Kicking and screaming: CIA declassification review of secret detention report awaited as global day against torture approaches

June 23, 2014

Kicking and screaming: CIA declassification review of secret detention report awaited as global day against torture approaches

If words were all it took to end torture, we could be a lot more confident that the torturer is being put out of business. The USA is a case in point. Here is a country which ratified the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in October 1994 and whose three presidents since then have proclaimed in no uncertain terms that the USA is committed to leading the global struggle against torture.

Signing the Torture Victims Relief Act into law in 1998, for example, President Bill Clinton said that the USA would "continue its efforts to shine a spotlight on this horrible practice wherever it occurs, and we will do all we can to bring it to an end". Five years later, on 26 June 2003, President George W. Bush proclaimed that while "torture continues to be practiced around the world by rogue regimes", the USA was "committed to the worldwide elimination of torture", and was "leading this fight by example". He called on "all governments to join with the United prohibiting, investigating, and prosecuting all acts of torture". Exactly a year later, he asserted that the USA had ratified UNCAT as part of its commitment to "building a world where human rights are respected and protected by the rule of law". In fighting terrorism, he said, "we will not compromise the rule of law"; torture "is wrong wherever it occurs, and the United States will continue to lead the fight to eliminate it everywhere".

When President Bush made those statements, the Central Intelligence Agency (CIA) was already running a secret detention program under authorization he himself had signed on 17 September 2001. Indeed, according to the 2014 memoirs of the chief CIA lawyer from that time, 2003 and 2004 were years in which this program was "growing like Topsy", with officials "agree[ing] to continue administering EITs ["enhanced interrogation techniques"] to new, deserving Al Qaeda candidates coming into CIA custody". In his own memoirs published in 2010, the former president had claimed that in 2002 and 2003 he specifically authorized the CIA's use of "water-boarding" (effectively mock execution by interrupted drowning) in the case of two detainees against whom this torture method was then used. His claim should have been met by criminal investigation. None followed.

During the lifetime of the CIA's "high-value detainee" program, scores of individuals were subjected to enforced disappearance – held incommunicado in solitary confinement at undisclosed locations, some of them for years, their fate and whereabouts unknown to their families and the public. Among the EITs authorized were prolonged sleep deprivation, stress positions, confinement in a box, water-boarding and various other forms of physical and mental assault. "Unauthorized" techniques were also used.

Abd al Rahim Hussayn Muhammad al Nashiri, now facing capital trial by military commission at Guantánamo, was held for four years in secret CIA custody before being transferred to the naval base in 2006. At a pre-trial session in April this year, the defence presented an expert on the treatment of torture survivors who had assessed him. Using UNCAT's definition of torture, she testified that "Mr al Nashiri has suffered torture, physical, psychological and sexual torture" and that he is suffering chronic post-traumatic stress disorder. The US government had already confirmed that Abd al Nashiri had been subjected to water-boarding and other EITs in secret CIA custody, as well as threats or even mock execution with a handgun and power drill. It is now intending to pursue his actual execution, even as it fails to bring to justice those responsible for his torture and enforced disappearance.

The secret detention program was terminated under an executive order signed by President Barack Obama in January 2009. On 24 June 2011, as his predecessor had done, he reiterated the USA's commitment to UNCAT and the global struggle against torture. As "a nation that played a leading role in the effort to bring this treaty into force", he said, "the United States will remain a leader in the effort to end torture around the world". He was silent on the question of accountability. Yet a government is required not only to prevent torture, but also to investigate and bring to justice those who authorize or carry it out. The President's silence reflected the USA's systemic and active failure to end the impunity enjoyed by those who authorized and carried out crimes under international law in the name of countering terrorism. The USA thus remains in serious violation of its international law obligations.

The Committee against Torture is the expert body established under UNCAT to oversee compliance with the treaty. It has said that "in addition to the obligations of investigation and criminal prosecution under articles 12 and 13 [of UNCAT]", satisfaction – one possible form of reparation for victims of human rights violations – should include remedies such as "verification of the facts and full and public disclosure of the truth"; "judicial and administrative sanctions against persons liable for the violations"; and "public apologies, including acknowledgement of the facts and acceptance of responsibility". The Committee further emphasised that "A State's failure to investigate, criminally prosecute, or to allow civil proceedings related to allegations of acts of torture in a prompt manner, may constitute a de facto denial of redress and thus constitute a violation of the State's obligations under article 14" of UNCAT.

The USA will appear before the Committee against Torture in Geneva in November 2014, around the 20th anniversary of the USA's ratification of UNCAT entering into force and shortly before the 30th anniversary of the treaty itself (it opened for signature on 10 December 1984). The Committee is unlikely to be impressed by the response it has received to its request for information on the state of accountability for what occurred in the CIA program. For the US administration has only been able to report that the Department of Justice's "preliminary review" into CIA interrogations had concluded in 2011 that no further investigation was warranted, and that the criminal investigation into two deaths in CIA custody was closed in 2012 without anyone being charged.

The administration could have added that, likewise, no charges have been filed against those responsible for destroying videotapes of interrogations of detainees in CIA custody, including recordings of water-boarding sessions. Yet the destruction of the tapes may have concealed crimes; concealing evidence of a crime may constitute criminal complicity; and complicity in torture is expressly recognized as a crime under international law. Meanwhile, US federal judges have effectively turned away from allegations of enforced disappearance, torture and other ill-treatment when confronted by them and the administration has successfully blocked the pursuit of judicial remedy through invocation of state secrets and other measures. In 2012 the European Court of Human Rights pointedly noted that "the concept of 'State secrets' has often been invoked to obstruct the search for the truth", when it ruled in the case of a CIA rendition victim.

"We expect accountability here at home too", said US Secretary of State John Kerry at the February 2014 launch of the USA's human rights reports, condemning impunity for human rights violations in other countries. Yet it seems that the USA will have to be dragged, kicking and screaming, into fulfilling its own obligations on truth, remedy and accountability in relation to the human rights violations committed in the CIA program.

UNCAT came into force on 26 June 1987, and the above proclamations by Presidents Bush and Obama were to mark International Day in Support of Victims of Torture, 26 June. In addition to the question of whether there will be a presidential statement this year, we are also awaiting publication of the summary of a report by the US Senate Select Committee on Intelligence (SSCI). The report is of the SSCI's review into the CIA secret detention program. According to its Chairperson, it contains "details of each detainee in CIA custody, the conditions under which they were detained, [and] how they were interrogated". It is logical therefore to believe that the report contains detailed information about human rights violations, including the crimes under international law of torture and enforced disappearance.

On 3 April 2014, the SSCI voted to submit for declassification the 480-page summary of its updated 6,600 page report, plus its findings and conclusions. The CIA is conducting the declassification review and has said that it will complete the review by 29 August 2014. Precisely when the summary will be published, and how much of it, remains to be seen. If the SSCI and the CIA disagree on how much the public can see, there may yet be further delay.

The CIA wants to put the secret detention program behind it, says its current Director. At the same time, the administration emphasises the "former" or "historical" status of this program. However, no line can be drawn under the program while the injustices and impunity associated with it continue to fester. The distance the USA has to travel to meet its accountability obligations under UNCAT and other international instruments will again stand in stark relief on 26 June.

History repeats itself when its lessons are ignored. Without the necessary investigations, prosecutions, reparations, transparency and legislation, President Obama's executive order of 22 January 2009 prohibiting long-term secret detention and "enhanced interrogation techniques" may yet come to be seen as no more than a paper obstacle if and when any future US President decides that torture or enforced disappearance are once again expedient for national security. There also remains concern about what treatment can be authorized in interrogations today.

As an important step toward preventing recurrence of the human rights violations that occurred in the CIA program, the USA must end the secrecy, impunity and obstruction of remedy associated with that now terminated program. As part of ending the secrecy and establishing the truth, the full SSCI report, not just its summary, should be declassified and made public. Even publication of the full report will not be enough, however. There must be full accountability for the crimes under international law committed in the CIA program, and victims of torture and other human rights violations must have genuine access to meaningful redress.

If President Obama does speak out against torture on 26 June, this time he should point to the USA's international obligations on truth, accountability and remedy. At the same time, he must recognize that words alone will never eradicate torture or ensure accountability – whether those words are contained in a treaty or come from the mouth or pen of a government official, or indeed are contained in a Senate report. In the end, it is actions that count.