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August 15, 2013

Is the U.S. Meeting its International Obligations Under the Anti-Torture Convention?

This week, the United States published its periodic report to the United Nations Committee Against Torture, which monitors compliance with the United Nations Convention Against Torture (CAT). The United States played a key role in the effort to craft the treaty, which was signed under President Reagan and later ratified by a strong bipartisan majority of the Senate.

The CAT focuses on the various responsibilities States have to account for past acts of torture to ensure that justice is served, and deter torture in the future.  For example, the CAT requires that States criminalize and prosecute acts of torture, provide avenues of redress for torture victims, and ensure adequate education and training for law enforcement and security forces to prevent torture.

So is the United States meeting its obligations under the CAT? 

If you take the United States periodic report at face value, the answer would be an unequivocal yes.  But the facts paint a different picture.

There’s no question that U.S. officials and agents tortured detainees after 9/11, sometimes in brutal fashion through painful simulated drowning (commonly referred to as “waterboarding”), threats with a power drill, sleep deprivation, exposure to extreme temperatures, and mock executions.

A crucial step forward in moving beyond this dark chapter of our history is President Obama’s executive order banning torture and rescinding the Department of Justice’s legal opinions that authorized torture. The president’s executive order features heavily in the U.S. periodic report to the CAT committee, but formally ending the torture program (which had already functionally ended when President Obama took office) doesn’t come close to meeting the United States’ obligations to account for past acts of torture, and take steps to ensure it won’t happen again.

In the military context, there have been some successful efforts to hold accountable those responsible for detainee abuse.  Notably, a number of individuals have been court martialed for abusing detainees, and in 2008 the Senate Armed Services Committee completed and released an inquiry establishing a factual record of how and why military personal abused detainees held in DoD custody.

By contrast, no CIA official or agent has been held responsible for the widespread torture of detainees at secret CIA blacksites in the years after 9/11.  The United States periodic report correctly points out that the Justice Department opened an inquiry into the torture of detainees in CIA custody, but that inquiry was limited in scope to only those instances of torture that were “unauthorized”—officials that devised or carried out even brutal “authorized” torture techniques such as waterboarding were given a pass.  In any event, the criminal probe was closed last year with an announcement that no one would be prosecuted for the CIA torture program, without adequate explanation for why charges could not be brought despite such clear evidence of widespread torture.

Meanwhile, what isn’t discussed in the periodic report is that the Obama Administration has continued an unjustified and far-reaching policy of using procedural mechanisms—such as the state secrets doctrine—to block torture victims from seeking redress in courts.  The administration has also opposed efforts by Senator Leahy and others to establish a truth commission that could take a comprehensive look at the post-9/11 policy of official cruelty.  This appears to be part of a broader theme: the president’s “look forward, not backward” policy toward post-9/11 abuses.  But any sustainable effort to build a durable consensus against torture in the United States must involve a clear accounting of the abuses committed in our names as Americans.

Despite these missteps, the Obama Administration now has an opportunity to get it right.  The Senate intelligence committee has completed and adopted a 6,000-plus page study on the CIA’s interrogation program, based on a multi-year review of over 6 million pages of official government records.  The study reportedly shows that the CIA torture program was more widespread and cruel than previously thought, and less effective at gathering useful intelligence than proponents of “enhanced interrogation” claim.  But the study—and the CIA program itself—remains classified.

Will the Obama Administration support public release of the intelligence committee study?  Shockingly, the periodic report to the CAT committee doesn’t even mention the study, or the Obama Administration’s position on whether it should be made public.  This is especially troubling given reports that the White House has deferred completely to the CIA, which is fighting the committee’s findings tooth and nail, and will likely forcefully oppose release of any meaningful version of the study.

If the Obama Administration is serious about preventing torture by U.S. officials from ever happening again—as the CAT requires—then it should join the growing list of retired generals and admirals, former CIA, and professional interrogators that have called for public release of the Senate intelligence committee’s study on the post-9/11 CIA interrogation program.  Even Vice-President Biden has voiced support for releasing the study.  President Obama can, and should, too.