U.N. Expert: In Wake of Intel Report, Let's Prosecute Bush-era Criminals

Posted: Dec 09, 2014 5:00 PM

According to skeptics, there are several problems with the Senate Intelligence report released earlier today. First of all, Republicans declined to partake in the investigation. This raises eyebrows right off the bat. Second, the timing of the report's release was influenced by politics. Third, "no CIA officers” were reportedly interviewed about their involvement in extracting information from detainees. And lastly, the report is heavily redacted and therefore the names of CIA operatives allegedly involved in the program are not publicly known.

All that notwithstanding, a “U.N. Human rights expert” wants to see someone in the Bush administration held accountable:

A U.N. human rights expert said a report that the U.S. Senate released on Tuesday revealed a "clear policy orchestrated at a high level within the Bush administration" and called for prosecution of U.S. officials who ordered crimes, including torture, against detainees. Ben Emmerson, United Nations special rapporteur on human rights and counter-terrorism, said senior Bush administration officials who planned and authorized crimes must be prosecuted, along with as CIA and other U.S. government officials who committed torture such as waterboarding.

"As a matter of international law, the U.S. is legally obliged to bring those responsible to justice," Emmerson said in a statement issued in Geneva. "The U.S. Attorney General is under a legal duty to bring criminal charges against those responsible." The CIA routinely misled the White House and Congress over its harsh interrogation program for terrorism suspects, and its methods, which included waterboarding, were more brutal than the agency acknowledged, a Senate report said on Tuesday.

Perhaps. But will he? In a word, no:

The release of the Senate report on CIA interrogation techniques prompted the Justice Department to say that it stands by its decision not to bring criminal charges after its own probe five years ago. "That review generated two criminal investigations, but the Department of Justice ultimately declined those cases for prosecution, because the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt," the agency said in a statement Tuesday.

Indeed, before the report was even released, the New York Times reached a similar conclusion:

Q.Will the Senate report lead to the prosecution of anyone for torture or other crimes?

A. Highly unlikely. The Justice Department conducted a limited review of the interrogation program, as well as the C.I.A.'s destruction of video recordings of waterboarding and other interrogation sessions, but brought no criminal charges. Mr. Holder had directed prosecutors to consider charges only against those who engaged in unauthorized activities, since the use of the brutal interrogation methods was approved by C.I.A. leaders and the George W. Bush White House.

But “highly unlikely” doesn't necessarily mean “impossible.” TIME, for instance, did some digging and discovered some lawyers aren't totally convinced all alleged torturers will escape punishment:

the Senate report could be a breakthrough in cases that have dragged on for years in the U.S. and Europe — and could pave the way for fresh legal action against the CIA’s top officials for permitting torture. “The gaps have been between the CIA agents involved and the higher-ups conducting this policy,” says Wolfgang Kaleck, a lawyer and director of the European Center for Constitutional and Human Rights in Berlin, which has brought criminal cases against the U.S. military and CIA agents in Germany, Switzerland, Spain and France. Kaleck says lawyers will now study the Senate report for signs that the coercive tactics were a policy directed from the agency’s top levels, rather than simply the actions of errant employees. “It would hopefully allow us to argue for command responsibility for torture,” he told TIME on Tuesday. …

[L]awyers say the very fact that the agency’s torture tactics are now written into an official U.S. document could make it far easier for them to argue their case in court. This is especially true in countries that are close allies in the U.S.’s anti-terrorism campaign, and which have tried to block cases from being heard on the grounds of political sensitivities.

Nonetheless, the chances of public trials taking place here in the U.S. or anywhere else are exceedingly improbable, especially because -- as journalist Richard Engel explains -- the whole report is essentially an exercise in redistributing blame and "rewriting history."