http://www.bloombergview.com/articles/2014-12-10/cia-torture-report-may-set-off-global-prosecutionsCIA Torture Report May Set Off Global Prosecutions
12 Dec 9, 2014 7:35 PM EST
By Eli Lake & Josh Rogin
The release of the Senate Intelligence Committee’s report on the CIA’s secret prisons roiled Washington Tuesday, but its real impact could be felt in courtrooms across the globe in the months and years to come.
Attorneys for human rights organizations are now poring over the 525-page declassified summary of the Senate majority report to find new material that could revive long-dormant and failed civil and criminal lawsuits on behalf of those detained by the Central Intelligence Agency.
While many American and international nongovernmental organizations have mounted legal challenges on behalf of people who were detained, transferred and harshly interrogated by the CIA and allied governments, these court challenges have rarely been successful. One reason is that the Justice Department under Presidents George W. Bush and Barack Obama have asserted that almost all details about the CIA program were a state secret. And while some government reports have been released about the black sites, the Senate committee’s majority report released Tuesday is the most comprehensive and detailed document to date.
“One of the tragedies about this is the attempt to find redress,” said Andrea Prasow, the deputy director of the Washington office for Human Rights Watch. “Judges have accepted the state secrets claim. Now it will be much harder to do that when we all have access to a 500-page public report that details a lot of this.”
The chances of a U.S. court re-opening civil or criminal charges against U.S. officials involved with the CIA program are slim. The agency and the Justice Department have conducted their own investigations into the CIA’s program and only low-level military officials and one CIA contractor has been prosecuted.
But European courts may be a different story. Some human-rights groups are now seeking to petition European courts to renew efforts to prosecute Bush administration officials under the principle of universal jurisdiction. That principle was established in 1998, when a Spanish court indicted Augosto Pinochet, the dictator of Chile, for his role in the murder and torture of many of his political opposition. When Pinochet was traveling through the U.K. in 1998, he was arrested by order of the Spanish court. (U.K. officials released him back to Chile two years later.)
“After reviewing this report, we will give consideration to reopening petitions or filing new petitions in European courts under the principles of universal jurisdiction,” said Baher Azmy, the legal director of the Center for Constitutional Rights, a group that has represented Guantanamo detainees including Majid Khan and Abu Zubaydah, two detainees who went through the CIA’s black-site prisons.
Azmy’s organization has failed to persuade courts in Germany, Canada and France to open cases against Bush administration officials to date, but still has one pending in Spain.
Now Azmy is hopeful the Senate’s declassified report could change things. “This suggests the possibility of reopening those cases," Azmy said. "We are filing additional petitions against the CIA and high level officials.” He added: “The comprehensiveness and detail of this declassified report is thorough evidence of a criminal conspiracy of U.S. officials to torture dozens of human beings.”
A statement offered to Buzzfeed on Tuesday from the Polish embassy in Washington said the Poles are still investigating the secret black sites in Europe. (It’s been reported that Poland hosted one of the CIA’s secret facilities.) “The value of the declassified material revealed in the Senate report will be assessed by the Prosecutor’s Office in Krakow, who heads the inquiry into the existence of alleged secret CIA sites on Polish territory,” the embassy’s statement said.
Raha Wala, senior counsel at Human Rights First, a group that advocated for the report’s release, told us, "I would fully expect that individuals who were subjected to these programs would take up civil actions in court to get some sort of remedy for these human rights violations.”
On the other side of the issue, former senior intelligence officials also expect the new report could provide fodder for new lawsuits. One ex-CIA officer said that while there was some anxiety about the legal implications of this, intelligence veterans are far more concerned with what they feel are the many inaccuracies in the committee report.
Christopher “Kit” Bond, the Republican who served as vice-chairman of the Senate Intelligence Committee when that panel began its work on the report, also said he was expecting new lawsuits. “There is untold damage that could come from this,” he told us. “Having the U.S. government go on record condemning the critical terror-investigating agency of the U.S. government puts us at tremendous risk. There is not telling what could happen. Lawsuits will be a major challenge.”
Among those who could take advantage of the report’s details are the more than 130 detainees still stuck at Guantanamo, who are languishing in the military commissions process and have been the subject of years-long prosecutions mired in protracted litigation.
Five alleged 9/11 co-conspirators, including Khalid Sheikh Mohammed, were transferred to Guantanamo following their interrogations at CIA black sites. So was Abd al-Rahim al-Nashiri, who stands accused of plotting the bombing of the U.S. Navy destroyer Cole in 2000 off the coast of Yemen. These men have long been pressing the government to admit details of their harsh interrogations, details that are now out in public for all to see.
But the public disclosure of the harsh interrogations could also produce a side-benefit for the military commission prosecutors, because the litigation over the secrecy of the interrogations has been the main thing clogging up the prosecution process.
“In some ways, it will benefit both the defense and the government,” said Wala of Human Rights First. “The defense will be able to raise new charges about horrendous treatment and the government will be able to move these cases forward now that it will have to devote less time to keeping details of mistreatment secret.”
Hina Shamsi, the director of the national security project for the American Civil Liberties Union, told us that the declassified report could also create some political pressure for the Justice Department to appoint an independent prosecutor to re-open the files on the CIA’s black site program.
“Release of the report revitalizes calls for an independent special prosecutor and there is still time for the investigation of some of the worst abuses that took place because there is no statute of limitations for torture when it results in serious injury or death or for the war crime of torture,” she said.
