CIA torture report unlikely to spark criminal prosecutions

Chances are slim that the U.S. will launch criminal prosecutions as a result of the Senate report into the CIA's brutal interrogation techniques, despite calls for the individuals involved to be held accountable. 

But some civil rights organizations believe the perpetrators and architects of these interrogation tactics could face charges abroad.

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"If I were a CIA interrogator who had tortured a prisoner in some detention site somewhere, I would be very afraid of leaving the U.S.," said Wells Dixon, a senior attorney at the Center for Constitutional Rights. "I'd be afraid of arrests and prosecution for torture if I were to go to Canada or Europe or Latin America. I think there is an increasing likelihood of arrest and prosecution." 

The politics are so fraught that there's nobody in either party that is going to carry the flag for prosecution.— Matthew Baum, professor of public policy at Harvard

"It's not just the people who carried out the acts of torture, but those who authorized it, even at the highest level. 

"If I was vice-president Cheney, who has bragged about authorizing torture, I'd be concerned about this as well," Dixon said.

The report, which looked into tactics used by the Bush administration against suspects following the Sept. 11, 2001, attacks, revealed that prisoners were threatened with death, subject to sleep deprivation, slapped and slammed against walls. Three detainees faced the simulated drowning technique known as waterboarding.

A number of civil rights and human rights organizations have called for charges to be laid in the wake of the report. Ben Emmerson, the UN's special rapporteur on counterterrorism and human rights, said that CIA and other U.S. officials who used waterboarding and other torture techniques must be prosecuted.

Anthony Romero, the executive director of the American Civil Liberties Union, suggested in a New York Times op-ed that President Barack Obama should actually pardon former president George W. Bush and some of his top officials, as an acknowledgement that crimes were committed and to ensure they wouldn't happen again.

Mandatory obligations to prosecute

Dixon said that through the Convention Against Torture, there are mandatory obligations under international law to prosecute the offenders — not just those who carried out the acts but those who gave authorization. 

The Justice Department had previously launched narrow investigations into some of the actions of the CIA related to the interrogations, but no criminal charges were laid, suggesting another investigation is improbable.

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"Given that the Department of Justice already investigated these issues and declined to prosecute, I think it is extremely unlikely that charges would be forthcoming," said Charles Dunlap, a law professor and the executive director of the Center on Law, Ethics and National Security at Duke University.

And there seems to be little political interest to prosecute. Senate Democrats who authored the CIA report have been quiet on calls for charges. Meanwhile, Obama suggested it was time to move ahead.

"Rather than another reason to refight old arguments, I hope that today’s report can help us leave these techniques where they belong — in the past," Obama said in a statement following the report's release.

With the Republicans set to control Congress and with Democrats cautious of looking soft on national security, it's difficult for Democrats to push too hard, said Matthew Baum, a professor of public policy at Harvard University's John F. Kennedy school of government.

'Rarely an incentive to escalate'

"Especially with national security scandals, there is rarely an incentive to escalate to the level of criminal justice. The politics are so fraught that there's nobody in either party that is going to carry the flag for prosecution, at least nobody in national office."

Dixon agreed that for political reasons, it's unlikely there will be prosecutions in the U.S., at least in the near future.

But as the U.S. distances itself from prosecuting these actions, foreign nations, who are also signatories to the Convention Against Torture, are more likely to undertake these investigations, Dixon said.

"The U.S. has an obligation to prosecute. But if the [U.S.] is unwilling or unable, that mandatory obligation shifts to other nations," Dixon said.

Dixon pointed out that in 2009, an Italian court convicted 23 Americans in absentia in the 2003 kidnapping of an Egyptian cleric from a Milan street. The case was the first trial involving the CIA's extraordinary rendition program. The accused — all but one identified by prosecutors as CIA agents — were tried in absentia and are considered fugitives.

"I would not be confident of avoiding prosecution overseas."

However Baum believes that the politics of an actual arrest and the possible political ramifications and retaliation would make such prosecutions extremely remote.

"France could decide to indict George W. Bush and the United States could make life pretty unpleasant for France in exchange," Baum said. 

Even the smaller fish, like CIA officials who were involved in the interrogations at the lowest level, would spark a political firestorm if they were arrested in another country.

"Countries arrest Americans all the time for crimes. It's the link to a very salient policy that reached to the White House that makes this different. In effect, it's a rebuke of the administration," he said.

"I don't know  if there are very many countries, especially among our allies, who are going to conclude the benefit is worth the cost."