tub while cold or refrigerated water was poured on him.[330] Other detainees were hosed down repeatedly while they were shackled naked, in the standing sleep deprivation position.[331] As approved in 2005, interrogators were not supposed to allow any water to get into a detainee’s nose or mouth.[332] However, this was not the way the water dousing was applied on many occasions.[333] In other cases detainees were completely submerged in tubs of water that was not just cold but filled with ice or “icy.”[334]

The CIA also “water doused” an unknown number of detainees while on a waterboard.[335] Although this part of the CIA’s program is still classified, the Senate Summary says that the CIA used the technique “extensively” on a number of detainees without seeking or obtaining prior authorization.[336] The practice prompted concern from at least one CIA interrogator who said: “I have serious reservations about watering [the detainees] in a prone position … I think it goes beyond dousing and the effect, to the recipient, could be indistinguishable from the water board … if it is continued [it] may lead to problems for us.”[337]

In 2008, then-CIA director Michael Hayden told the US Senate that the CIA had only used waterboarding on three detainees.[338] But a report by Human Rights Watch, corroborated by the Senate Summary, provides strong evidence that the CIA waterboarded at least one other CIA detainee.[339] Later media reports provide evidence the CIA used water on other detainees in other ways that induced the sensation of suffocation or drowning.[340] As noted above, the Senate Summary documents the CIA’s use of water to inflict torture on detainees in ways that would often make it indistinguishable from waterboarding and on many more than three detainees.[341] Additionally, the Senate Summary makes clear that even in the cases of the three detainees for which the CIA purports to have had authorization to waterboard, the way in which the CIA used the technique went far beyond what was authorized.[342] During SERE training (see below) from which waterboarding was derived, most trainees experienced the technique only once or twice, knew that it would last a short period of time, and knew that they would not be significantly harmed by the training.[343] During CIA interrogations, detainees however were subjected to repeated applications over prolonged periods of time.[344]

“Rectal Rehydration” and Other Sexual Abuse

The CIA also used “rectal rehydration” or “rectal feeding” which, as described in the Senate Summary, would amount to sexual assault, on at least five different detainees. The practice, not known to have been authorized by the OLC, involved inserting pureed food or liquid nutrients into the detainee’s rectum through a tube, presumably without his consent.[345] The CIA claims this was a medically necessary procedure and not an “enhanced interrogation technique.”[346] The Senate Summary, however, states the procedure was done “without evidence of medical necessity.”[347] Medical experts report that use of this type of procedure without evidence of medical necessity is “a form of sexual assault masquerading as medical treatment.”[348] At least three other detainees were threatened with “rectal rehydrations.” Allegations of excessive force used on two detainees during rectal exams to do not appear to have been properly investigated.[349] One of those two detainees, Mustafa al-Hawsawi, was later diagnosed with chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse.[350] Some CIA detainees have also reported having suppositories forced into their anus,[351] and other detainees have reported CIA operatives sticking fingers in their anus.[352]

Other Unauthorized Techniques

There is considerable evidence that many detainees in CIA custody were shackled with their hands above their heads for prolonged periods of time, sometimes days. This was often done while detainees were naked, at times diapered, and was often combined with sleep deprivation.[353] The OLC does not appear to have approved shackling detainees with their hands above their heads at all until the May 10, 2005 Bradbury memos. Even then, it approved the technique only in conjunction with sleep deprivation for up to two hours.[354] The CIA does not appear to have received approval from the OLC to use nudity, the abdominal slap, and dietary manipulation on detainees until at least August 26, 2004, yet it used these techniques on numerous detainees prior to these approvals.[355] The CIA contends that diapers were authorized for use on detainees only “for sanitation and hygiene purposes,” but CIA records indicate in some cases the central purpose was to “cause humiliation” and “induce a sense of helplessness.”[356] Similarly, the CIA represented to the OLC that nude detainees were not “wantonly exposed to other detainees or detention facility staff” but many were nevertheless kept in a central area and “walked around” by guards as a form of humiliation.[357]

Even though techniques considered “standard,” such as days of sleep deprivation and “water dousing,” amounted to torture or ill-treatment, the Senate Summary concludes that at least 17 detainees were subjected to “enhanced interrogation techniques” without authorization.[358]

Though use of unapproved techniques on even one detainee is a serious allegation, there are a number of reasons why this number might be low. First, it does not include cases in which CIA interrogators had authorization but applied the techniques in an unauthorized manner.[359] Second, the Senate Summary is based on CIA records,[360] yet the CIA kept poor records on the use of enhanced interrogation techniques at detention facility Cobalt[361] where more than half of the CIA’s known 119 detainees were held.[362] Finally, the Senate Summary states that its number of 119 total detainees is a conservative estimate.[363]

Libyan Survivors’ Accounts of Abuse in CIA CustodyFormer detainees released from CIA custody have provided accounts of CIA detention and torture not documented in the Senate Summary.[364] One is former CIA detainee Adnan al-Libi, who is mentioned in the Senate Summary only twice. The first time, he is listed as one of several detainees threatened with rectal rehydration.[365] The second time he is referred to in three lines of text stating that he was subjected to sleep deprivation beyond what was authorized for “46.5 hours, 24 hours, and 48 hours, with a combined three hours of sleep between sessions.”[366] These references do not convey the full scale of the abuse al-Libi experienced, the horrendous conditions to which he was subjected, or the pain and suffering he endured.When Human Rights Watch interviewed al-Libi, long before the Senate Summary was released, he said he thought one of his sleep deprivation episodes lasted for more like 15 days, though he said he was in a windowless cell with little ability to track time with great accuracy.[367] He also said the sleep deprivation was accomplished by forcing him to stand all those days with his hands chained above his head, feet shackled to the ground so that if his legs buckled, he would have to hang from his arms in order to try and sleep—something impossible to do. He endured this while diapered and otherwise naked. Once released from the standing sleep deprivation position and allowed to shower, al-Libi said he could not move his arms and so guards had to bathe him. “I was there for 15 days, hanging from my arms, another chain from the ground. They put a diaper on me but it overflowed so there was every type of stool everywhere.”[368] He said he had hallucinations and felt like he was going insane and was going to die.[369] Nor does the Senate Summary explain that, in addition to this one particular incident of sleep deprivation, the CIA held him for a total of eight months in total isolation, in pitch black windowless cells, subjected to freezing cold temperatures as well as well as nudity, painful stress positions, days of continuous sleep deprivation, dietary manipulation, and the blare of loud Western music 24 hours a day, all at the same time.[370]Other former detainees, entirely unconnected to al-Libi, reported having heard his screams while they too were held at the facility.[371] One, Mohamed Bashmilah, identified as Mohammad al-Shomaila in the Senate Summary, is mentioned only once, in a footnote that lists the names of at least 26 detainees that the CIA for the first time admitted publicly to have wrongfully detained.[372] The summary does not mention that Bashmilah was first abducted in Jordan with the help of the US, tortured there, rendered to Afghanistan where the CIA held him in the same facility as al-Libi, in cold, dark windowless cells, with only a bucket for a toilet, chained to the floor and wall and in unsanitary conditions. He remained in the same diaper in which he was transported to the facility for 15 days before he was provided with clothes, among other examples of mistreatment.[373] He tried to kill himself three times, once by cutting himself and using his own blood to write “this is unjust” on the wall.[374] The CIA held him for 19 months before transferring him to Yemen where he was detained for nine more months before being convicted of forgery and then released.[375]

Although the Senate Summary contains numerous descriptions of torture of detainees in CIA custody, there are evidently countless other abuses that are not documented in it. Just as the Justice Department’s Durham investigation was seriously flawed by the failure to include accounts from torture survivors, the Senate Summary would have greatly benefitted from access to the survivors themselves. Any future investigation, if it is to have any credibility, needs to include in-depth interviews with those who were detained and subjected to abuse in the CIA program.

Individuals Involved in “Unauthorized” Techniques

Mitchell and Jessen are among those who could be prosecuted for use of unauthorized techniques. They were the only two interrogators permitted to take part directly in the initial application of “enhanced interrogation techniques” on Abu Zubaydah and they also were directly involved in the application of “enhanced interrogation techniques,” including waterboarding, on Khalid Sheikh Mohammed and Abd al-Nashiri.[376] The Senate Summary makes clear that they applied techniques in ways that were unauthorized on many occasions.[377] Jessen also assisted CIA “Officer 1” in the interrogation of Gul Rahman (see below) who died in custody.[378]

The Senate Summary does not identify who carried out abuses that went beyond what were authorized but it does identify some by pseudonym.

Since the Senate Summary was released, Mitchell has said that the summary unfairly maligns him and Jessen.[379] For example, he said that the Senate Summary mentions a number of instances when CIA interrogators reported abuse and the use of unauthorized techniques but it does not mention that he and Jessen were the ones who reported it. Mitchell also said he was one of the interrogators who reported abuses to the CIA inspector general, initiating what resulted in a May 2004 OIG report.[380]

The Senate Summary identifies CIA “Officer 1” as being in charge of the Cobalt facility during a time when numerous detainees were subjected to “unapproved coercive interrogation techniques” and a detainee, Gul Rahman, died in CIA custody.[381] Officer 1 has been identified as Matthew Zirbel.[382] Zirbel was involved directly in the interrogation of Gul Rahman and ordered the detention conditions that led to his death.[383] Zirbel was not sanctioned for his role in Rahman’s death.[384] Four months after the death, Zirbel received a bonus for his “consistently superior work.”[385] The Senate Summary also identifies Officer 1, Zirbel, as the officer involved in a water dousing session that was not authorized. It resulted in the detainee “turn[ing] blue” and a physician’s assistant stepping in to remove the cloth over the detainee’s mouth so he could breathe.[386]

The Senate Summary also explains that a “senior debriefer” informed the CIA Inspector General that she “heard” that at detention site Cobalt someone identified as Officer 2 “hung detainees up for long periods with their toes barely touching the ground.”[387] Officer 2 is also identified in the summary as having been involved in the interrogation of Abd al-Nashiri, when a number of unauthorized techniques were used.[388]

For example, Officer 2 put Nashiri in a standing stress position with his hands affixed over his head for approximately two-and-a-half days; placed a pistol near Nashiri’s head while blindfolded and revved a power drill near his body; slapped Nashiri multiple times on the back of the head during interrogation; implied his mother would be brought before him and sexually abused; gave Nashiri a forced bath using a stiff brush; and used improvised stress positions that caused cuts and bruises resulting in the intervention of a medical officer, who was concerned that Nashiri’s shoulders would be dislocated from using the stress positions.[389]

The Senate Summary also documents that Officer 2 was not properly trained and had “anger management” issues.[390] Officer 2 is not further identified in the Senate Summary, but the Washington Post identified Albert El Gamil as a CIA linguist who interrogated Nashiri, subjected him to a mock execution, and put a drill to his head.[391] The CIA inspector general also reported on those events.

One senior CIA official identified as “the Deputy Chief of Alec Station” throughout the Senate Summary has been named in press reports as Alfreda Bikowsky.[392] She is reported to have participated in interrogation sessions that involved waterboarding, walling, and other techniques that amount to torture, and observed others engaged in such techniques.[393] She is also said to have advocated for the rendition of Khaled el-Masri, a German citizen the CIA wrongfully detained, and to have done so for many months after his mistaken identity was realized.[394] She was not disciplined for her role in his continued wrongful detention and was in fact promoted to run the “Global Jihad Unit.”[395] The Senate Summary also accuses her of falsely reporting in CIA cables that the CIA program was much more effective than it actually was, claiming, inaccurately for example that key operatives were identified and plots thwarted as a result of enhanced interrogation techniques.[396] These cables would then serve as a “template” on which future justifications of the program were based.[397] Bikowsky reportedly now holds a senior position at the CIA equivalent to that of a general in the army.[398]

Other Criminal Charges

In addition to torture and conspiracy to torture, there are a number of other charges that US authorities could bring either on their own or along with conspiracy. These include assault, sexual abuse, murder, and war crimes. In addition, the crime of conspiracy can be brought as a stand-alone charge under the federal conspiracy statute,[399] allowing prosecutors to charge conspiracy even if the underlying offense is never completed.[400] In either case, whether charged on its own or along with another substantive offenses, the elements of conspiracy discussed above would need to be established in order to sustain the charge.

Assault

Federal law criminalizes various degrees of assault, from “simple assault,” to assault with a deadly weapon, to assault that results in “serious bodily injury.”[401] The assault must occur within the special maritime and territorial jurisdiction of the US.[402] A CIA detention facility would appear to be within the “special maritime and territorial jurisdiction” of the US.[403] The crime of simple assault is “committed by either a willful attempt to inflict injury upon the person of another, or by a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm.”[404] Several “standard” CIA practices would seem to amount to assault:

  • Though not included among “enhanced interrogation techniques,” what the CIA called “rough takedowns” were part of the CIA’s program according to the Senate Summary. This involved several CIA personnel rushing simultaneously at a detainee while in his cell and while they were yelling and screaming. They then cut off all this clothes, secured him with tape, put a hood on him, slapped and punched him, and dragged him outside, up and down a corridor several times through the dirt. This caused abrasions on the detainee’s hands, face and legs.[405]
  • Another technique called “walling” involved shoving a detainee repeatedly into a wall that was supposed to be made out of flexible material while the defendant had a foam ring around his neck to prevent whiplash.[406] However, the Senate Summary states that during one of the walling sessions, James and Mitchell placed a rolled towel around Zubaydah’s neck and slammed him into a concrete wall. [407]

In addition, many specific instances of conduct that would amount to assault have been reported. A non-exhaustive list includes:

  • Nine of 14 detainees in CIA custody interviewed by the International Committee of the Red Cross (ICRC) alleged that they had been subjected to daily beatings during the initial period of their detention.[408] Their beatings involved “repeated slapping, punching and, less often, kicking, to the body and face, as well as a detainee having his head banged against a solid object.”[409] These beatings lasted up to half an hour and were repeated throughout the day and again on subsequent days. They took place during periods ranging from one week up to two to three months.[410]
  • Khaled Sheikh Mohammed, one of the detainees interviewed by ICRC, alleged that on a daily basis during the first month of interrogation in his third place of CIA detention: “if I was perceived not to be cooperating I would be placed against a wall and subjected to punches and slaps in the body, head and face.”[411] Similarly, Walid bin Attash, told the ICRC that: “every day for the first two weeks [in CIA custody in Afghanistan] I was subjected to slaps to the face and punches to the body during interrogation.”[412]
  • The Grand Chamber of the European Court of Human Rights made a determination of fact in El-Masri v. The Former Yugoslav Republic of Macedonia, relying on a 2007 report conducted by the Council of Europe’s Committee on Legal Affairs and Human Rights, that former detainee Khaled El-Masri was “beaten severely from all sides” by CIA agents, thrown to the floor after his clothes were forcibly removed, and that a suppository was forcibly inserted into his anus before being flown from Skopje Airport in Macedonia to Afghanistan.[413] After arriving in Afghanistan, the CIA drove El-Masri in a vehicle for 10 minutes, then “dragged [him] from the vehicle, slammed [him] into the walls of a room, [threw him] to the floor, kicked and beat[] him. […] Later, he understood that he had been transferred to a CIA-run facility.”[414]
  • Mohamed Farag Ahmad Bashmilah described a similar beating while held in CIA custody. He said he was turned over to the CIA in the early morning hours of October 26, 2003. After a short car ride to a building at the airport in Jordan, his clothes were cut off by black-clad, masked guards wearing surgical gloves. He was beaten. Bashmilah said one guard stuck a finger in his anus.[415]
  • Laid Saidi, who had been held by the CIA for 16 months, said CIA interrogators “beat me and threw cold water on me, spat at me, and sometimes gave me dirty water to drink.”[416]

Sexual Abuse

At least three types of sexual abuse charges may apply to CIA actions under federal law. These include sexual abuse, aggravated sexual abuse, and abusive sexual contact. These provisions make it a crime to force anyone, while in a facility run by any federal department or agency or in the special maritime and territorial jurisdiction of the US, to engage in a sexual act or sexual contact.[417] A sexual act is defined to include, in relevant part, “the penetration, however slight, of the anal … opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, [or] degrade.”[418] Sexual contact is defined to include: “intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, [or] degrade.”[419]

The CIA subjected at least five detainees to “rectal rehydration” and threatened several other detainees with the procedure.[420] “Rectal rehydration”—which in one case involved pureeing and rectally infusing a detainee’s meal of humus, pasta sauce, nuts and raisins —was done for the purpose of behavior control, not out of medical necessity.[421] A chief interrogator characterized the procedure as illustrative of the interrogator’s “total control over the detainee.”[422] Another CIA official described the technique as helping to “clear a person’s head” and being effective at getting a detainee to talk.[423] One email describing the technique said “we used the largest Ewal [sic] tube we had.”[424] These statements suggest that the use of rectal rehydration was intended to abuse, harass, humiliate and degrade detainees, not for any legitimate medical purpose.

The Senate Summary indicates that CIA leadership, including General Counsel Scott Muller and CIA Deputy Director for Operations James Pavitt, was also alerted to allegations that rectal exams were conducted with “excessive force” on two detainees at detention site Cobalt in Afghanistan.[425] An unidentified CIA attorney was asked to follow-up but CIA cables do not indicate there was any resolution.[426] As noted above, one of the CIA detainees, Mustafa al-Hawsawi, was later diagnosed with chronic hemorrhoids, an anal fissure, and symptomatic rectal prolapse.[427] Hawsawi is one of five detainees accused of playing a role in the September 11 attacks and is on trial at the military commissions at Guantanamo Bay. Since he was arraigned on the charges in May 2012, he has sat on a pillow throughout the proceedings.[428] When asked about the details of what happened to his client, Walter Ruiz, Hawsawi’s lawyer in the military commission proceedings, said that due to rules about classified information he was unable to discuss any facts that were not contained in the Senate Summary about his client’s time in CIA custody.[429] Some CIA detainees have also reported having suppositories forced into their anus.[430] And other detainees have reported CIA operatives sticking fingers in their anus.[431]

Murder and Manslaughter

At least one detainee, Gul Rahman, died from hypothermia after being shackled overnight, half-naked, to a concrete floor at a CIA detention center in Afghanistan.[432] Rahman was taken into custody in Pakistan on October 29, 2002 and died at the CIA detention site Cobalt, on November 20, 2002.[433] CIA records state that while he was in CIA custody he was subjected to “48 hours of sleep deprivation, auditory overload, total darkness, isolation, a cold shower, and rough treatment” without approval of these techniques in advance.[434] Several former CIA officials report that Rahman’s “hands were shackled over his head” and “he was roughed up and doused with water.”[435] The Senate Summary states that “dehydration, lack of food, and immobility due to ‘short chaining,’” were also factors that contributed to Rahman’s death.[436]

Another detainee, Manadel al-Jamadi, also died just over five hours after his arrest while undergoing a CIA-led interrogation.[437] A plastic bag had been placed over his head and he was shackled with his arms behind him to a barred window five feet off the ground.[438] Military investigators deemed it a homicide due to “blunt force trauma” to the head and torso “complicated by compromised respiration” and five broken ribs.[439] Both cases were included in the Durham investigation into CIA abuses (see above) but al-Jamadi’s case was not included in the Senate Summary.[440] The reason it was not included is unclear, but it is possibly because his death occurred at Abu Ghraib, a military base, not at a CIA detention center, and there was some military participation.[441] No criminal charges were ever brought in either case yet the publicly available facts indicate that either manslaughter or murder charges were viable in both cases.[442] Though the statute of limitations would likely bar charges for manslaughter today, charges for murder could still be brought since it is a capital crime and therefore not subject to a statute of limitations (see below).

War Crimes

Charges may be available under the US War Crimes Act of 1996.[443] The act provides criminal punishment for whomever, inside or outside the US, commits a war crime, if either the perpetrator or the victim is a member of the US Armed Forces or a national of the United States.[444] A “war crime” is defined as any “grave breach” of the 1949 Geneva Conventions or acts that violate article 3 common to the four Geneva Conventions of 1949 (Common Article 3). Grave breaches include “willful killing, torture or inhuman treatment” of prisoners of war and of civilians qualified as “protected persons.” Common Article 3 prohibits murder, mutilation, cruel treatment and torture, and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

The 2006 Military Commissions Act revised the War Crimes Act and limited the definition of war crimes, with retroactive effect.[445] As a result, humiliating and degrading treatment of detainees in US counterterrorism operations following the September 11 attacks can no longer be charged as a war crime under the statute.[446] However, the Military Commissions Act did not change liability for murder, rape, sexual assault, and torture.[447]

Defenses

Statutes of Limitations

Though much of the torture and other abuse took place many years ago, many of the available charges are not barred by statutes of limitation.[448] The statute of limitations for most federal crimes is five years,[449] but there are several exceptions to this rule that are applicable to the facts described above.

Capital Offenses

There is no statute of limitations for capital offenses, which include torture that result in death.[450] In at least two cases, the CIA’s use of interrogation techniques contributed to death.[451]

Offenses Leading to Serious Risk of Bodily Injury or Risk of Death

The USA Patriot Act expanded the statute of limitations for a specific list of offenses from five to eight years.[452] Torture, as well as conspiracy to torture and conspiracy to kidnap persons abroad, are crimes that are included on that list.[453] While many of the offenses described above were committed more than eight years ago, the statute of limitations may well have been tolled (or extended), as discussed below.

In addition, when the commission of one of the offenses results in death or creates a foreseeable risk of death or serious bodily injury, there is no statute of limitations.[454]

Many of the CIA abuses and potential charges described above fit the category of offenses that create a foreseeable risk of death or serious bodily injury.[455] As previously noted, in at least one case, the CIA’s use of torture resulted in death. In other cases, detainees came close to dying or it was clear they would suffer other long-term injuries.

In contemplating the very first use of the approved “enhanced interrogation techniques” on Abu Zubaydah, who had been shot three times during his capture and was reportedly close to death,[456] CIA officers at the detention site where he was held wrote:

If [Abu Zubaydah] develops a serious medical condition which may involve a host of conditions including a heart attack or another catastrophic type of condition all efforts will be made to ensure that proper medical care will be provided to [him]. In the event that [Abu Zubaydah] dies, we need to be prepared to act accordingly, keeping in mind the liaison equities involving our hosts.[457]

The memo went on to note that if Abu Zubaydah died, he would be cremated, but “regardless …. In light of the planned psychological pressure techniques to be implemented, we need to get reasonable assurances that [he] will remain in isolation and incommunicado for the remainder of his life.”[458] One application of the waterboarding technique on Abu Zubaydah was so physically harmful that it induced convulsions and vomiting.[459] He later became completely “unresponsive, with bubbles rising through his open, full mouth.”[460]

Another detainee was subjected to the CIA’s “water-dousing”[461] technique during which a CIA officer poured cold icy water directly on the detainee’s face “to disrupt his breathing.”[462] The detainee “turned blue” and a physician’s assistant intervened, removing the cloth over the detainee’s mouth so he could breathe.[463]

In another case, two detainees with broken feet were forced to stand and walk on their injured legs for days while being subjected to standing sleep deprivation, despite a medical examiner recommending that they not put any weight on their broken bones for, in the case of one detainee, five weeks and in the case of another detainee, for three months.[464] With regard to one of the detainees, a CIA cable drafted days later stated that, “even given the best prognosis,” the detainee would have “arthritis and limitation of motion for the rest of his life.”[465]

Sexual Abuse

There is no statute of limitations for certain types of sexual abuse crimes.[466] These include the three charges discussed above as potentially applicable to “rectal rehydration”: sexual abuse, aggravated sexual abuse, and abusive sexual contact.

Special Case of Conspiracy

Conspiracy, like most federal crimes, is subject to a five-year statute of limitations. But it is distinct from other offenses in that it is a continuing crime that does not end until the last co-conspirator commits the last overt act of the conspiracy.[467]

Normally, actions taken by co-conspirators to hide crimes after they are committed are not considered part of the conspiracy. However, where concealment is a central component of the purpose of the conspiracy—as appears to be the case here—the limitation period may be extended until the date of the last act or attempted act of concealment.[468]

On the facts at issue here, if prosecutors charged conspiracy using the stand-alone conspiracy statute, one of the central components of the conspiracy would be the process by which various officials sought to generate legal cover, or “authorization” for the use of “enhanced interrogation techniques,” knowing those techniques were unlawful. Ongoing attempts on the part of senior White House, CIA, or other officials to conceal their involvement in manufacturing the legal cover for torture can be considered an overt act in furtherance of the conspiracy that works to extend the five-year statute of limitations.

The concealment continues to this day. As recently as December 11, 2014, two days after the SSCI report was released, former Vice President Dick Cheney reiterated the importance of OLC approval for the techniques, as if OLC approval were an independent act and not itself part of the conspiracy to commit torture: “Torture is something we very carefully avoided.… All of the techniques that were authorized by the president were, in effect, blessed by the Justice Department opinion that we could go forward with those without, in fact, committing torture.”[469]

Concealment of the central component of the conspiracy, to the extent that it took place, could work to toll any statute-of-limitations issues until the present, or at least very recently. The same is true for other attempts, well documented in the Senate Summary, to keep the nature, extent and effectiveness of the abuses from the public and prosecutors.[470]

In addition, it is unclear whether the Department of Justice had full access to relevant CIA and White House records as part of the Durham inquiry—or does even today. Indeed, Senate Intelligence Committee staff drafting the report never had full access to White House or CIA files as they relate to the CIA program. The CIA asserted executive privilege on behalf of the White House in relation to more than 9,400 documents that the Senate Intelligence Committee requested for their report.[471] The CIA also refused to provide a copy of an internal review of the CIA’s program (often referred to as the “Panetta Report” after then CIA director Leon Panetta) to the Senate Intelligence Committee.[472] In the event that prosecutors had full and immediate access to all CIA files on August 29, 2009 when the investigation was announced, the statute of limitations might bar prosecution under the general conspiracy statute, section 371, but it would not bar prosecution for torture, conspiracy to torture under section 2340A(c), or conspiracy to kidnap under section 956 both of which have an eight year statute of limitations and no statute of limitation when a foreseeable risk of death or serious bodily injury may result.

“Good Faith” Reliance on Counsel

As noted above, Bush, Cheney, and others have asserted that in implementing the program, they were merely relying on OLC’s guidance that the techniques being employed by the CIA were lawful.[473] This suggests officials might invoke a defense of a “good faith” reliance on counsel to any criminal charges brought. But such a defense would be weak as applied to these facts.

Under US law an accused person generally cannot invoke an “advice-of-counsel” or “mistake-of-law” defense.[474] As Judge Richard Posner has noted, “If unreasonable advice of counsel could automatically excuse criminal behavior, criminals would have a straight and sure path to immunity.”[475] However, advice of counsel can be relevant to certain elements of crimes, such as a requirement of knowledge or willfulness.[476] For example, as one case notes:

Reliance on counsel’s advice excuses a criminal act only to the extent it negates willfulness and to negate willfulness counsel’s advice must create (or perpetuate) an honest misunderstanding of one’s legal duties. If a person is told by his attorney that a contemplated course of action is legal but subsequently discovers the advice is wrong or discovers reason to doubt the advice, he cannot hide behind counsel’s advice to escape the consequences of his violation.[477]

However, a portion of the 2005 Detainee Treatment Act, which was drafted after the Abu Ghraib revelations and the release of the Torture Memos, provides that in any criminal prosecution arising out of a US person’s or other agent’s engagement in operational practices involving the detention and interrogation of individuals:

that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that … [the] agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful.[478]

This statutory defense applies only to “officially authorized” conduct that was “determined to be lawful at the time.” In this case, the defense would center on the question of whether it was reasonable to believe that the CIA practices were lawful and if reliance on the advice of counsel was made in “good faith.” If so, even under section 1004(a), good faith reliance would not be a complete defense but it would be an “important factor … to consider” in assessing whether a person should have known the practices were unlawful.

This defense is weak for the following reasons:

First, it was not reasonable to believe these practices were lawful. As mentioned above, the techniques themselves were derived from the SERE program—a program designed to train US special forces to endure interrogation methods used by enemies who did not abide by the Geneva Conventions; many of the techniques were already banned by the US Army Field Manual in effect at the time—a manual that describes many of the techniques as torture; and the FBI refused to participate in the program. It is reasonable that people involved should have questioned the legality of the practices. Moreover, the extensive discussion about whether the CIA was engaging in “humane” practices reveals that CIA officials concern about whether they should be engaging in the practices at all, even after they were “authorized.”

Second, reliance on counsel was not “in good faith.” As mentioned above, before the OLC memos were produced, the CIA and senior officials already knew that courts would almost certainly find many of the authorized techniques illegal. That is why they sought a guarantee not to prosecute from the Department of Justice Criminal Division, which refused to provide it, and very likely why the FBI refused to participate in the CIA’s detention and interrogation program. Only after these rejections did Yoo add arguments to the memos about the specific intent requirement, commander-in-chief powers, and defenses to prosecution. The evidence suggests that this was done at the request of senior officials at the White House and the CIA who were concerned about the illegality of the techniques and looking for legal cover. As one legal scholar put it: “When considered as a whole, the memos reveal a sustained effort by the OLC lawyers to rationalize a predetermined and illegal result.”[479] This alone suggests that any reliance was not in good faith. But numerous other signs along the way, such as Abu Zubaydah’s waterboarding sessions, which generated concerns about illegality from CIA officers, provide further evidence.[480]

Finally, the statutory defense is only available to those who engaged in “specific operational practices” in connection with detention and interrogation activity. It should therefore not be available to those involved in authorizing the program. It also should not be available to those who engaged in practices that went beyond what where authorized. This would include applying techniques in a manner inconsistent or in excess with authorizations or doing so without getting prior approval as required.

III. Repairing the Harm and Ending Torture

Obligation to Provide Redress, Compensation, and Rehabilitation

The Convention against Torture, in addition to obligating states to investigate and appropriately prosecute torture and other ill-treatment, requires them to provide redress to victims of torture and ensure that they have “an enforceable right to fair and adequate compensation.”[481] This should include the means to obtain full rehabilitation to the extent possible, as well as compensation to dependents when a torture victim is deceased.[482]

As a party to the International Covenant on Civil and Political Rights (ICCPR), the United States is also obligated to “give effect to the rights” recognized by the treaty, including when those rights have been violated “by persons acting in an official capacity.”[483] Specifically, the US is treaty-bound to provide an “effective remedy,” including a “judicial remedy,” and to ensure that competent authorities “enforce such remedies when granted.”[484]

In addition to torture and ill-treatment, the ICCPR prohibits arbitrary arrest and detention, and requires states, at minimum, to provide those detained with the ability to challenge the lawfulness of detention before a court.[485] The ICCPR specifically requires that those who are the “victim of unlawful arrest or detention shall have an enforceable right to compensation.”[486]

Harms from Arbitrary Detention, Torture, and Ill-Treatment

The CIA program had both short-term and long-term physical and psychological effects on detainees. Techniques such as suspension of the arms causes musculoskeletal pain, chronic severe headaches, numbness and weakness in the arms. Constant exposure to loud music causes hearing loss. And prolonged stress positions result in back pain and numbness in the legs.[487] Former detainees subjected to CIA interrogation techniques reported lasting mental health effects such as depression, anxiety, sleeplessness, post-traumatic stress disorder, feelings of hopelessness, sadness, isolation, bouts of weeping, panic attacks, nervous or explosive reactions to minor problems, memory loss, and flashbacks.[488]

Detainees in CIA custody were also subjected to long-term incommunicado detention, which itself can amount to a form of torture.[489] For their families it brought the considerable stress of not knowing the whereabouts of their relatives or even whether they were alive or dead.

One Family’s SufferingMohammed Shoroeiya’s wife Fawziya had no knowledge of her husband’s whereabouts after US and Pakistani forces took him into custody during a raid on their home in Peshawar Pakistan in March 2003. She did not know that US forces sent Shoroeiya to two different “black sites” where he was detained for 16 months.[490] The US then rendered Shoroeiya back to Libya, a country from which he had fled 15 years earlier and where he feared he would be tortured, perhaps killed. It was only at this point, in August 2004, that Libyan authorities informed Fawziya that her husband was alive.[491] The Libyan government then transported Fawziya and their daughter Aisha back to Libya from Pakistan. However, Shoroeiya, a known opponent of Libyan leader Muammar Gaddafi, remained imprisoned in Libya for another seven years. He was only released in 2011, along with other political prisoners in Gaddafi’s jails, during the Libyan uprising of 2011. While her husband was in US and Libyan custody, Fawziya relied on the good will of neighbors and family to survive.[492] “One day they just came and took him. I didn’t know what to do,” Fawziya said. “I had nothing, all I had were prayers, and they told us nothing.”[493] Shoroeiya said knowing the impact his absence had on his wife and child was the hardest thing about being detained, harder than the torture:The biggest suffering for any prisoner like myself was the situation with our families. When my daughter comes to me and says they prevented her from going to school or my wife comes to me and says she doesn’t have a dime to spend, that is suffering. You asked me about the physical abuse. That was number 10 on the list of the worst things that I was going through.[494]Many other families were left without their main breadwinner and suffered severe economic hardship. After the US released men it had detained from detention, many reported having problems adjusting to normal life, difficulty finding jobs, and problems coping with the stigma associated with their prior detention.[495]

US Failure to Comply with International Legal Obligations

Failure to Provide Compensation

Compensation can provide victims and their family members with the means to address the lasting impact of human rights violations. These can include loss of employment opportunities, education, social benefits, earning potential, harm to reputation, costs required for legal assistance, and medical, psychological and social services.[496] Compensation, of course, is not a substitute for investigations and appropriate prosecutions, and does not address many government obligations under the Convention against Torture. [497]

It can be expected that there would be significant political resistance in the United States to providing compensatory redress to former detainees because of the belief that the US “war on terror” justified the government’s actions, that those detained were involved in terrorism even if not prosecuted for the crime, and that any compensation provided could be misused for terrorist activities. Such arguments do not take into account that many detainees were taken into custody unlawfully even by the CIA’s own standards, that those involved in terrorist acts remain protected under international law against torture and other ill-treatment, and that measures can be put in place to prohibit funds from being used for illegal purposes.[498] Moreover, providing compensation would go a long way in helping deflate anger against the United States in many countries around the world. Regardless of the extent of these practical benefits, however, US treaty obligations require that compensation and other redress be provided without discrimination, regardless of why the person entitled to redress was detained, including whether that person was accused of terrorist acts.[499]

US Obstruction of a Right to a Remedy

In reporting to the UN Committee against Torture in 2013 about its compliance with treaty obligations, the US stated that “various avenues” exist and a “wide range of civil remedies” are available to victims of torture to obtain redress.[500] Yet virtually no individual who has brought suit against US personnel or civilian contractors working for the US government with valid claims of CIA or US military post-9/11 torture have ultimately prevailed in court.

Many cases have been dismissed in court not for lack of merit but rather because the US government has blocked suits at early stages by claiming the state secrets privilege.[501] In other cases, courts have refused to weigh in, finding that the subject matter of the case touches on foreign policy or national security—issues normally within the purview of the executive branch.[502] In still other cases government attorneys have successfully argued that claims are preempted under federal law or trigger various forms of immunity.[503] These cases have set precedents making it nearly impossible for detainees to effectively sue for torture and ill-treatment in US courts.[504] To ensure that victims of arbitrary arrest and torture have a genuine right to remedy in the United States, Congress should pass legislation calling for compensation, the executive branch should initiate its own compensation mechanism, and the Department of Justice should take a different stance on the state secrets privilege.

State Secrets Privilege

In the United States, the state secrets privilege allows the head of an executive department to refuse to produce evidence in a court case on the grounds that doing so would reveal secret information that would harm national security or foreign relations interests if disclosed.[505] Courts can test these claims to a certain extent but in most cases have deferred to government assertions about the potential harms.[506]

The US government should reconsider its position on the state secrets privilege with regard to any new litigation brought forward in light of release of the Senate Summary, as much of the information that would be at issue is now publicly available.[507]

The Obama administration’s own policy regarding state secrets requires that the privilege be invoked only “when genuine and significant harm to national defense or foreign relations is at stake and only to the extent necessary to safeguard those interests.”[508]

The US has now conceded far more details about US authorized torture, and released far more details on the interrogation programs than ever before. It cannot credibly claim that litigating cases about such topics would endanger US national security. Prior to the release of the Senate Summary, US government officials made alarming claims about the dangers release of the report would pose, such as widespread anti-American protests.[509] No evidence has been put forward that those claims ultimately came true.[510] At minimum, the courts should scrutinize government claims about the need for secrecy in the CIA torture context, and allow the cases to go forward with appropriate protective orders that would bar disclosure of sensitive material.

In the alternative, if the government is genuinely concerned about revealing state secrets it can offer to settle lawsuits rather than fight claims when it knows US officials have engaged in torture or other ill-treatment, or propose other types of compensation mechanisms that would assist victims with recovery.

Classifying Information about CIA TortureUntil December 2014, the US deemed all information relating to the CIA’s detention and interrogation program as classified. This included even detainees’ own “observations and experiences” about what happened to them in while in CIA custody.[511] The classification rule effectively barred former detainees who were still held at the Guantanamo Bay detention facility and their lawyers from making complaints about CIA torture to tribunals abroad, other third-parties, and to the outside world in general, because it would run afoul of US restrictions on classified information. About 25 detainees previously held by the CIA remain at Guantanamo.[512]The use of classification rules to block information about torture and ill-treatment from being made public violates article 13 of the Convention against Torture, which requires states to ensure that any individual subjected to torture under their jurisdiction “has the right to complain” and have their complaint “promptly and impartially examined.”[513] In a legal document submitted in several cases before military commissions at Guantanamo since release of the Senate Summary, the US government took the position that the treatment and conditions of confinement of detainees while in CIA custody was no longer classified (though identities of individuals or other governments involved and locations of CIA detention centers remained classified).[514]However, as of this writing, court orders in the military commission cases that govern the way that classified information is handled in the military commissions , as well as cases brought on behalf of Guantanamo detainees challenging the lawfulness of their detention (known as “habeas corpus” cases), have not yet been updated. As a result, restrictions on the ability of lawyers representing detainees to discuss their clients’ treatment while in CIA custody remain in place. Lawyers representing one detainee of the CIA who is still in Guantanamo, Majid Khan, submitted their notes containing information about how Khan was treated in CIA custody for declassification review and were granted permission to share that information with the public.[515] Release of that information to the press generated stories about Khan being subjected to even more torture than is documented in the Senate Summary.[516] But a similar attempt on the part of Joseph Margulies, Abu Zubaydah’s lead defense lawyer, to release his client’s account of his CIA torture, was rejected in September 2015 for unknown reasons.[517]

Legislation, Other Measures

In one of the cases dismissed on state secrets grounds, Mohammed v. Jeppesen Dataplan, Inc., the Ninth Circuit Court of Appeals expressed discontent that the plaintiffs were deprived of an opportunity to prove their alleged mistreatment and obtain compensation.[518] The court also noted its dismissal eliminated judicial review, “an important check on alleged abuse by government officials and putative contractors.”[519] But the court also said the US government could still provide a remedy and pointed to a number of actions the US government had taken in the past in similar circumstances.[520]

For example, during World War II, the US relocated and detained more than 110,000 citizens and non-citizens of Japanese ancestry in various locations in the US.[521] The Civil Liberties Act of 1988, signed into law by President Ronald Reagan, acknowledged the fundamental injustice of the “evacuation, relocation, and internment of United States citizens and permanent resident aliens of Japanese ancestry during World War II.”[522] It also stated that government actions were motivated by “racial prejudice, wartime hysteria, and a failure of political leadership” rather than legitimate security concerns and gave each surviving detainee $20,000.[523]

The Jeppesen court pointed to settlements under this act as an example of ways the US had provided reparations for wrongful detentions of non-US citizens in the past. The Civil Liberties Act did not cover more than 2,000 Latin Americans of Japanese descent, including entire families, whom the US abducted from their countries and interned at camps in the US. They were not entitled to compensation because they were not US citizens or lawful permanent residents, a requirement under the statute. After the war the US returned many of them to Japan even though they were from Latin America, where some of them ended up homeless and starving.[524] These Latin Americans brought a class action lawsuit based on the Civil Liberties Act that ended up settling, recorded in Mochizuki v. United States.[525]

In denying the plaintiff’s claims, the Jeppesen court also indicated that Congress had the power to enact private bills.[526] Generally such bills are meant to benefit solely the individuals named in them.[527] While uncommon, private bills are meant to “address claims …. founded not on any statutory authority, but upon the claim that ‘the equities and circumstances of a case create a moral obligation on the part of the Government to extend relief to an individual.’”[528] The Jeppesen court also noted that Congress could also refer an individual claim to the Court of Federal Claims for a recommendation before enacting a private bill.[529]

No one in Congress or the executive has proposed legislation that would provide compensation to victims of CIA torture, nor has the executive offered any other way to resolve the issue.

In contrast to the US, several other countries have provided compensation to former detainees held by the CIA or the US military for which their own authorities also committed wrongdoing. They have done so even though the level of culpability may have been significantly lower than that of the US. Some of these settlements include:

  • The United Kingdom has committed to mediation with those who have brought civil claims alleging UK involvement in torture and illegal renditions and wherever appropriate, to provide compensation (“[W]e are committed to mediation with those who have brought civil claims about their detention in Guantanamo. And wherever appropriate, we will offer compensation.”).[530]
  • The UK has already settled claims brought by 16 former Guantanamo detainees.[531]
  • The UK in December 2012 settled a case with Sami al-Saadi who was unlawfully rendered by the CIA, with the cooperation of UK intelligence services, to Libya.[532] A second civil case against the UK government by a Libyan rendition victim, Abdul Hakim Belhadj, is ongoing.[533]
  • In 2008 the Swedish government formally apologized for its role in the CIA’s unlawful rendition of Ahmed Agiza and Muhammed Alzery to Egypt and compensated each the equivalent of $500,000.[534]
  • In 2007, the Canadian government apologized for its role in the unlawful rendition of Maher Arar to Syria by the CIA in 2002 and paid him a settlement of C$9.7 million.[535] (Arar brought suit in the US earlier, but his case was dismissed on grounds that the judicial branch should not weigh in on US rendition policy— according to the court, a foreign relations issue within the purview of the executive branch).
  • In 2010, Australia paid out an undisclosed settlement to Mamdouh Habib, a former Guantanamo detainee.[536] Habib is an Australian national who was arrested in Pakistan shortly after the September 11 attacks, secretly taken to Egypt, where he was tortured for seven months, and then transferred to Guantanamo Bay, where he was held until January 2005.[537]

In addition to these settlements, the European Court of Human Rights has ruled against Poland for its role in the detention and torture of two former detainees in CIA custody, Abu Zubaydah[538] and Abd al-Nashiri.[539] It also ruled against Macedonia for its role in the abduction and torture of Khaled el-Masri.[540] A US federal court had dismissed el-Masri’s case on state secrets grounds in 2006 and his appeals were all denied.[541] The European Court ordered Poland and Macedonia to pay €250,000 and €60,000 respectively. Poland has paid out its settlement to Abu Zubaydah and al-Nashiri.[542] Macedonia was due to pay within three months of the judgment on December 12, 2012.[543]

Guarantee of Non-Repetition, Satisfaction, and the Right to Truth

The right to redress encompasses the concepts of “effective remedy” and “reparation,” which not only include restitution, compensation, and rehabilitation but also “guarantees of non-repetition” and “satisfaction.”[544]

With regard to non-repetition, the Committee against Torture has interpreted the Convention against Torture to provide that states are obligated to combat impunity for violations, including by taking measures such as “establishing effective clear instructions to public officials on the provisions of the Convention, especially the absolute prohibition of torture”; “civilian oversight of military and security forces”; “establishing systems for regular and independent monitoring of all places of detention”; providing training for security forces and health and legal professionals on human rights law, including specific training on the Istanbul Protocol (on documentation of torture); and “reviewing and reforming laws contributing to or allowing torture and ill-treatment.”[545] A UN General Assembly resolution sets out more general measures for victims of serious human rights and international humanitarian law violations.[546]

Though then-President George W. Bush disclosed the CIA rendition, detention, and interrogation program in 2006 and moved a number of prisoners from CIA custody to Guantanamo, the program did not officially end until President Barack Obama issued executive order 13491 on his second day in office. This order barred the CIA from operating detention facilities and from holding detainees on all but a temporary, transitory basis; required all US personnel to abide by the Army Field Manual for Intelligence Interrogations; and required that the International Committee of the Red Cross have prompt access to all laws-of-war detainees.[547]

These are important measures. But Obama’s executive order is not adequate to ensure non-repetition in the future—particularly when inaction on investigations and prosecutions sends the message to those responsible for torture that the law will not be enforced. Upon the release of the Senate Summary, CIA Director John Brennan made significant admissions about mistakes the CIA had made in running, operating, reporting on, and promoting the program. However, he also said whether the techniques had some value was “unknowable.” And when asked what was to stop future policy makers from using them again, he said the CIA was not currently contemplating reinstating the detention program or using “enhanced interrogation techniques” but he deferred to “policymakers in future times” regarding whether they might need to be used again in a similar type of “crisis.”[548]

There remains a very real danger that US officials will again view torture as a viable policy option. Obama’s executive order, like all executive orders, can be revoked by future presidents. Several 2016 presidential candidates have defended the “enhanced interrogation techniques” and said or implied that they would use them again.[549] US presidential candidate Jeb Bush, when asked whether he would contemplate using “enhanced interrogation techniques” if he were elected, did not rule out the possibility and also said that waterboarding was not torture.[550]

The best way to ensure that torture and other ill-treatment will not be used in the future is by prosecuting past unlawful acts. Strengthening existing legislation against torture would also establish clearly that the US government does not intend to engage in such practices again.

On June 16, 2015, the US Senate passed an amendment proposed by senators John McCain and Dianne Feinstein to a defense spending bill (the National Defense Authorization Act for Fiscal Year 2016) that if it becomes law, could codify much of what is in Obama’s executive order 13491.[551] The amendment passed in the Senate by a vote of 78-21.[552] The entire bill was then vetoed by Obama over other issues, but a similar provision remained in the compromised version bill which, as of this writing, was expected to be signed into law by the President.[553] It provides that any individual detained by the US in an armed conflict can only be interrogated in ways outlined by the US Army Field Manual on Intelligence Interrogations. It also requires review and updating of the manual within three years to ensure that it reflects current best practice and complies with all US legal obligations and requires that the International Committee of the Red Cross get “notification of, and prompt” access to, all prisoners held by the US in any armed conflict.[554] It is already clear under US law that torture and other ill-treatment is illegal but this requirement would help to more specifically restrain the physical action certain US interrogators could take.[555]

However, it is also impossible to know for sure how future administrations will interpret its obligations under the provisions. Additionally, an exemption for the FBI, the Department of Homeland Security, and other federal “law enforcement entities” was added to the compromised version of the bill.

IV. International Accountability Mechanisms

The US government’s failure to conduct adequate criminal investigations into allegations of torture and other serious abuses committed by US nationals in the context of the CIA’s rendition, detention, and interrogation program has opened the door to investigations and prosecutions by national judicial authorities outside the United States.[556]

Investigations to date have targeted both US officials and those from other countries since a number of European countries provided support to the CIA program, in particular by allowing US officials to establish secret prisons known as “black sites” on their territory or to use their airports and airspace to conduct rendition flights. Several investigations have also focused on allegations of torture and other serious abuses committed outside of the context of the CIA program, principally around torture and ill-treatment of detainees held at Guantanamo Bay; in Iraq (especially at Abu Ghraib prison); and in Afghanistan. In addition, the International Criminal Court (ICC) has opened a preliminary examination into the situation in Afghanistan and is assessing whether to open a formal investigation, including into allegations of detainee abuse by members of the US armed forces.

Jurisdiction over criminal offenses normally depends on a link between the prosecuting state and the crime. Most often this link is territorial, meaning that the crime occurred in the state that is prosecuting the crime. In other instances, the link is that the alleged perpetrator or the victim is a national of that country.[557] However, judicial authorities of third countries may also investigate and prosecute the most serious international crimes—including war crimes, torture, crimes against humanity, and genocide—even where the crimes took place elsewhere and neither the accused nor the victims are nationals of that state. Such cases are pursued under the international law principle of “universal jurisdiction,” which embodies the idea that certain crimes are so egregious that every state has an interest and corresponding duty in bringing perpetrators to justice.[558]

Universal jurisdiction provides an important safety net for ensuring accountability when serious crimes cannot or will not be effectively prosecuted in the state where the crimes were committed or before an international criminal tribunal. For certain crimes, including war crimes, and torture, international treaties and customary international law place an affirmative duty on states to exercise universal jurisdiction and prosecute suspects who come onto their territory, unless the state decides to extradite them to face trial elsewhere.[559]

The principle of universal jurisdiction has existed for centuries. However, its application to human rights abuses and war crimes only began to gain real momentum in the past two decades, with the arrest of former Chilean President Augusto Pinochet in the United Kingdom in 1998 on charges of torture committed in Chile.[560] Since then, more and more governments, particularly in Europe, have been willing to use domestic universal jurisdiction laws to ensure that those responsible for torture, war crimes, and other international crimes do not escape justice.[561] At the same time, most cases brought to trial under universal jurisdiction have involved low- and mid-level suspects from less powerful countries.[562] In 2008, US prosecutors notably secured a first conviction under its Torture Act, which allows cases based on universal jurisdiction to prosecute torture committed abroad, against the son of former Liberian dictator Charles Taylor, Charles “Chuckie” Taylor, Jr.[563] The trial of former Chadian dictator Hissène Habré in Senegal, which began on July 20, also marks the first time in history that a former head of state is prosecuted by the domestic courts of another country and the first universal jurisdiction case to proceed to trial in Africa.[564]

Human Rights Watch has compiled a review, set forth below, of criminal investigations initiated abroad into torture and other serious abuses committed as part of the CIA program or by US armed forces since the 9/11 attacks.[565] Many of these investigations do not make a distinction between US military and CIA abuses, so we have included investigations regardless of whether the military or the CIA was the dominant focus. Nearly all of the cases have been initiated by victims and civil society groups, and all have occurred in Europe. Many European civil law jurisdictions, unlike most common law countries like the US, allow victims and in some cases nongovernmental organizations to file criminal complaints directly with the courts, thereby triggering the opening of a judicial investigation.[566] Many criminal complaints filed by private parties have not resulted in actual investigations. Italy is the only country to have brought a case to trial, which eventually resulted in the final in absentia convictions of CIA officers and a US air force colonel, as well as several Italian officers.[567] The trial brought to light important information that was tempered by being in absentia, whichraises serious fair trial concerns.[568]

Nearly all of the other criminal investigations initiated against US nationals to date have been closed. However, a criminal investigation in France is progressing slowly. And Germany’s federal prosecutor’s office is considering whether to open an investigation into senior members of the Bush administration following the filing of a new complaint by the European Center for Constitutional and Human Rights (ECCHR) in December 2014, shortly after the release of the Senate Summary.

Mounting evidence of involvement by governments in Europe in the CIA program—underscored by the Senate Summary—and growing pressure from civil society groups, and court judgements, led several countries to open criminal investigations into complicity by their nationals. This includes Poland where the investigations have languished, and in Lithuania where investigations were opened briefly, closed for a number of years, and then reopened when the Senate Summary was made public. UK authorities have initiated four separate investigations, two of which remain open.

Overall, these cases are an important reminder to the US government that legal avenues for accountability are not just available in the United States, and that US officials involved in the CIA program are not free and clear just because the US government has thus far been unwilling to bring cases.

However, as discussed below, European efforts at investigating the CIA program have faced political pressure from the US and actions by US authorities to block investigations. European governments will need to demonstrate greater commitment and persistence if these cases are to proceed to indictments and prosecutions.

European governments should also ensure that accountability extends to those non-US nationals who bear responsibility for torture and other serious abuses committed in connection with the CIA rendition, detention, and interrogation program. A study by the Open Society Justice Initiative (OSJI) in 2013 found that 54 foreign countries provided support of some form to the CIA program, with 21 of those countries being within Europe.[569] The active participation of European countries in the CIA program has been widely confirmed.[570] Each of these countries should ensure that thorough and impartial criminal investigations are carried out to establish the responsibility of not only US officials over whom their courts may have jurisdiction, but also their own nationals. Toward this end, European and other countries that may have been complicit or participated in the CIA program should request a copy of the full Senate report with minimal redactions.[571]They should also inform the US government that they have no objections to the report publicly naming their country.

A number of countries may be in a position to exercise jurisdiction over US and foreign officials for their role in serious abuses committed as part of the CIA program and related mistreatment of persons in detention. Victims and witnesses, and other relevant evidence, may be located within their jurisdiction, which may oblige national authorities to investigate and prosecute the offenses.

Germany may provide a useful model as to how prosecutorial authorities can be proactive under the principles of universal jurisdiction. German prosecutors now have the ability to conduct broad preliminary investigations known as “structural investigations.” These are aimed at cataloguing crimes (as opposed to focusing on specific individuals), gathering details about them, and identifying potential victims and witnesses and other evidence to facilitate future criminal proceedings before national courts or elsewhere.[572] This could help lay the groundwork for investigation of specific individuals should they enter Germany.

In addition, possible suspects from the US or elsewhere may be present in or travel to Europe or other countries that may have jurisdiction over them, thereby providing an opportunity for their arrest and, provided there is sufficient evidence, prosecution. National immigration, police, and judicial authorities should prepare for this eventuality, be vigilant to the identity of persons traveling to their countries, and work together to ensure that police and prosecutors are given an adequate opportunity to consider investigation and prosecution where suspects arrive on their territory. Human Rights Watch and four other nongovernmental organizations (NGOs) have sought a meeting of war crimes prosecutors from EU countries to discuss the Senate Summary and efforts to ensure accountability for CIA-related abuses.[573]

The ICC may also prove to be a path toward some accountability for US abuses committed in Afghanistan. The ICC is conducting a preliminary examination into alleged international crimes by all parties in Afghanistan. Should it decide to open a formal investigation in Afghanistan, it will need to consider including US abuses as part of its investigation.

Given the confidential nature of judicial investigations, particularly when cases are at an early stage, it is possible that judicial authorities in other countries have investigated or are pursuing similar investigations, but the information is not available publicly. The information provided below is therefore not necessarily an exhaustive list of all criminal cases that have occurred or are pending in foreign jurisdictions.

Investigations and Prosecutions of US Officials

Italy

In November 2009, a court in Milan convicted 23 Americans and two Italian military intelligence officers for aiding and abetting in the abduction of Egyptian cleric Hassan Mustafa Osama Nasr (known as Abu Omar). The cleric had been kidnapped as he was walking down the street in Milan in February 2003 in what is believed to have been a joint operation by the CIA and Italian military intelligence. He was allegedly put on a plane and flown to an air base in Germany and then on to Egypt, where he claims to have been repeatedly tortured.[574]

The case, which Italian prosecutors initiated in 2003 despite strong opposition from US authorities, was brought against 26 Americans—all but one of whom were CIA officers—and seven Italian military intelligence officers.[575] None of the Americans were ever arrested or present during the trial.[576] Criminal proceedings moved forward slowly, in part due to Italian authorities’ successive attempts to block the case due to concerns over its effect on US-Italian relations. The Italian government successfully challenged much of the evidence on the grounds that it might endanger national security, and refused to seek the extradition of the American defendants.

The trial court convicted 22 of the CIA agents, two of the Italian military intelligence officers, and a US air force colonel. It also handed down penalties ranging from five to eight years, with the CIA’s Milan station chief, Robert Seldon Lady, receiving the most serious sentence. The court ruled that the three other American defendants in the case were protected by diplomatic immunity, including the CIA’s Rome station chief, Jeffrey Castelli.[577] It also dismissed charges against the five remaining Italians in the case, including the former head of Italy’s military intelligence service, Gen. Nicolò Pollari, on the grounds that the evidence against them was protected by the state secrecy doctrine.[578]

In December 2010, the Milan appeals court upheld all of the convictions but increased the sentences given to the Americans.[579] In September 2012, Italy’s highest court affirmed the convictions but overturned the acquittal of the five Italians and ordered them to face a new trial.[580] In February 2013, two separate trials by the appeals court led to convictions of the five Italians and three US citizens who had previously been acquitted.[581] Italy’s highest court overturned the convictions of the five Italians in February 2014, again on the basis of the state secrecy doctrine. In March 2014, the same court upheld the three remaining CIA agents’ convictions.[582]

Regardless of whether any of the US nationals serves prison time, the case marked the first trial of US officials for CIA-related abuses post-9/11. Italian judicial authorities appear to have issued European Arrest Warrants, which are only valid in Europe, for all those convicted in absentia.[583] In July 2013, former CIA’s Milan station chief Robert Seldon Lady was detained briefly in Panama on an Italian arrest warrant, and the Italian justice ministry pursued an extradition request—the only time it has done so.[584] Panamanian authorities refused the extradition request and released Lady. In October 2015, Sabrina De Sousa, a former CIA agent convicted in the case, was detained by authorities on a European Arrest Warrant issued in Italy at an airport in Lisbon as she was trying to leave the country.[585] She was released from detention shortly thereafter and is out of custody while her extradition case is pending.[586]

Germany

Three criminal complaints have been filed in Germany. While Germany allows victims and NGOs to file criminal cases directly, the prosecution has wide discretion to decline to pursue them.[587] The federal prosecutor’s office declined to initiate an investigation in the first two cases, but has yet to decide on the third. In addition, state prosecutors issued warrants against 13 CIA agents in relation to the unlawful rendition of German national Khaled el-Masri from Macedonia in early 2004, but Germany has not taken further steps.

2004 Complaint

In November 2004, CCR[588] assisted four Iraqis in filing a criminal complaint against then-US Defense Secretary Donald Rumsfeld, former CIA Director George Tenet, and a number of other current and former senior military officials,[589] for alleged torture and other ill-treatment amounting to war crimes suffered at the hands of US armed forces in the Abu Ghraib prison in Iraq.[590] US officials expressed concern over the case, warning that “frivolous lawsuits” could adversely affect the US relationship with Germany.[591] Through the US embassy, Rumsfeld also informed German authorities that he would not take part in an upcoming Conference on Security Policy in Munich if the case proceeded.[592]

On February 10, 2005, just days before Rumsfeld was scheduled to speak at the security conference in Munich, the federal prosecutor’s office announced that it would not pursue an investigation.[593] The office justified its decision on the grounds of subsidiarity, asserting that there were no indications the US was refraining from investigating and prosecuting the crimes in the US. Emphasizing that the US had a closer connection to the alleged crimes, the federal prosecutor’s office said that it need not look at whether Rumsfeld was himself under investigation in the United States or whether the exact same crimes were being investigated.[594] ECCHR and CCR challenged the decision, but the appeals court declared the request for review inadmissible, including on the basis that the prosecutor did not abuse discretion in declining to move forward.[595]

In July 2006, the UN Special Rapporteur on the independence of judges and lawyers sent a letter to German authorities expressing concern over the prosecutor’s decision. Noting the “strong political pressure” exerted by the US and the questionable timing of the decision, the letter alleged a violation of the independence of the judiciary.[596] The Special Rapporteur underlined that there were no indications that US judicial authorities were actually investigating the alleged crimes, with the exception of low-ranking officers, or had any intention to look at criminal responsibility of senior military officials. He also took issue with the prosecutor’s cursory decision dismissing the complaint.[597]

2006 Complaint

In November 2006, just days after Rumsfeld had resigned as defense secretary, CCR[598] filed another complaint with the German federal prosecutor’s office on behalf of Guantanamo detainee Mohammed al-Qahtani and 11 Iraqis who had been held at Abu Ghraib.[599] The complaint targeted Rumsfeld, Tenet, and other current and former senior military officials,[600] but also included current and former government attorneys Alberto Gonzales, William Haynes, David Addington, John Yoo, and Jay Bybee.[601] Like the earlier complaint, it alleged that the defendants had committed war crimes by justifying, ordering, and implementing abusive interrogation policies that resulted in torture of the 12 individuals.

The complaint documented how no meaningful investigations had taken place in the US or Iraq and provided lengthy submissions. It was supported by numerous human rights and civil society organizations, international legal scholars, and a former UN Special Rapporteur on Torture. In addition, former Army Brig. Gen. Janis Karpinski, who had been a defendant in the 2004 case in relation to her role as commander of the 800th Military Police Brigade at Abu Ghraib, submitted written testimony in support and offered to appear as a witness.[602]

On April 27, 2007, the federal prosecutor’s office again decided not to open an investigation. This time the federal prosecutor focused less on the issue of subsidiarity and more on whether there were sufficient links to Germany to merit an investigation. She concluded that none of the suspects resided in Germany or could be expected to come there.

The prosecutor also concluded that any investigation was likely to be unsuccessful because US authorities would not cooperate with the case.[603] She said: “To resolve possible accusations, investigation on the scene and in the United States of America would be unavoidable. Because the German investigative authorities have no executive powers abroad, this could only occur through legal assistance. But such requests are obviously futile—especially if we consider the legal and security situation in Iraq.”[604]

The complainants filed a challenge with the court, asserting that an investigation could take place even in the absence of the accused, but the petition for review was again dismissed. The court held that, while the possibility of former US officials coming to Germany could not be excluded, it was not a sufficient basis to compel an investigation.[605]

2014 Complaint

On December 17, 2014, following the release of the Senate Summary, ECCHR filed a third complaint against Rumsfeld, Tenet, and other “alleged perpetrators in senior positions within the Department of Defense, the Department of Justice, the CIA and other departments” with German federal prosecutors.[606] Unlike the 2004 and 2006 complaints, this complaint has not been filed on behalf of specific victims. The allegations are similar to those contained in the earlier complaints, namely that US authorities conceived of and implemented a program of torture that was carried out by CIA, military, and other US officials.[607]

The federal prosecutor’s office has not yet decided whether to open an investigation. Since the 2004 and 2006 cases were dismissed, universal jurisdiction has gained growing acceptance in Germany, as evidenced by the creation of a specialized war crimes unit in 2009 and the opening of broad preliminary investigations—known as “structural investigations”—into grave crimes committed abroad, including in Libya and Syria, which have little direct link to Germany.[608] In addition, as discussed above, the federal prosecutor’s office has changed its internal policy and now only exercises discretion where a suspect is not ever likely to come to Germany and where no potential victims and witnesses can be identified in the country.[609] German officials told Human Rights Watch in March 2014, prior to the filing of the most recent complaint, that the earlier Rumsfeld cases might be decided differently now.[610] Victims and witnesses to certain US abuses committed in Iraq and Guantanamo are believed to be living in Germany. Federal prosecutors should open a structural investigation and take steps to gather and preserve evidence that could be used in later criminal proceedings in Germany or elsewhere.

Khaled El-Masri Case

In June 2004, Munich state prosecutors opened a criminal investigation into allegations that German national Khaled el-Masri had been a victim of the CIA rendition, detention, and interrogation program. El-Masri’s case was one of the most documented unlawful rendition and torture cases, and it was the first such case to be heard by the European Court of Human Rights (ECtHR).

In December 2003, Macedonian border guards arrested el-Masri while he was crossing by bus into Macedonia from Serbia. He was detained in Macedonia for several weeks and then turned over to CIA agents and flown to Afghanistan, where he was tortured for several months. Eventually the CIA dropped him off in Albania without charging him with any crime and he returned to Germany.[611]

In January 2007, Munich prosecutors issued arrest warrants for 13 CIA agents on charges of wrongful imprisonment and causing serious bodily harm to el-Masri.[612] The case was initiated at the state level, rather than the federal level, because the allegations did not include torture as a war crime.[613] The case strained US-Germany relations, with prosecutors citing lack of cooperation from US authorities.[614] US diplomatic cables released by WikiLeaks revealed that US authorities warned German officials that pursuing the arrest warrants and extradition of those accused would “have a negative impact on our bilateral relationship.”[615] In the end, the German government never sought the suspects’ extradition. While prosecutors have taken no further steps, the arrest warrants remain outstanding, which means that the suspects could face arrest if they travel to Germany or other European countries.[616]

On December 12, 2012, the ECtHR found that el-Masri had been tortured and held Macedonia responsible for his torture and ill-treatment both within the country itself and after his transfer to US authorities.

In December 2014, after the release of the Senate Summary, ECCHR wrote to the German Minister of Justice to urge Germany to request the extradition of the 13 CIA agents and to seek an apology and compensation for el-Masri from US authorities.[617] In July 2015 ECCHR filed a criminal complaint with the German federal prosecutor against Alfreda Bikowsky, a CIA agent connected to el-Masri’s CIA rendition, torture, and continued detention months after his mistaken identity had been realized.[618] The complaint was connected to its December 17, 2014 complaint against Tenet, Rumsfeld and others. In October it made another submission in support of the complaint.[619] Should the German federal prosecutor not launch a criminal investigation, ECCHR plans to file a criminal complaint against Bikowsky with the Munich state prosecutor that issued the arrest warrants for the 13 CIA officials charged in el-Masri’s case.[620]

France

Victims and NGOs have filed criminal complaints in France in connection with alleged torture and other abuses in Guantanamo, Iraq, and Afghanistan. Under French law, victims and other affected parties, including nongovernmental organizations, can file a criminal complaint directly with investigative judges rather than passing through prosecutors to ensure that a judicial investigation is opened.[621] An investigation remains pending in one case, but prosecutors declined to open an investigation against former Defense Secretary Donald Rumsfeld on the grounds that he had immunity.

Guantanamo Detainees Case

In November 2002, the parents of two French citizens who were detained at Guantanamo, Nizar Sassi and Mourad Benchellali, filed a criminal complaint before French courts alleging unlawful detention by US officials.[622] A judge in Lyon declined to investigate, which was upheld by an appeals court. In January 2005, however, France’s highest court reversed the decision, and an investigation was opened in June 2005.[623]

In June 2006, a third French citizen, Khaled Ben Mustapha, who had also been held at Guantanamo, joined the case, alleging that he had been a victim of kidnapping and torture by US officials.[624] In January 2012, the investigative judge submitted a formal request to US authorities for access to the Guantanamo Bay detention center, all documents relevant to the detention of the three French citizens, and the names of anyone who had contact with them during their detention.[625] The US never responded to the request.[626]

In February 2014, the former detainees’ lawyer filed an expert report aimed at establishing the criminal responsibility of former Guantanamo commander Geoffrey Miller and requested that Miller be subpoenaed to testify.[627] In April 2014, the investigative judges declined the request on the grounds that US authorities would not cooperate or make Miller available for questioning. The former detainees appealed this decision.[628] On April 2, the appeals court reversed the decision and ordered the lower court to summon Miller to explain his role in the alleged abuse of the former detainees.[629]

Rumsfeld Case

In late October 2007, on the eve of a visit by Donald Rumsfeld to Paris for an event on foreign policy, the International Federation for Human Rights (FIDH), ECCHR, CCR, and the French League for Human Rights filed a complaint with French prosecutors alleging that Rumsfeld bears criminal responsibility for torture and other ill-treatment committed in US-run detention facilities in Guantanamo, Iraq, and Afghanistan.[630] Former Army Brigadier General Janis Karpinski submitted written testimony in support of the complaint as she had in Germany a year earlier.[631] Rumsfeld traveled to Paris as planned and faced no judicial consequences.[632]

The following month, the Paris district prosecutor formally dismissed the complaint without addressing the merits. Relying on an opinion from the foreign ministry, he concluded that Rumsfeld had immunity from prosecution based on his former position as US defense secretary.[633] The NGOs urged the general prosecutor to reconsider this decision, but in February 2008 he confirmed the granting of immunity on the grounds that the alleged conduct could not “be dissociated” from Rumsfeld’s official function.[634]

The prosecutors’ decisions rested on an interpretation of the International Court of Justice’s (ICJ) decision in the Arrest Warrant (Democratic Republic of Congo v. Belgium) case and another decision by France’s highest court.[635] The ICJ ruled that certain foreign government officials are entitled to temporary immunity from prosecution by foreign states, even with regards to grave international crimes. Many advocates, including Human Rights Watch, interpret the judgment not to bar later prosecutions for grave international crimes, however. In addition, the prosecutors’ decisions to grant Rumsfeld immunity ignore contrary international precedent, including the Nuremberg and Pinochet cases, which have held that torture and war crimes cannot be legitimate functions of a government official, and numerous international tribunal statutes, which unequivocally state that official capacity does not exempt a person from criminal responsibility for grave international crimes.[636]

Spain

Spanish judicial authorities have opened three cases into alleged torture and other serious abuses, but all three have either been stayed or dismissed (appeals are pending in all three cases). US authorities vigorously opposed the cases.[637] US diplomatic cables in 2009 suggest that US embassy officials, joined by some members of Congress, tried to influence the Spanish judicial process in order to obtain the dismissal of the cases, and that Spanish officials bowed to pressure by US officials.

“The Bush Six”

In March 2009, the Association for the Dignity of Spanish Prisoners filed a criminal complaint against six former Bush administration lawyers, including Alberto Gonzales, David Addington, William Haynes, John Yoo, Jay Bybee, and Douglas Feith. The complaint alleged that the US government committed torture and war crimes against several former Guantanamo detainees, including five individuals who were either Spanish citizens or residents of Spain,[638] as a result of the legal advice provided by the six defendants.[639] Investigative judge Baltasar Garzón, who issued the historic arrest warrant against Pinochet in 1998, found the case admissible. However, following opposition from Spain’s Attorney General, Garzón submitted the case for reassignment to another judge.[640]

Since Spanish courts have subsidiary jurisdiction (meaning they can only hear cases in which the courts of the country where the crimes occurred have not initiated criminal proceedings), the new investigative judge sent a formal request to US authorities in May 2009 asking for confirmation of whether an investigation into the allegations was being conducted.[641] After the judge set a deadline for the US to respond,[642] US authorities finally answered on March 1, 2011, asserting that they had completed several prosecutions and that Assistant US Attorney John Durham was continuing his investigation into alleged detainee abuse. The US also claimed that there was no basis for prosecuting Yoo or Bybee as they had already been investigated and cleared of responsibility by an ethics body.[643] The Spanish judge stayed proceedings and sent the case to the US Department of Justice for further action asking only that the US inform it, at the relevant time, of the measures it ultimately may adopt as a result of the case’s transfer.[644] The Association for the Dignity of Spanish Prisoners, joined by two additional NGOs, challenged the decision but both the appeals court and the Supreme Court denied the appeal.[645] In March 2013, the Association filed a petition for review with the Spanish Constitutional Court, which remains pending.[646]

Guantanamo Detainees Case

In April 2009, just weeks after the “Bush Six” complaint had been filed, Judge Garzón opened a preliminary investigation into related allegations concerning Guantanamo. The investigation named no specific defendants, but focused on allegations put forward by four of the former Guantanamo detainees named in the “Bush Six” case: Hamed Abderrahman Ahmed, Lahcen Ikassrien, Jamiel Abdul Latif al Banna, and Omar Deghayes.[647] The Human Rights Association of Spain (APDHE) is a civil party in the case.[648]

In May 2009, Judge Garzón issued formal requests to US and UK authorities to determine whether any investigations were pending with respect to the four individuals.[649] Neither country responded.[650]

Meanwhile, in October 2009, Spain’s Parliament amended its laws to restrict jurisdiction to cases with a demonstrated link to Spain. Consequently, cases would only be admissible where the victim is a Spanish national, the suspect is present in Spain, or some other legitimizing link to the country exists.[651] The change in law did not mean an end to the Guantanamo investigation, however, as one of the victims was a Spanish citizen, another was a Spanish resident, and Spain had previously requested the extradition of all four in connection with an unrelated criminal case.[652] Even without these links, Judge Garzón found that jurisdiction would have existed because of Spain’s international obligations to investigate and prosecute both torture and war crimes.[653]

The public prosecutor appealed Garzón’s decision to proceed with the investigation, but the Supreme Court’s Criminal Chamber rejected the appeal.[654] In May 2010, the case was reassigned following Garzón’s suspension from his judicial function for having tried to investigate Franco-era abuses.[655]

In January 2011, CCR and ECCHR, both of whom later joined the case as formal parties,[656] requested that former Guantanamo commander Geoffrey Miller be subpoenaed to explain his role in the alleged torture of the detainees.[657] A year later, with still no response from US or UK authorities, the new judge on the case issued a ruling reaffirming the court’s jurisdiction over the case without deciding on the subpoena request.[658]

In March 2014, Spain’s Parliament again amended its law to restrict jurisdiction following a diplomatic row with China.[659] The new law introduced an extensive set of requirements related to the nationality of the suspect and victims and the suspect’s status in the country, placing Spain in breach of its international legal obligations to extradite or prosecute certain offenses like torture and war crimes.[660] Despite this change, the judge presiding over the Guantanamo case ruled, in April 2014, that the investigation should proceed in light of Spain’s obligations under the Convention against Torture and the Geneva Conventions.[661] Spain’s National Court upheld this decision in November 2014.[662]

However, in May 2015, in a case against Chinese officials involving abuses in Tibet, Spain’s Supreme Court issued a new decision interpreting in a more restrictive manner the legislative changes on universal jurisdiction.[663] Citing that ruling, on July 17, 2015, Spain’s National Court dismissed the entire Guantanamo case.[664] The complainants have lodged an appeal against the decision.[665]

CIA Flight Investigations

Spanish authorities launched a civil investigation in November 2005 into claims that CIA planes carrying detainees had made secret stopovers on Spanish soil, but concluded that the flights were legal.[666] Around the same time, a judge in Mallorca, where US planes are alleged to have landed, opened a criminal investigation. In light of the torture allegations, he deferred the case to the National Court. In June 2006, Judge Ismael Moreno of the National Court opened a criminal investigation targeting the 13 US officials who were on board the flight that rendered Khaled el-Masri, which allegedly stopped in Spain before continuing on to Macedonia to abduct el-Masri.[667] A group of Spanish lawyers and other professionals from Mallorca and the APDHE are civil parties in the case.[668] Later that year, media reports revealed that additional US planes had made stopovers elsewhere in Spain.[669]

The most challenging aspect of the case proved to be determining the identity of the US officials on the flight. A Spanish national police investigation identified a list of 13 suspects and, in May 2010, led to the issuance of arrest warrants for these individuals on charges of using false documents to enter the country.[670] Judge Moreno continued his efforts to confirm the suspects’ identities, including by sending judicial cooperation requests to German and UK authorities in October 2012.[671]

Judge Moreno later broadened the investigation to address whether four senior Spanish officials should also be held criminally responsible for authorizing US stopover flights in the country.[672] In November 2013, despite opposition from civil parties, prosecutors requested dismissal of both investigations.[673] Judge Moreno dismissed the investigation into the Spanish officials, and stayed the investigation into the CIA officials in September 2014. An appeals court upheld his ruling in November 2014 on the grounds that the allegations against the Spanish officials were insufficient to establish that they knew that the CIA detainees were being abused, and that Spanish authorities had—at least for now—exhausted all leads and been unable to conclusively identify the CIA agents involved.[674] The civil parties have appealed the case to the Supreme Court.[675]

Switzerland

In February 2011, CCR and ECCHR prepared criminal complaints against former President Bush on behalf of two persons who had allegedly been tortured during their detention at Guantanamo Bay. However, the complaints were never filed as Bush cancelled his trip to Geneva.[676]

Canada

In September 2011, CCR and the Canadian Center for International Justice (CCIJ) called on the Canadian minister of justice and attorney general to open a criminal investigation against former President Bush for his alleged role in authorizing and overseeing the “administration’s well-documented torture program.”[677] Bush was expected to go to Canada the following month to attend an economic summit.[678] A week before Bush’s planned visit, the NGOs publicly expressed their intention to assist torture survivors in filing a formal criminal complaint if the minister failed to initiate an investigation.[679] On October 20, 2011, the day of his expected arrival, CCIJ lodged a criminal complaint against Bush with the Surrey provisional court in British Columbia, where the summit was to be held.[680] Within hours, the prosecutor stayed the proceedings.[681] Bush attended the summit and no further steps were taken in the case.[682]

In April 2012, CCR and CCIJ reported the incident to the UN Committee against Torture.[683] The committee urged Canada to take steps to exercise universal jurisdiction over persons alleged to be responsible for torture but did not mention the Bush visit.[684]

In November 2012, the same two NGOs—acting on behalf of four persons alleged to have been victims of torture at US-run military facilities in Afghanistan and Guantanamo Bay—filed an individual complaint with the UN Committee against Torture, arguing that Canada had violated its international obligations by failing to arrest Bush.[685] In response, Canada asserted that it had insufficient evidence in its possession at the time to justify charging Bush and that it did not expect to receive assistance from US authorities.[686] Both parties have submitted additional responses to the committee. One was a letter from the NGOs alerting the committee to Bush’s planned visit to Toronto in May 2014.[687] However, no action was taken during Bush’s visit and the committee has not yet issued findings in the case.[688]

Investigations Focused on European Complicity

Poland

In March 2008, the district prosecutor’s office in Warsaw opened a criminal investigation into CIA-related abuses committed on Polish territory, although the scope of the investigation has never been disclosed.[689] The investigation appears to be limited to Polish involvement.[690] The investigation has languished for years, partly due to unexplained changes in staffing, the transfer of cases from Warsaw to another city, claims of inadequate cooperation from US authorities, and invocation of the “state secrets” doctrine.[691] In September 2015 the Polish prosecutor announced that the US rejected four further requests for documents and information, including requests for statements from witnesses still in US custody in Guantanamo.[692]

Three men who are held at Guantanamo Bay—Abd al-Rahim al-Nashiri, Zayn al-Abidin Muhammed Husayn (Abu Zubaydah), and Walid bin Attash—have been granted formal victim status in the case.[693] Fellow Guantanamo detainee Mustafa al-Hawsawi also sought victim status but was turned down.[694] Bin Attash and al-Hawsawi currently face charges before a US military commission for their alleged involvement in planning the September 11, 2001 attacks, and al-Nashiri faces charges for his alleged involvement in planning an attack against the USS Cole—a US Navy warship docked in a Yemen harbor in October 2000. Abu Zubaydah does not face any charges.

In March 2012, a confidential source reported to the media that former Polish intelligence chief Zbigniew Siemiątkowski had been charged in the case. Siemiątkowski acknowledged being questioned, but the prosecutor’s office refused to confirm whether he faces charges.[695] In early February 2013, the Polish minister of justice made a statement suggesting that the decision to charge Siemiątkowski had been made “hastily,” adding that the case “needs [to] be addressed with extreme restraint.”[696] After human rights groups expressed concern over the statement—in particular whether it revealed a lack of prosecutorial independence—the prosecutor general stated that there had been “no official confirmation that they [prosecutors] had charged anybody.”[697] Less than two weeks later, a Polish newspaper reported that the charges against Siemiątkowski would soon be dropped.[698] The prosecutor’s office confirmed that an investigation was underway but would not indicate whether it was looking into Siemiątkowski’s role.[699]

Al-Nashiri and Abu Zubaydah have both brought Poland before the ECtHR for its failure to investigate the abuses committed against them during their time in US custody. In July 2014, the ECtHR ruled that Poland had authorized a CIA black site to be used on its soil and that Polish authorities bore responsibility for the two men’s torture and unlawful rendition.[700] It found that Polish authorities had failed to properly investigate the abuses despite national authorities’ assertions that their 2008 investigation remained ongoing. The court ordered Poland to pay Abu Zubaydah and al-Nashiri €100,000 (about $112,000) in damages.[701] Poland sought to appeal the decision, but its request was denied.[702]

Following the release of the Senate Summary in December 2014, Polish prosecutors announced that they would request the full version of the committee’s study for their investigation.[703] They appear to have done so, but in June 2015 Polish judicial authorities said that the US was refusing to comply with the request.[704]

Lithuania

In January 2010, following a parliamentary investigation that confirmed the existence of two black sites and that Lithuanian airports and airspace had been used for CIA-related flights, the prosecutor general’s office opened a criminal investigation.[705] One year later, the case was abruptly closed for lack of evidence.[706] Prior to its discontinuance, Amnesty International and Reprieve had brought information to the attention of the prosecutor’s office, including allegations that Abu Zubaydah had been held in one of the country’s black sites and tortured.[707] Abu Zubaydah then filed an application against Lithuania before the ECtHR in July 2011.[708] The case is pending, and the European Parliament has since called on Lithuania to reopen its investigation in light of new evidence.[709]

In September 2013, a new complaint was filed by Redress and the Human Rights Monitoring Institute (HRMI) on behalf of another former CIA detainee, Mustafa al-Hawsawi, alleging that he too had been held and tortured by the CIA at a black site in the country.[710] In October 2013, the prosecutor’s office decided not to open an investigation. Redress and HRMI appealed this decision, and they secured a favorable decision by the Vilnius Regional Court in January 2014 that affirmed al-Hawsawi’s right to an investigation of his claims. In February 2014, the prosecutor general’s office opened a formal investigation.[711]

Following the release of the Senate Summary in December 2014, the prosecutor general’s office claims to have sent a formal request for legal assistance to US authorities.[712] In April 2015, it announced the reopening of its initial investigation and included al-Hawsawi’s claim in the investigation.[713] The investigation remains ongoing at the time of writing.

Romania

Successive Romanian governments have denied hosting a secret prison.[714] In May 2012, the Open Society Justice Initiative (OSJI) filed a criminal complaint with the Romanian general prosecutor on behalf of Abd al-Rahim al-Nashiri, alleging that he had been held at a black site within the country and tortured there.[715] The general prosecutor acknowledged the complaint, assigned it a case number, and said he would review it, but nothing has since happened.[716] OSJI subsequently lodged an application against Romania before the ECtHR.[717] The case is pending.

After the release of the Senate Summary, former Romanian president Ion Iliescu and former intelligence chief Ioan Talpes admitted that Romania did in fact host the site.[718] The current government claims to have no knowledge of the secret prison, but in December 2014 a ministry of justice official said that there was an ongoing judicial investigation in Romania into the allegations.[719] It is unclear whether this is the same case initiated by OSJI.

Macedonia

Despite strong evidence to the contrary, Macedonian authorities long denied any involvement in the rendition of Khaled el-Masri. In October 2008, el-Masri filed a formal request for a criminal investigation with the Skopje prosecutor’s office. The prosecutor took no steps in the case before the statute of limitations for the crimes expired.[720] In September 2009, el-Masri then filed an application against Macedonia before the ECtHR. On December 12, 2012, the ECtHR found in favor of el-Masri. The court found that he had been subjected to torture and ill-treatment both within Macedonia and after his transfer to US authorities, and held Macedonia responsible for its role.[721]

United Kingdom

In addition to a shelved public inquiry into allegations of UK complicity in the CIA torture program[722] and the settlement of several civil claims for damages,[723] UK police and prosecutors have opened three criminal investigations, one of which remains open, and established a joint panel to examine possible criminal cases, the status of which is unclear.

British Criminal Investigations

The UK government opened the first investigation, known as “Operation Hinton,” in November 2008, which focused on the alleged involvement of UK Security Service (MI5) officers in the rendition and torture of Binyam Mohamed by US authorities.[724] The Crown Prosecution Service concluded that UK officials had involvement in his case but that there was “insufficient evidence” to bring criminal charges. The second investigation, known as “Operation Iden” and opened in June 2009, looked into the actions of UK Secret Intelligence Service (MI6) officers who interrogated suspects at the US-run prison in Bagram, Afghanistan. It too was closed for “insufficient evidence.”[725]

In January 2012, a third criminal investigation—which has become known as “Operation Lydd”—was opened to look into allegations that UK security service officers from MI5 or MI6 were involved in the unlawful rendition and torture of former Libyan opposition figures Abdullah al-Sadiq (known as Abdul Hakim Belhadj) and Sami Mostefa al-Saadi.[726] Both men had filed complaints in November 2011 after the release of classified documents uncovered by Human Rights Watch in Libya that exposed UK officials’ role in their rendition.[727] The investigation appears to be moving forward, with the police having handed prosecutors a file of evidence in October 2014.[728] Also in January 2012, police and prosecutors announced the establishment of a joint panel to examine other allegations of UK complicity in US rendition and torture.[729] The status of the joint panel and any other potential investigations beyond the Libya case is unclear.[730]

Scottish Criminal Investigation

In May 2013, an online database[731] mapping CIA renditions worldwide revealed that airports in Scotland were used to refuel CIA planes used in renditions.[732] These revelations prompted Scottish police to open a criminal investigation, which was pending at writing.[733] The release of the Senate Summary brought renewed attention to the investigation and led Scottish police to request access to the full, un-redacted version of the report.[734]

Portugal

Information handed over by European parliamentarian Ana Gomes prompted Portugal’s general prosecutor’s office to launch a criminal investigation in February 2007 into US stopover flights that allegedly carried CIA rendition victims.[735] Prosecutors closed the investigation in May 2009 due to lack of evidence. Gomes tried to appeal the decision on the grounds that the investigation had been inadequate and had not included all relevant testimony, but the prosecutor’s office denied the request in September 2009.[736]

Potential Investigation by the International Criminal Court

In addition to the cases before national jurisdictions in Europe, the International Criminal Court (ICC) may be another potential forum for holding US officials accountable for post-9/11 abuses. In late 2014, the ICC prosecutor said that her office is considering whether to pursue an investigation into torture and other serious abuses allegedly committed by US armed forces in Afghanistan between 2003 and 2008.

This announcement came in the context of the preliminary examination into Afghanistan that the ICC prosecutor initiated in 2007.[737] Her jurisdiction is limited to war crimes, crimes against humanity, and genocide committed within the country or by Afghan nationals from May 1, 2003 onwards.[738] The main focus of the examination appears to be crimes committed by pro- and anti-government forces, including the Taliban, the national intelligence service, the police, and the army. However, the prosecutor is also looking at “alleged abuse of detainees committed by international forces.”[739]

In December 2014, just before the Senate Summary was released, a report on the ICC prosecutor’s investigative activities singled out US officials as potential targets: “In particular, the alleged torture or ill-treatment of conflict-related detainees by US armed forces in Afghanistan in the period 2003-2008 forms another potential case identified by the Office.”[740] The report says her office is looking at whether the “enhanced interrogation techniques” meet the threshold of gravity to fall within her jurisdiction and the “relevance and genuineness” of any steps to investigate and prosecute the alleged offenses by US authorities.[741] During a media interview in March 2015, the prosecutor said, “We’re looking at the [US Senate] report very, very closely. And we will determine what to do, especially if it relates to our jurisdiction in Afghanistan.”[742]

While the US has not ratified the Rome Statute and is not a party to the ICC, the court would still have jurisdiction over US nationals with respect to crimes committed in Afghanistan since Afghanistan has ratified the treaty and the abuses took place on Afghan soil. If the prosecutor finds that the crimes rise to the level of war crimes and that US prosecutorial authorities are not adequately investigating the alleged offenses, she could open a formal investigation.

The ICC should continue efforts to monitor whether US authorities are pursuing meaningful and effective criminal investigations and trials into detainee abuse allegedly committed by members of the US armed forces in Afghanistan between 2003 and 2008. If US authorities fail to pursue accountability for abuses and the alleged crimes meet the other criteria necessary for the ICC prosecutor to exercise jurisdiction in Afghanistan, her office should consider opening a formal investigation into US-related abuses as part of a broader investigation into crimes committed in Afghanistan.

Recommendations

To the US President

  • Support the Attorney General’s appointment of a special prosecutor to conduct a thorough, independent, and credible criminal investigation into the CIA rendition, detention, and interrogation program that examines the conduct of those who authorized and implemented torture and other abuse by the CIA, including conduct that may have purportedly been authorized.
  • Acknowledge wrongdoing and formally apologize to victims of torture conducted or authorized by the US. In the absence of congressional action, establish an independent body to administer claims and provide appropriate redress, including compensation and rehabilitation.
  • Declassify the full Senate Intelligence Committee Report on the CIA’s detention and interrogation program, redacting only what is strictly necessary to protect national security. Improve declassification procedures more generally to ensure that only truly sensitive sources and methods remain classified and that the declassification process proceeds more quickly.
  • Declassify entirely the CIA rendition, detention, and interrogation program rather than selective aspects or elements of it as is the current practice.
  • Support legislative initiatives to require all US government agencies, including the CIA, to use only interrogation techniques listed in the Army Field Manual on Intelligence Interrogations.
  • Instruct all relevant government agencies to initiate a review of their role in the CIA program as described in the full Senate Intelligence Committee report to identify mistakes made, lessons learned, and best practices going forward.
  • Institute reforms at the CIA that provide more open congressional hearings on CIA policy and practice, stronger CIA reporting requirements to Congress, greater oversight from other divisions of the executive branch, and a bolstered CIA Office of the Inspector General.

To the Department of Justice

  • The Attorney General should appoint a special prosecutor to conduct a thorough, independent, and credible criminal investigation and bring charges where warranted concerning CIA torture and other crimes. The investigation should look into the conduct of those who authorized and implemented the CIA program as well as those who went beyond what was authorized. In conducting such an investigation, ensure all relevant witnesses, including victims of the alleged torture and ill-treatment, are interviewed and all relevant physical evidence is collected and examined.
  • Do not invoke the state secrets privilege in civil litigation concerning US torture except when absolutely necessary to prevent genuine harm to US national security and, even then, apply the privilege as narrowly as possible. Use of the privilege should not prevent the provision of appropriate redress to victims of US torture.

To the US Congress

  • Enact legislation that would acknowledge wrongdoing, apologize, and provide redress, including compensation and rehabilitation, to victims of US torture and other abuse.
  • Enact legislation that would prohibit the CIA from holding individuals in detention except immediately after a lawful arrest and ensuring their prompt transfer to an authorized detention authority.
  • Revise Appendix M to the US Army Field Manual on Intelligence Interrogations to prohibit the use of abusive sleep and sensory deprivation techniques.

To Countries that Provided Support to the CIA Rendition Program

  • Ensure impartial and independent criminal investigations of complicity in torture and other criminal offenses allegedly committed in the country by national or US officials in connection with CIA renditions or interrogations, and prosecute those implicated in crimes.
  • Request a minimally redacted copy of the full Senate Intelligence Committee Report from the US government and provide it to prosecutorial authorities.
  • Inform the US government that country officials do not object to the country or its nationals being named or identified in any information released to the public related to the CIA’s rendition, detention, and interrogation program.
  • Press US authorities to initiate meaningful criminal investigations in the United States and prosecute those responsible for torture and other serious abuses since 9/11.

To All Foreign Governments

  • Exercise jurisdiction, including universal jurisdiction, as provided under domestic and international law, to investigate and, evidence permitting, prosecute US officials alleged to have been involved in criminal offenses against detainees in violation of international law.
  • When permitted under domestic law, gather evidence to facilitate future prosecution of US officials should such officials enter their territory.
  • Take measures to ensure that all relevant national agencies, including immigration, police, and prosecutorial authorities, are able to monitor, investigate, and prosecute US officials and others implicated in CIA torture should they enter the country.
  • Call for a side meeting of the European Network of Contact Points in respect of persons responsible for genocide, crimes against humanity, and war crimes (known as the EU Genocide Network) to discuss investigations of torture and other abuses by US officials since 9/11.

To Specific National Authorities in the Following Countries

France

  • Enforce the appellate court decision to issue a summons for former Guantanamo commander Gen. Geoffrey Miller and take all necessary steps to seek his appearance for questioning before French judicial authorities in connection with the ongoing investigation.

Germany

  • Federal prosecutors should open a “structural investigation” to gather all evidence of US-related abuses committed post-9/11 that is available within the country and that may be used in future criminal proceedings in Germany or elsewhere.
  • Request the extradition of the 13 CIA agents against whom arrest warrants have been issued in connection with the rendition of Khaled el-Masri.

Italy

  • Judicial authorities should pursue legal avenues that would allow its European Arrest Warrants for the 26 US nationals convicted in absentia in connection with the rendition of Hassan Mustafa Osama Nasr (Abu Omar) to remain valid;
  • The Ministry of Justice should pursue the extradition of all 26 Americans and afford them a retrial if they are extradited.

Lithuania, Macedonia, Poland, and Romania

  • Prosecutors should conduct impartial and independent criminal investigations of complicity in torture and other criminal offenses allegedly committed in their countries by national and US officials in connection with CIA renditions or interrogations, and prosecute those implicated in crimes. Such investigations should include national and US government officials.

Portugal

  • Prosecutors should reopen criminal investigations in connection with CIA torture in light of the Senate Summary.

Spain

  • Judicial authorities should reopen the criminal investigation in the “Bush Six” case because the US Department of Justice has taken no further steps to investigate and prosecute those alleged to be responsible for abuse of detainees at Guantanamo.
  • Judicial authorities should ensure that the second criminal investigation into alleged abuse of detainees at Guantanamo proceeds based on the Spanish nationality of one of the victims.

United Kingdom

  • Prosecutors should conduct impartial and independent criminal investigations of complicity in torture and other criminal offenses allegedly committed in the country by national and US officials in connection with CIA renditions or interrogations, and prosecute those implicated in crimes.
  • Scottish police should expand their ongoing criminal investigation into CIA rendition flights to include US officials.

To the European Parliament, the Parliamentary Assembly of the Council of Europe, and UN Experts and Bodies

  • Monitor the implementation of recommendations made in prior reports to countries identified as having supported the CIA rendition, detention, and interrogation program.
  • Continue to call on countries that supported the CIA program to investigate and prosecute all those responsible for CIA torture and other abuses in their country, including national and US officials.
  • Encourage police and judicial authorities in different countries to strengthen cooperation with respect to ongoing or future investigations and prosecutions of CIA torture and other offenses.
  • Call on the European Genocide Network to convene a side meeting to discuss investigations of torture and other abuses by US officials since 9/11.
  • Press US authorities to initiate meaningful criminal investigations and prosecute those responsible for torture and other serious abuses committed since 9/11.

To the Office of the Prosecutor of the International Criminal Court

  • Continue to monitor whether US authorities pursue credible and impartial criminal investigations and prosecutions of detainee abuse allegedly committed by members of the US armed forces in Afghanistan between 2003 and 2008.
  • Consider opening a formal investigation into US-related abuses in Afghanistan if no criminal proceedings take place in the US and other relevant criteria are met to establish jurisdiction.

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