Smart. Sharp. Funny. Fearless.
Sunday, December 11, 2016

By Jonathan S. Landay, McClatchy Washington Bureau (TNS)

WASHINGTON — President Barack Obama should appoint a special prosecutor to determine if former Bush administration and CIA officials broke the law by having suspected terrorists abducted and tortured in secret prisons by waterboarding and other brutal interrogation methods, two leading human rights groups said Monday.

The call by Human Rights Watch and the American Civil Liberties Union was the second proposal for a special investigation issued from a human rights organization since the publication earlier this month of a blistering Senate Intelligence Committee report into the CIA interrogation program that ran from 2002 until 2007.

“We believe the failure to conduct a comprehensive criminal investigation would contribute to the notion that torture remains a permissible policy option for future administrations; undermine the ability of the United States to advocate for human rights abroad, and compromise Americans’ faith in rule of law at home,” Human Rights Watch and the ACLU wrote in a joint letter to Obama.

The letter follows an analysis of the Senate report issued last week by Physicians for Human Rights, which urged Obama to appoint a special commission to examine whether CIA health professionals violated international and U.S. laws prohibiting experimentation on human subjects without their consent.

It’s highly unlikely that Obama will embrace any calls for such investigations. The White House repeatedly has pointed out since the release of the Senate report that a special prosecutor who spent three years looking into possible wrongdoing by the CIA closed the probe in 2011 without finding sufficient “admissible evidence.”

“The Department of Justice actually did conduct a review of the actions of CIA operatives that are mentioned in this report, that there was a career federal prosecutor who was assigned to this case and that this individual conducted an extensive inquiry, and upon looking at the facts in evidence decided not to pursue an indictment,” White House spokesman Josh Earnest said on Dec. 10.

But the ACLU and Human Rights Watch asserted in their letter that a fresh criminal investigation is warranted by new disclosures about the CIA program in the Senate report.

Even if the former special prosecutor, John Durham, had access to the more than 6 million pages of classified CIA cables, emails and other documents reviewed by the Senate investigators, the Senate report “has now synthesized a huge volume of information into a narrative that clarifies the extent and seriousness of criminal conduct,” the groups said.

The United States, they wrote, is obliged as a signatory of international treaties banning torture to “effectively, independently, and impartially investigate all cases of unlawful killing, torture or other ill-treatment, arbitrary detention or enforced disappearance” and prosecute those found to be responsible, they wrote.

The Senate report, written by the majority Democrats, found that the CIA’s use of waterboarding, which simulates drowning, extensive sleep deprivation and other interrogation techniques failed to produce any intelligence on imminent al-Qaida attacks and that information gained from detainees was available from other sources.

It also concluded that the agency misled the White House, Congress and the public about the program’s results. CIA interrogators used methods that weren’t approved as legal by the Justice Department and submitted detainees to medically unnecessary “rectal feeding” and “rectal rehydration,” it said.

The agency admitted that mistakes were made. But the CIA, former Bush administration and agency officials and minority Republicans on the Senate committee disputed the findings, contending that the program was legal and produced intelligence that led to senior al-Qaida operatives, including Osama bin Laden, averted terrorist plots and saved American lives.

In their letter to Obama, the two groups said another reason for appointing a new special prosecutor was because there was no evidence that Durham had ever interviewed any former CIA detainees.

“The absence or paucity of victim interviews, particularly when many of the victims remain in U.S. custody, undercuts the credibility of the decision not to indict anyone for torture-related crimes,” they said.

Finally, Durham didn’t examine possible crimes by CIA officials who operated under Justice Department-issued legal guidelines on interrogation, the groups said. The Senate report, it explained, showed that senior agency officials were aware that the interrogation methods were illegal before they ever asked for those guidelines.

“The argument of good faith reliance on (legal) counsel appears inapplicable to some of the officials who were involved in conceptualizing, ordering, and executing these crimes,” said the letter. “We believe that officials who provided legal advice meant to authorize torture should also not benefit from any presumption that they were fulfilling their responsibilities in good faith.”

The need for a new criminal investigation “is made more urgent” because former Bush administration and CIA officials “who authorized the conduct documented in the Senate torture report” have been defending the necessity, legality and effectiveness of the program in news media interviews and opinion pieces, the letter said.

In a related development, a Democratic member of the Senate Intelligence Committee condemned as “beyond the pale” a report that no punishments will be recommended by a panel appointed by CIA Director John Brennan to review the CIA’s unauthorized infiltration of the computers used by the panel’s Democratic staff to compile the report.

“The CIA’s unauthorized search of computer files and emails belonging to its congressional oversight committee was a massive breach of the separation of powers and very well may have violated federal laws,” retiring Sen. Jay Rockefeller (D-WV), a former committee chairman, said in a statement.

The New York Times reported over the weekend that the accountability panel of three CIA officers and two agency outsiders was expected to criticize the agency over the search but wouldn’t call for disciplinary action against the CIA officers who were involved.

AFP Photo/Shane T. McCoy