Comprehending Our Violence – Revisited

This week, the Senate Report on the CIA’s harsh interrogation techniques was made public. The only way that the revelations could come as any surprise is if one resolutely disregarded the many reports that have emerged from Abu Ghraib, Camp Delta, Iraq, Guantanamo, and others. Moreover, it would require the complete deafness to the accounts of survivors as reported by journalists, academics and human rights/civil rights activists. During a period of time when the country is still dealing with the racial tensions and the movements to bring greater accountability to the criminal justice system, the report gives us yet another opportunity to examine our national identity as champions of the rule of law as we project it across the globe and the reality of our violence that fails to match up.

CIA Director John Brennan points out in his speech today that the harsh interrogation techniques or in simpler terms, torture, were authorized by the legal functionaries of the United States government. Having received the legal go-ahead, the CIA under the Bush administration undertook its mission to obtain information through the use of torture with aplomb. Not only do we have torture reports and evidence of abuse from the sites in Afghanistan and Iraq, we also partnered with autocratic states throughout the world which helped us run black sites to which terrorist suspects would be rendered.

Even while the report is being dissected in the U.S. media, there is precious little analysis on the international legal consequences of the admission that we tortured. For instance, we are a signatory to the Convention Against Torture. It is undeniable that we have violated the treaty obligations that we signed on to. At least one UN official has suggested that we ought to be held accountable for undermining the treaty.

The fear now is whether the admission will now result in the possible prosecution of those officials who were responsible. A lot of people are calling for prosecutions.  But given that the US is not party to the International Criminal Court, such prosecutions are left to domestic courts. The U.S. federal courts could hear domestic claims as they did in United States v. Pessaro in which a contractor was prosecuted for violating the Convention Against Torture (CAT). However, it has been made clear that the Department of Justice will not prosecute. That leaves other countries who might consider prosecuting to do so in their own courts. There is a real fear that the report will be the basis of such prosecutions when Bush-era officials travel abroad. However, the real question is whether the subjects of torture, some of whom have been left injured, will be able to bring cases against government officials.

The CAT requires signatories to provide redress. Just as terrorists are subject to universal jurisdiction and capture in whichever territory they may be found, torturers too may be captured and extradited or tried by any state. As Christopher Hall wrote in 2007:

The universal criminal jurisdiction provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment …which require each state party to extradite or submit any case involving a foreigner in territory subject to its jurisdiction suspected of torture committed abroad against another foreigner to its competent authorities for the purpose of prosecution. What is not generally known is that Article 14 of the Convention, which contains no geographic restriction, requires each state party to ensure in its legal system that any victim of an act of torture, regardless of where it occurred, obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.

What does this mean for the United States? How can we abide by these requirements while immunizing the key individuals who authorized torture? The answer is we can’t. The Obama administration is undoubtedly violating CAT by refusing to prosecute. International law’s limits are clearly demarcated at our borders.