SUMMARIES ARE NOT ENOUGH. FULL TRANSPARENCY REQUIRED
The full updated SSCI report of its review into the CIA secret detention program consists of three volumes, runs to more than 6,600 pages, and has over 37,000 footnotes. According to the Committee's Chairperson, Senator Dianne Feinstein, the report contains "details of each detainee in CIA custody, the conditions under which they were detained, [and] how they were interrogated". In other words, given what we already know about the program, it is logical to believe that it contains information about human rights violations, including the crimes under international law of torture and enforced disappearance.
On 3 April 2014, the SSCI voted 11-3 to submit for declassification the summary of the report and its 20 findings and conclusions. This is to be welcomed, as was Senator Feinstein's request that these documents be declassified "quickly and with minimal redactions". But it is a first step only. The full report remains classified and out of public view – held, according to Senator Feinstein, "for declassification at a later time". She said that the SSCI's review found that more than 100 detainees were subjected to the CIA detention program, uncovered "shocking" facts, "exposes brutality", and "chronicles a stain on our history that must never be allowed to happen again".
A list said to be of the SSCI's 20 findings was then leaked. A number of the items on this list addressed the Committee's findings that the CIA had provided inaccurate information about the program to the Department of Justice and avoided or impeded oversight by the White House, Congress and the agency's own Office of Inspector General. Others accuse the CIA of ignoring contemporaneous internal objections or critiques of the program, and also of manipulating the media by "coordinating the release of classified information, which inaccurately portrayed the effectiveness of the agency's enhanced interrogation techniques".
Other of the leaked findings pointed more directly to human rights violations. For example, two of them reported that the SSCI had found that the CIA's use of "enhanced interrogation techniques" and "conditions of confinement for CIA detainees" had been "brutal and far worse that the agency communicated to policymakers".
Amnesty International calls for the full report to be declassified as a matter of priority – with redactions only where strictly necessary– and any information that pertains to human rights violations, including crimes under international law, published. The USA's international obligations on truth, accountability and remedy demand this. And it would be consistent with the Obama administration's commitment made more than five years ago to an "unprecedented" level of transparency in the stated interest of promoting accountability.
Torture and enforced disappearance were prohibited under international law long before 9/11, regardless of the sophistry of Bush administration lawyers and other officials who gave the green light to the CIA to operate its "high value detainee" (HVD) program and the "enhanced" interrogation techniques and detention conditions employed in it, and regardless of who within US officialdom knew what about the program and when they knew it.
Certain assertions that the HVD program "saved lives" or led to useful intelligence appears to have contributed to reducing domestic calls for accountability – and has been the subject of division on the SSCI itself – but whether or not these claims are true, any such rationalizations for crimes under international law are illegitimate.
Whether torture or enforced disappearance are effective or not in obtaining useful information is irrelevant to the question of whether they are lawful – they are absolutely banned in all circumstances – or to whether an individual responsible for these crimes is to be investigated or prosecuted. The USA has an international legal obligation to ensure full accountability for crimes under international law, genuine access to remedy for those subjected to them, and the whole truth about the human rights violations committed in and around this program.
This will require a U-turn on the part of the US authorities, given that impunity, lack of remedy, and an absence of truth have been the order of the day for years. Even the SSCI vote to declassify its summary report was not couched in terms of a need for accountability. Rather than any reference to the crimes under international law that were committed in the CIA program, for example, Senator Dianne Feinstein referenced instead the CIA's "serious mistakes". Her emphasis on future prevention – while an important aspect of US obligations – appears to come at the expense of accountability.
This eye on the future while turning a blind eye to impunity should come as no surprise. It was only a matter of days after the SSCI review was announced in early March 2009, that the question of criminal accountability was promptly sidelined. Just a month after he was sworn into office as the new Director of the CIA in February 2009, Leon Panetta announced that he had been assured by the Chair and Vice Chair of the SSCI that the goal of the review was to inform "future policy decisions" rather than "to punish". Here Director Panetta was echoing the forward-leaning orientation on this issue of the President who had nominated him, President Obama. In May 2009, the President expressed his belief that
"our existing democratic institutions are strong enough to deliver accountability. The Congress can review abuses of our values, and there are ongoing inquiries by the Congress into matters like enhanced interrogation techniques. The Department of Justice and our courts can work through and punish any violations of our laws".
Anything else, the President suggested, including an independent commission of inquiry, would "distract us from focusing our time, our efforts, and our politics on the challenges of the future."
The Department of Justice in 2012 announced the closure of its limited investigation into CIA interrogations, without any criminal charges being referred against anyone. Earlier, no charges had been levelled against those responsible for destroying videotapes of interrogations of detainees in CIA custody, including recordings of water-boarding sessions. Federal judges have effectively turned away from allegations of enforced disappearance, torture and other ill-treatment when confronted by them. Release of the SSCI review into the CIA program now looks set, at least for the time being, to be restricted to the summary report, and from the outset the CIA had been assured that the SSCI was not interested in accountability for past conduct. The only reference to accountability on the leaked list of SSCI findings mentioned above was one that asserted that "CIA personnel who were responsible for serious violations, inappropriate behaviour, or management failures in the program's operation were seldom reprimanded or held accountable by the agency".
And so, more than a dozen years after the CIA began its secret detention operations, the institutions of the USA have singularly failed to prove themselves "strong enough to deliver accountability". It is not because they are incapable of such delivery, it is because officialdom has lacked the political will to bring it about. "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 on other countries. Sitting back and "expecting" accountability to happen is never enough. Accountability must be pursued and enforced.