A scathing and still-secret Senate report on harsh CIA interrogations and detentions threatens to drag President Barack Obama into a legal thicket he’d rather avoid.
With its findings that the CIA flagrantly abused some detainees and held some without legal authorization, the Senate Intelligence Committee report now headed for the White House could become a roadmap for future litigation. At the very least, it confronts officials with uncomfortable choices.
“The report could put pressure on the Obama administration to abandon its impunity for torture policy,” Morris Davis, former chief prosecutor of the Guantanamo military commissions, said Friday.
Davis, now an assistant professor at Howard University Law School, cited the potential for “civil damages for those who were subjected to the program, civil or criminal liability of those who authorized or participated in conducting the program, and legal action in international or foreign courts.”
Completed at an estimated cost of $40 million and spanning some 6,300 pages, the full Senate committee report examines the CIA’s handling of detainees after the Sept. 11, 2001, terrorist attacks. By an 11-3 vote Thursday, the Senate committee approved declassifying the report’s executive summary and findings.
The report reveals that CIA officers subjected some terrorism suspects to interrogation methods that were not approved by either the Justice Department or their own headquarters. The report further concludes the agency illegally detained 26 of the 119 detainees it held, McClatchy has learned.
The Senate committee also concluded that the CIA repeatedly misled the Justice Department while stymieing Congress’ and the Bush White House’s efforts to oversee the secret and now-defunct program.
“This is dealing with incidents that took place up to 10 years ago,” Chris Anders, senior legislative counsel of the American Civil Liberties Union, said Friday, “but it’s really not in the past yet.”
The immediate next step is for the Obama administration to complete a declassification review. Though some advocates had urged the White House to take direct charge, National Security Council spokeswoman Caitlin Hayden said: “The CIA, in consultation with other agencies, will conduct the declassification review.”
“It’s the latest sign that President Obama is unwilling, or unable, to stand up to the CIA,” Anders said.
Intelligence agency leaders often find ways to align themselves with presidents, to their mutual advantage. Obama’s current CIA director, John Brennan, previously had four years to build a personal relationship with the president while serving as his counterterrorism adviser.
Soon after taking office, Obama ruled out prosecuting those who had participated in the Bush administration program.
“This is a time for reflection, not retribution,” Obama declared in April 2009. “We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.”
Attorney General Eric Holder followed up in August 2012, concluding that the Justice Department would not prosecute anyone for the 2002 death of a prisoner in Afghanistan or the 2003 death of a prisoner in Iraq.
McClatchy reported recently that Senate investigators found evidence in the CIA’s own records of the agency’s culpability in the death in Afghanistan. The CIA, however, has countered that the overall Senate report is flawed.
Because much remains under wraps, past civil claims, on behalf of those once held in the CIA’s “black sites” overseas, have invariably failed.
Khaled El-Masri, a German citizen, was abducted by Macedonian police and turned over to the CIA in 2004. While in CIA custody, he said he was repeatedly beaten, strip-searched and drugged, court records show. El-Masri was released after U.S. officials acknowledged they did not have evidence of his ties to terrorists.
However, when he tried to sue, the Justice Department persuaded the judge to throw the case out for national security reasons.
“The courts have been extremely resistant to any form of civil liability so far, not because the evidence wasn’t available, but because the courts did not want to get into this,” said Jonathan Hafetz, a professor at Seton Hall University Law School.
Even with its graphic details, Hafetz said he doesn’t think the Senate committee’s report will be a legal “game changer.” Civil litigants will still face judges reluctant to second-guess national security decisions, and federal prosecutors will still face a president intent on looking forward.
But the report still will have impact.
“It will help shape the public narrative about the torture program,” Hafetz said.
The completion of the Senate report also could reshape other legal battlegrounds.
Guantanamo Bay defendant Ammar al Baluchi has already asked his military commission to compel discovery of the Senate report, the official CIA response, an internal CIA document known as the Panetta review and supporting documents.
“There is every reason to believe the (report) contains information about the CIA’s torture of Mr. al Baluchi,” said attorney James Connell. “The (committee) knows the truth of what happened, and the military commission considering whether to execute Mr. al Baluchi should know, too.”
The American Civil Liberties Union last November likewise filed a Freedom of Information Act lawsuit against the CIA, seeking both the Senate committee’s full report as well as the agency’s response.
So far, the CIA has argued that the report isn’t really the agency’s to disclose.
In a March 28 legal filing, the Justice Department added that the Senate report hadn’t yet been sent to the executive branch “for classification review, a necessary precursor to public release.” With this week’s committee vote, this argument, at least, loses force.