Failure to Prosecute CIA Abuses Sends Wrong Message
November 9, 2010
It is beyond shocking that a former US president can publicly claim responsibility for torture and the next day the US government can say it will not pursue charges for destroying evidence of that torture. It sends the ugly message that there are no legal consequences in the United States for committing the most heinous of international crimes.
Joanne Mariner, terrorism and counterterrorism director

(New York) - The US government is wrong to not criminally prosecute CIA officials who destroyed evidence of torture, Human Rights Watch said today. The televised statements of former President George W. Bush acknowledging his personal responsibility for ordering torture demonstrate the need for the Obama administration to pursue prosecutions of senior US officials responsible for planning and authorizing the torture and ill-treatment of detainees, Human Rights Watch said.

Acting US Attorney John Durham, who is also in charge of an ongoing investigation into improper interrogations of detainees, announced today that he would not pursue criminal charges for the destruction of CIA videotapes showing interrogations of terrorism suspects.

"It is beyond shocking that a former US president can publicly claim responsibility for torture and the next day the US government can say it will not pursue charges for destroying evidence of that torture," said Joanne Mariner, Terrorism and Counterterrorism Program director at Human Rights Watch. "It sends the ugly message that there are no legal consequences in the United States for committing the most heinous of international crimes."

The destroyed videotapes showed the torture of detainees Abu Zubaydah and Abd al-Rahim al-Nashiri while they were being held in a secret CIA "black site" in Thailand in 2002. The tapes were reportedly kept in Thailand until November 2005, when Jose A. Rodriguez, then head of the CIA's clandestine service, ordered them to be destroyed.

Rodriguez reportedly claimed responsibility for the destruction of the tapes, asserting that CIA lawyers had authorized his order. Bush, in an interview televised on November 8, 2010 similarly claimed that Justice Department lawyers had said that waterboarding and other abusive interrogation methods were not illegal, giving him the go-ahead to order the practices.

A report from the Justice Department's Office of Professional Responsibility issued in February 2010 found that the key lawyer responsible for such legal opinions had "violated his duty to exercise independent legal judgment and render thorough, objective and candid legal advice."

"To say that Justice Department lawyers gave their okay to clearly illegal methods of torture and ill-treatment is a lame excuse," Mariner said. "It simply shows that the lawyers themselves were derelict in their duty to uphold the law."

The investigation of the CIA's use of these abusive techniques is ongoing. Durham, the special prosecutor assigned to the videotape destruction case by former Attorney General Michael Mukasey, had his mandate greatly expanded in August 2009, when Attorney General Eric Holder appointed him to carry out a preliminary review of abuses against CIA detainees. The focus of the review is on so-called "unauthorized" interrogation techniques - practices that went beyond what was allowed under legal advice provided by the Justice Department at the time.

The overwhelming weight of evidence of criminal abuses ordered by senior officials and committed by the CIA makes a full-scale criminal investigation into senior-level responsibility for these practices necessary, Human Rights Watch said. Human Rights Watch expressed concern that the current investigation seemed unlikely to look up the chain of command to senior-level officials who ordered, conspired to commit, or were complicit in torture or ill-treatment.

To date, the Obama administration has shown little enthusiasm for any of these steps. President Barack Obama has repeatedly expressed a reluctance to "look backwards" at alleged crimes committed during the previous administration. He has specifically ruled out prosecuting CIA agents who committed abuses that the Justice Department advised were lawful, even though torture is a serious crime under both US and international law.

Under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the US ratified in 1994, a government is obligated to submit cases of torture "to its competent authorities for the purpose of prosecution .... These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State." The US anti-torture statute imposes criminal penalties for torture committed by US nationals whether in the US or abroad.

Human Rights Watch said that the US record on accountability for detainee abuse has been abysmal. Human Rights Watch has collected information regarding some 350 alleged cases of torture and ill-treatment involving more than 600 US military and civilian personnel. Despite numerous and systematic abuses, not a single CIA official has been held accountable, and few military personnel have been punished.

"The world is waiting to see if the special prosecutor investigates what is now overwhelming evidence of abuse," Mariner said. "The United States cannot allow systematic torture to go unpunished."