On December 9, the Senate Select Committee on Intelligence finally released the executive summary of its report on the CIA’s detention and interrogation program. The 525-page, partially redacted summary revealed that the abusive interrogation methods utilized by the CIA were far more brutal and more frequently employed than initially reported, that the agency repeatedly misled the White House, the Justice Department, and its own Inspector General about the effectiveness of the program, and that it actively impeded congressional oversight. The committee’s full 6,700-page report, based on an examination of more than 6 million internal CIA documents, remains classified. Senator Mark Udall, a member of the committee, has called for the resignation of CIA Director John Brennan and urged President Obama to purge the agency of the personnel who implemented and facilitated the torture program.
The long-delayed release of the executive summary prompted civil liberties and human rights advocates to renew their calls for the prosecution of individuals who authorized or participated in the torture of detainees, a remedy that Attorney General Eric Holder has declined to pursue. Georgetown law professor David Luban cautions that it would be almost impossible for federal prosecutors to obtain convictions under the statutory prohibition against torture because the defendants would argue that they relied in good faith on the now discredited torture memos issued by the Justice Department’s Office of Legal Counsel. Instead, Professor Luban urges President Obama to honor the CIA operatives, military officers, and members of the Bush administration who resisted and exposed the torture program, often at significant cost to their careers.
Another alternative to prosecutions would be for President Obama to grant pardons to the members of the Bush administration who authorized the torture of detainees held by the CIA. Though less than ideal, this approach would at least constitute an official acknowledgment that crimes were committed at the very highest levels of government. In addition, it would avoid the inevitable partisan backlash that would accompany criminal prosecutions and perhaps help to restore the bipartisan consensus against torture that existed prior to the war on terror.
Presidential pardons would not preclude prosecutions by international tribunals. Shortly before the Senate Intelligence Committee released the executive summary of its report, the Office of the Chief Prosecutor of the International Criminal Court (ICC) announced that it has opened a preliminary investigation of the treatment of detainees captured by the United States in Afghanistan. However, as Northwestern law professor Eugene Kontorovich has noted, significant jurisdictional hurdles would have to be overcome before the ICC could pursue a full-fledged investigation, let alone prosecutions.
If you are interested in learning more about the ICC, the Geneva Conventions, and the U.N. Convention Against Torture, consult the Georgetown Law Library’s Research Guide to War Crimes. The Law Library’s collection includes many resources that address the subject of torture, such as Professor Luban’s new book, Torture, Power, and Law. To locate additional resources, search the library catalog using one or more of the following subject headings: torture (international law), torture – moral and ethical aspects, and torture – government policy – United States.