On Monday night the confidential report of the International Committee of the Red Cross on the CIA’s secret detention and interrogation program was published on the website of the New York Review of Books. The report confirms previous allegations about CIA abuses against detainees. Unlike earlier reporting, however, the document is based on irrefutable first hand information: interviews with detainees and U.S. officials. The document describes in stark detail the CIA’s use of forced standing, sleep deprivation, prolonged isolation, assaults, and waterboarding. It also discloses the participation of CIA medical personnel in torture.
Some revelations in the ICRC report have already become known through the reporting of journalists Mark Danner and Jane Mayer. As a result, press accounts have focused on the fresh news of medical personnel supervising and overseeing abuse. But other important facts about the report have been overlooked that make the question of torture not simply a matter of the past.
Since the basic facts about their involvement in the CIA interrogation program are now known, Panetta’s actions are increasingly looking like a cover-up.
The New York Times reported that Leon Panetta, the current CIA director, has taken the position that “no one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.” Yet a number of CIA officials implicated in the torture program not only remain at the highest levels of the agency, but are also advising Panetta. Panetta’s attempt to suppress the issue is making Bush’s policy into the Obama administration’s dirty laundry.
Take Stephen Kappes. At the time of the worst torture sessions outlined in the ICRC report, Kappes served as a senior official in the Directorate of Operations—the operational part of the CIA that oversees paramilitary operations as well as the high-value detention program. (The directorate of operations is now known as the National Clandestine Service.) Panetta has kept Kappes as deputy director of the CIA—the number two official in the agency. One of Kappes’ deputies from 2002-2004, Michael Sulick, is now director of the National Clandestine Service—the de facto number three in the agency. Panetta’s refusal to investigate may be intended to protect his deputies. Since the basic facts about their involvement in the CIA interrogation program are now known, Panetta’s actions are increasingly looking like a cover-up.
Another overlooked fact is this: the ICRC report is an important legal document that contains well-sustained allegations of criminal conduct with legal significance. Unlike earlier claims in books, magazines, and newspapers, the ICRC’s allegations are official notices from a legally recognized entity. The ICRC, after all, is not Human Rights Watch, the Washington Post, or The New Yorker, all of which have reported on the CIA’s secret prison program. The ICRC is an official entity recognized under the Geneva Conventions and various other earlier international treaties relating to armed conflict and prisoners of war. The ICRC is specifically tasked under the Geneva Conventions to visit prisoners and communicate with detaining powers to uphold the conventions’ spirit and purpose. Its interpretations and statements on matters of international law are held as legally authoritative. As such, the ICRC’s allegations have legal significance beyond previous disclosures. In effect, the document itself is evidence in a criminal case.
Note in particular the report’s date, February 14, 2007—Valentine’s Day. On that date, the U.S. government was put on notice about the allegations of CIA torture. (The ICRC also wrote to the U.S. governments about the issue of disappearances at several points in 2003-2006.)
Under international law—the Geneva Conventions, the Convention against Torture, and basic precepts of customary international law—the United States has a positive obligation to investigate and prosecute persons alleged to have committed torture and other violations of the laws of war. As of Valentine’s Day 2007, and possibly earlier, the U.S. government was obligated to investigate and prosecute the abuses detailed in the report. The United States’ failure to do so is a recurring breach of international law. If the Spanish case against six high-level Bush administration officials accused of authorizing torture proceeds, the Red Cross report—among other documents—may be entered as evidence. Further international prosecutions that the U.S. is obligated to respect may go down the chain of command to Panetta’s deputies.
The ICRC report does not contain information about the identities of CIA personnel involved in the program, although there are descriptions of some individual interrogators; nor does it discuss the involvement of senior government officials in the program.
Nonetheless, footnote 9 reveals that the ICRC was informed by the then-director of the CIA, Michael Hayden, that interrogation plans for detainees were submitted to the “CIA headquarters” for approval and as of 2007 were approved by “the Director or Deputy Director of the CIA.” It is likely that this approval process existed at earlier points in 2002-2006.
This is more than an interesting detail. In fact, it could implicate several high-level CIA officials in torture, including previous CIA directors George Tenet (resigned 2004) and Porter Goss (resigned 2006), as well as deputy directors John McLaughlin (resigned 2004) and Albert Calland (resigned 2006). These CIA officials are no longer serving. Kappes, Sulick and others are still there.
Panetta’s refusal to endorse investigations and prosecution is based in part on opinions issued in memos in 2002 to 2003 from the Bush administration’s Justice Department Office of Legal Counsel to the effect that the CIA’s interrogation tactics were legal.
The OLC memoranda, however, were highly controversial even within the Bush administration, and today there are almost no attorneys or academics in the United States who defend their reasoning. Parts of the memoranda were withdrawn in 2005 and the Obama administration has repudiated their contents. But the memos were on the books for a time and conventional wisdom among academics as well as some Obama officials is that it would be difficult to prosecute a CIA officer who relied on legal assurances contained in them. In criminal law there are legal defenses to prosecution when a government agent, in good faith, relies on an official legal interpretation as to what is or is not legal and then commits otherwise illegal activity. (To take an example: It would not be appropriate to prosecute an undercover DEA agent if he smoked marijuana with drug dealers as part of efforts to gain their trust, especially if the agent were told by a Department of Justice lawyer that it was legal to do so.)
But Panetta’s “reliance on counsel” argument is off base. First, some of the worst torture that occurred as part of the CIA program occurred in the case of Abu Zubaydah—and most of that abuse occurred before the relevant OLC memoranda were even written.
Second, the reliance defense is not an absolute shield to prosecutions: it is a defense available to individual defendants on a case-by-case basis. A court must decide, from case to case, whether the defense applies.
And, ultimately, the reliance in question must be in good faith. Prosecutors may be able to show in higher-level cases that officers like Tenet, Goss, and others believed that the memoranda were flawed and therefore were not acting in good faith. Moreover, if prosecutors can show that a reasonable attorney would or should have known the memoranda were incorrect as a matter of law, they might be able to prosecute attorneys within the White House and CIA—such as former OLC attorney John Yoo and CIA Acting General Counsel John Rizzo—on grounds that by writing or promulgating the memoranda they participated in a criminal enterprise aimed at allowing the President and his staff, and the CIA, to evade federal criminal law.
Of course, such investigations are politically tricky. In order to avoid being tainted, President Obama might appoint a special prosecutor, fire implicated CIA officials (there are plenty of CIA rank and file who would be glad to see them go), and wash his hands of political fallout. In any case, he has to do something. Even if Panetta wishes it, the torture scandal is not going away.
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John Sifton is a private investigator and attorney based in New York City. His firm, One World Research, carries out research for law firms and human rights groups, including in South Asia, the Middle East and North Africa. He has conducted extensive investigations into the CIA interrogation and detention program.
