Accountability for Torture Memos?

We submitted this report because the Obama administration’s failure to hold officials accountable is not about law or justice; it’s about politics. Today, the prospect of prosecuting senior officials for torture is considered politically unimaginable in the United States. Our job is to make it imaginable. This requires dismantling the false aura of legitimacy around the legal architecture of impunity erected by U.S. officials to shield themselves from liability. The CAT Committee can – and in fact already is – playing an important role in this process.

This week, our group sent a delegation to Geneva to call on the Committee to hold government officials accountable during its review of the U.S. compliance with the UN Convention Against Torture. As the controlling authority empowered to interpret U.S. obligations under the Convention Against Torture, the CAT Committee, is uniquely placed to advance efforts towards accountability in the U.S. by making clear that senior government officials who authorize torture cannot declare themselves to be above the law.

We were energized to hear the Committee focus heavily on accountability during its review of the United States. Several Committee members came down hard on the U.S. delegation for its failure to provide legitimate and transparent responses to serious questions about the government’s lack of investigations and prosecutions for torture. Committee member Jens Modvig asked the U.S. government to provide information on specific steps taken to ensure investigation and prosecution of senior officials, including specifically those who provided legal cover to the interrogation of detainees in US custody. He was joined by other members demanding to know how it could be possible, given the widespread reach and gravity of the torture program, that the investigation into CIA torture by prosecutor John Durham could result in zero prosecutions.

For its part, the United States formally admitted to the Committee that our government had tortured people since 9/11 in the War on Terror, an important step not only for its political implications, but also for its legal ones, as our colleague Prof. Ben Davis discusses here. Unfortunately, however, the Obama administration missed a key opportunity to show the world—and Americans—that it was serious about its promise to be “open” and “truthful.”

For example, Defense Department official Brig. Gen. Richard Gross acknowledged the Department’s obligation to investigate all allegations of torture “no matter how senior the official,” but failed to produce any evidence of criminal investigations into top Defense officials Donald Rumsfeld and William Haynes. In response to the Committee’s questions about criminal accountability for the legal architects of the torture program, Justice Department official David Bitkower pointed instead to the findings of an internal agency that was empowered only to consider the lawyers’ ethical conduct—a finding that has been widely criticized for overturning another investigation that had indeed found evidence of serious misconduct.

Finally, the U.S. government’s statements this week did nothing to dispel our concern that the Durham investigation was fundamentally flawed, beginning with its mandate, which, from the little the Department of Justice has been willing to disclose, was extremely narrow. The investigation was limited to the CIA and excluded consideration of anyone deemed to have acted within the scope of Justice Department legal advice—the same legal advice that has been widely condemned by the legal community (including by this very Justice Department, as well as some Bush administration lawyers whose opinions were silenced at the time) for its manifestly unlawful and grossly narrow interpretation of the prohibition against torture.

Furthermore, the government’s troubling lack of transparency in relation to this investigation leaves many important questions unanswered, including whether Durham bothered to interview the torture survivors themselves. The United States refused to respond even generally to this point and gave no credible reason for withholding the information, further reinforcing suspicion of the meaningfulness and good faith of the investigation.

Given its position, it’s hard to understand how the U.S. government keeps pointing to the Durham investigation as evidence of good faith efforts toward accountability for torture and commitment to its treaty obligations.

Not surprisingly, the Committee’s experts saw through the government’s response. As Dr. Modving pointed out: “[y]ou won’t find what you’re not looking for.” Meanwhile, Acting Chairman George Tugushi directly questioned the investigation’s credibility: “We are not fully satisfied with that answer … In our view, any investigation into possible ill treatment by public officials must comply with the criteria of thoroughness. And actually to be considered credible, it must be capable of leading to a determination of whether force or other methods used were or were not justified under the circumstances, and to the identification of the appropriate punishment of those concerned.”

The CAT Committee’s skepticism was affirming, and yet another important sign for us that these top officials’ "get out of court free" cards won’t last forever. Through its upcoming Concluding Observations, the CAT Committee will have another opportunity to emphasize to the U.S. government, and to other governments around the world, that they cannot carve out exceptions to the absolute prohibition on torture.

In sum, our trip to Geneva presented us with the opportunity to press for accountability and to witness the results of our advocacy through the CAT Committee’s actions. Furthermore, being in Geneva for the review process gave us the chance to meet other civil society groups from across the United States, and to learn from their stories and struggles. It was inspiring to work alongside these other groups, and it strengthened our voice to be part of a larger human rights movement in a powerful display of solidarity. Working with these groups also helped us see that holding the government accountable for its actions and demanding transparency was important for all of our efforts – from the calling of prosecutions of senior officials to advocating for equal treatment of LGBT persons.

As we return back home, we recognize that civil society needs to maintain this solidarity and together keep applying pressure to the United States government to create change.

Lauren Blodgett, JD ’16 and Morgan Davis, JD ’15

International Human Rights Clinic, Harvard Law School

The International Human Rights Clinic at Harvard Law School is a center for active engagement in human rights within a context of critical reflection. Under the supervision of clinical faculty, law students work on a range of international and humanitarian law projects in countries throughout the world. Since 2006, the Clinic has been involved in efforts to address human rights violations by the United States in the counterterrorism context. It has developed particular expertise on the pivotal role played by U.S. military and intelligence health professionals in the torture of people held in national security detention centers. This past semester, the Clinic has partnered with outside legal and health professionals to submit a shadow report to the CAT Committee and has led various other advocacy efforts to raise awareness and attempt to impact the November review of U.S. compliance with the UN Convention Against Torture.