Senator John McCain in 2014, honored for opposing torture.

Photographer: Drew Angerer/Getty Images

How to Wreck the Consensus Against Torture

Eli Lake is a Bloomberg View columnist. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.
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If you were a senior government official or a CIA officer involved with the capture, transport, torture or accidental killing of high-value terrorists in the 2000s, you probably shouldn't travel to Europe.  

At least this is the hope of Human Rights Watch. On Tuesday the group issued a report that detailed the criminal case against former president George W. Bush and his top advisers, claiming his administration's "enhanced interrogation" policy was a criminal conspiracy to torture, sexually assault and murder suspects kept at CIA black sites. Since President Barack Obama probably won't bring the charges, the report identifies 11 European countries where dormant and ongoing investigations may benefit from recently declassified information on the CIA's secret prisons.

The timing of the report is strange. Less than a month after a wave of Islamic State atrocities in Paris, Beirut and in the skies over the Sinai, there is a trans-Atlantic consensus that more must be done to smash the terrorists who have built a state in Syria and Iraq. Maybe this isn't the best moment to open prosecutions into a government agency that will be called upon to do the smashing.  

The report also challenges an uneasy consensus in Washington. Democrats and Republicans do not agree that waterboarding captured terrorists was a crime, but many do agree it was a blunder. In nearly seven years, Obama has decided not to prosecute the architects of the torture policy. And yet, a bipartisan consensus in the Senate supported an amendment this summer to strengthen Obama's own ban on torture, with only 21 Republicans voting against it. 

Human Rights Watch makes the case that the torture policy was criminal. "The line has to be drawn that this is illegal conduct, this is a line that cannot be crossed," Laura Pitter, the senior national security counsel for Human Rights Watch and one of the authors of the new report, told me. "Otherwise you send a message, in times of danger, that this is a policy option -- and that is not the message that should be sent."

Pitter's new report describes what it calls a criminal conspiracy that stretches from Dick Cheney to government lawyers like John Yoo and Jay Bybee, who wrote the legal memos that found techniques like waterboarding, severe sleep deprivation and stress positions did not violate U.S. laws banning torture.

Drawing on the declassified summary of a report from Senate Intelligence Committee Democrats, released almost a year ago, Human Rights Watch says there is now sufficient evidence to reopen old investigations in Europe and Canada. It also encourages other countries that are party to the Geneva Convention to start new prosecutions through a legal concept known as "universal jurisdiction."

Jack Goldsmith, a former Justice Department lawyer who withdrew the original legal opinions from Bybee and Yoo, wrote in his 2012 book, "Power and Constraint: The Accountable Presidency After 9/11," that a criminal trial against Bush officials would end up reopening a debate that is largely settled. "A criminal prosecution would divide the country and show that a broad swath of the American people supports the CIA program," he wrote. "The evidence in the trial would further churn the debate about the intelligence value of the CIA program. And the trial itself would almost certainly result in acquittal."

Glenn Carle, a former CIA officer who participated in a Human Rights Watch video released in conjunction with the report, largely agrees. "I oppose prosecutions because our country is so polarized that this would make things even worse," he said. When Carle was a CIA officer, he opposed his agency's interrogation program and later wrote a book about his experience. Nonetheless, he doesn't think his former bosses should be in the dock. "If the price of an increased consensus to repudiate torture going forward is a half dozen people continue their lives with impunity, that is a small price to pay," he said.

Part of the problem for Human Rights Watch is that the Justice Department has already investigated cases where CIA officers went beyond the legal guidelines, and ended this probe in 2012 without pursuing prosecutions. Pitter pointed out that the federal prosecutor in this case, John Durham, has acknowledged that there were limitations on the evidence available to his team. Nonetheless, the Justice Department has not taken up the issue again.

"The Justice Department has said they do not feel they have sufficient evidence to move forward with criminal accountability in these case. It's not clear to me there is a clear path forward at this time," Raha Wala, the senior counsel for defense and intelligence at Human Rights First, told me. "We'd like to hear from the Department of Justice as to why they do not have sufficient evidence, but we think the more fruitful path forward in the near term is to focus on rebuilding the bipartisan consensus against torture." 

At the end of the Obama administration, that bipartisan consensus is beginning to erode. In 2008, both the Democratic (Obama) and Republican (Senator John McCain) candidates opposed torture and favored closing Guantanamo. In 2015 Donald Trump has come out enthusiastically for waterboarding, pledging to authorize its use again if elected president. Carly Fiorina has defended waterboarding, saying it yielded valuable intelligence, and Jeb Bush has said he is open to repealing the ban on torture imposed by Obama.

Nonetheless other Republicans have held a firmer line. Both Ted Cruz and Rand Paul voted for the anti-torture amendment this summer. Many progressives hope this bipartisan opposition to torture can hold together after Obama leaves office. But this consensus will break apart if a foreign court prosecutes George W. Bush for a crime Barack Obama has long considered a blunder.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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