By JOHN HEILPRIN
All senior U.S. officials and CIA agents who authorized or carried out torture like waterboarding as part of former President George W. Bush’s national security policy must be prosecuted, top U.N. officials said Wednesday.
It’s not clear, however, how human rights officials think these prosecutions will take place, since the Justice Department has declined to prosecute and the U.S. is not a member of the International Criminal Court.
Zeid Raad al-Hussein, the U.N. high commissioner for human rights, said it’s “crystal clear” under international law that the United States, which ratified the U.N. Convention Against Torture in 1994, now has an obligation to ensure accountability.
“In all countries, if someone commits murder, they are prosecuted and jailed. If they commit rape or armed robbery, they are prosecuted and jailed. If they order, enable or commit torture — recognized as a serious international crime — they cannot simply be granted impunity because of political expediency,” he said.
U.N. Secretary-General Ban Ki-moon hopes the U.S. Senate Intelligence Committee report on the CIA’s harsh interrogation techniques at secret overseas facilities is the “start of a process” toward prosecutions, because the “prohibition against torture is absolute,” Ban’s spokesman said.
Ben Emmerson, the U.N.’s special rapporteur on counterterrorism and human rights, said the report released Tuesday shows “there was a clear policy orchestrated at a high level within the Bush administration, which allowed (it) to commit systematic crimes and gross violations of international human rights law.”
He said international law prohibits granting immunity to public officials who allow the use of torture, and this applies not just to the actual perpetrators but also to those who plan and authorize torture.
“The fact that the policies revealed in this report were authorized at a high level within the U.S. government provides no excuse whatsoever. Indeed, it reinforces the need for criminal accountability,” Emmerson said.
Human Rights Watch executive director Kenneth Roth echoed those comments, saying “unless this important truth-telling process leads to the prosecution of officials, torture will remain a ‘policy option’ for future presidents.”
The report said that in addition to waterboarding, the U.S. tactics included slamming detainees against walls, confining them to small boxes, keeping them isolated for prolonged periods and threatening them with death.
However, a Justice Department official said Wednesday the department did not intend to revisit its decision to not prosecute anyone for the interrogation methods. The official said the department had reviewed the committee’s report and did not find any new information that would cause the investigation to be reopened.
“Our inquiry was limited to a determination of whether prosecutable offenses were committed,” the official said on condition of anonymity because they were not authorized to discuss an investigation. “Importantly, our investigation was not intended to answer the broader questions regarding the propriety of the examined conduct.”
The United States is also not part of the International Criminal Court, which began operating in 2002 to ensure that those responsible for the most heinous crimes could be brought to justice. That court steps in only when countries are unwilling or unable to dispense justice themselves for genocide, crimes against humanity or war crimes. The case could be referred to the ICC by the U.N. Security Council, but the United States holds veto power there.
In one U.S. case mentioned in the report, suspected extremist Gul Rahman was interrogated in late 2002 at a CIA detention facility in Afghanistan called “COBALT” in the report. There, he was shackled to a wall in his cell and forced to rest on a bare concrete floor in only a sweatshirt. He died the next day. A CIA review and autopsy found he died of hypothermia.
Justice Department investigations into his death and another death of a CIA detainee resulted in no charges.
President Barack Obama said the interrogation techniques “did significant damage to America’s standing in the world and made it harder to pursue our interests with allies.” CIA Director John Brennan said the agency made mistakes and learned from them, but insisted the coercive techniques produced intelligence “that helped thwart attack plans, capture terrorists and save lives.”
The Senate investigation, however, found no evidence the interrogations stopped imminent plots.
European Union spokeswoman Catherine Ray emphasized Wednesday that the Obama administration has worked since 2009 to see that torture is not used anymore but said it is “a commitment that should be enshrined in law.”
German Foreign Minister Frank-Walter Steinmeier was quoted as telling the Bild daily that Obama had clearly broken with Bush policies and, as a result, Washington’s “new openness to admitting mistakes and promising publicly that something like this will never happen again is an important step, which we welcome.”
“What was deemed right and done back then in the fight against Islamic terrorism was unacceptable and a serious mistake,” Steinmeier said. “Such a crass violation of free and democratic values must not be repeated.”
Bush approved the program through a covert finding in 2002 but wasn’t briefed by the CIA on the details until 2006. Obama banned waterboarding, weeks of sleep deprivation and other tactics, yet other aspects of Bush’s national security policies remain, most notably the U.S. detention center at Guantanamo Bay, Cuba, and sweeping government surveillance programs.
U.S. officials have been tried in absentia overseas before.
Earlier this year, Italy’s highest court upheld guilty verdicts against the CIA’s former Rome station chief Jeff Castelli and two others identified as CIA agents in the 2003 extraordinary rendition kidnapping of an Egyptian terror suspect. The decision was the only prosecution to date against the Bush administration’s practice of abducting terror suspects and moving them to third countries that permitted torture.
All three had been acquitted in the original trial due to diplomatic immunity. They were among 26 Americans, mostly CIA agents, found guilty in absentia of kidnapping Milan cleric Osama Moustafa Hassan Nasr from a Milan street on Feb. 17, 2003.
In Geneva last month, a U.N. anti-torture panel said the U.S. government is falling short of full compliance with the international anti-torture treaty. It criticized U.S. interrogation procedures during the Bush administration and called on the U.S. government to abolish the use of techniques that rely on sleep or sensory deprivation.
The word “torture,” meanwhile, wasn’t mentioned in U.S. Ambassador Samantha Power’s statement Wednesday for Human Rights Day in which she criticized countries including North Korea and South Sudan.
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Eric Tucker in Washington and Cara Anna at the United Nations contributed to this report.
