Senate Report Exposes Torture and Misrepresentations By CIA Officials . . . But Recommends No Prosecution

by | Apr 2, 2014


We previously discussed how CIA officials were accused of trying to intimidate Senate staffers working on an investigation into allegations of torture and lies by the agency officials. Now the details of that still classified report have been leaked to the media. For the Senate Intelligence Committee (long accused of being a rubber stamp for intelligence agencies), the report is quite damning. The Senate found a pattern of misinformation knowingly released by the CIA to convince the public that its torture program yielded valuable intelligence — and new forms of torture that have never been previously confirmed. What is most striking however is what is not in the report: a recommendation for criminal prosecution. Indeed, consistent with its past approach to intelligence abuses, the Committee does not recommend any action be taken against a single CIA official.

The investigation reportedly details how the CIA knowingly and methodically misled the government and the public about intelligence derived from torture. This was part of a concerted effort by CIA officials and Bush officials to claim that the killing of Osama Bin Laden and other intelligence victories only occurred due to the use of torture. Indeed, the movie “Zero Dark Thirty” was a disturbing revisionist film that directly linked torture derived information with the killing of Bin Laden despite an absence of any support for such a claim. The very persons who could have been prosecuted for the torture program have given countless interviews assuring the public that the torture was beneficial. Putting aside the question of why benefits from a torture program would excuse the crime, this report further confirms that these claims were untrue.

Notably, the report details how the CIA ordered the torture of cooperating captives and overruled officials who denounced the torture as immoral and ineffective. In one case, even CIA employees walked out of a torture session in Thailand in protest of the disgusting measures used by their government. These include new torture methods like the repeated dunking of a terrorism suspect in tanks of ice water at a detention site in Afghanistan while being beaten by a club and having his head slammed against the tank. The FBI repeatedly objected to the torture as unlawful and ineffectual. Indeed, former FBI agent Ali Soufan interrogated Zayn al-Abidin Muhammed Hussein, the suspected al-Qaeda operative known as Abu Zubaida, after his capture in Pakistan in 2002. He said that Soufan was cooperating, gave valuable information, but the CIA insisted on torturing him anyway. The CIA later mixed the pre-torture evidence with the minor torture-derived evidence to suggest that torture was the reason for the intelligence.

The CIA is also accused of misrepresenting the value of prisoners to allow for torture when the prisoners were really minor captives. Thus, Abd al-Rahim al-Nashiri was identified as the “mastermind” the 2000 bombing of the USS Cole in Yemen when he was a minor captive.

In direct contradiction to the film, the report also conclusively states that torture did not produce the information that led to the location of Osama Bin Laden. Instead, the detainee had already volunteered the information before his torture. The torture produced nothing of value. Yet, for many years to come, movie viewers will watch this film and conclude that torture paid off for the United States. That is truly a dark legacy for director Kathryn Bigelow and screenwriter Mark Boal, who were celebrated by Hollywood at the time of the movie.

Former CIA interrogator named Charlie Wise is identified (as he has before) as being one of those responsible for the most egregious forms of torture. He was forced to retire in 2003. However, he was never prosecuted under our binding obligations under treaties. The penalty for torturing people was early retirement – not exactly what is called for under our treaties and international law. Wise later died of a heart attack. His protection from prosecution can be traced directly to President Obama. Since Obama ran on a civil liberties platform, many expected an independent torture investigation as soon as he took office. After all, waterboarding is one of the oldest forms of torture, pre-dating the Spanish Inquisition (when it was called tortura del agua). It has long been defined as torture by both U.S. and international law, and by Obama himself. Torture, in turn, has long been defined as a war crime, and the United States is under treaty obligation to investigate and prosecute such crimes.

However, such a principle did not make for good politics. Accordingly, as soon as he was elected, Obama set out to dampen talk of prosecution. Various intelligence officials and politicians went public with accounts of the Obama administration making promises to protect Bush officials and CIA employees from prosecution.

Though the White House denied the stories, Obama later gave his controversial speech at the CIA headquarters and did precisely that. In the speech, he effectively embraced the defense of befehl ist befehl (“an order is an order”) and, in so doing, eviscerated one of the most important of the Nuremburg principles. Obama assured the CIA that employees would not be prosecuted for carrying out orders by superiors. This was later affirmed by Holder’s Justice Department, which decided that employees carrying out torture were protected because they followed orders.

Even this Senate report continues that policy in not demanding the prosecution of officials who carried out this torture program and then lied to the public and Congress. Previously, the Justice Department even refused to prosecute CIA officials who admitted to destroying tapes of torture to avoid their use against them in any criminal prosecution.

As surprising as it is for the Senate Intelligence Committee to reach any negative findings against the intelligence agencies under Chairperson Dianne Feinstein, it is the absence of the recommendations to hold officials accountable that may ultimately send the strongest message to the intelligence ranks. The report suggests that even the commission of acts considered war crimes will not result in prosecution in the United States. It is further evidence of the corruption of our moral and legal values after 9-11. It has destroyed the credibility of this country in discussing human rights violations in other countries and contributed to various studies now identifying the United States as a menace rather than an advocate of civil liberties.

Reprinted with author’s permission.


  • Jonathan Turley

    Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools.

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