Report Lays Groundwork for Indictments on U.S. Torture

MANHATTAN (CN) — Now that the International Criminal Court has found “reasonable basis to believe” that U.S. military forces committed war crimes in Afghanistan and at CIA black sites, a prominent human-rights attorney predicts action on the horizon.

“Within a year or so, we could be seeing indictments,” said Katherine Gallagher, a senior staff attorney with the Center for Constitutional Rights who has taken on atrocities around the world, from Iraq to the former Yugoslavia to Kosovo.

Courthouse News reached out to Gallagher for context after the International Criminal Court released an explosive preliminary examination on Nov. 14, subjecting the United States and United Kingdom to the same prosecutorial gaze as the Taliban, Burundi, Guinea, the Gabonese Republic and other human-rights abusers.

“Members of U.S. armed forces appear to have subjected at least 61 detained persons to torture, cruel treatment, outrages upon personal dignity on the territory of Afghanistan between 1 May 2003 and 31 December 2014,” the 74-page report says.

Gallagher explained such a report allows the Office of the Prosecutor to have the case moved “from the preliminary examination stage to the investigation stage.”

“And what we know from the report is that the prosecution hopes to do this ‘imminently,’” said Gallagher in a one-hour phone interview.

Between two sections on investigations in the Ukraine and Colombia, November’s blistering report says CIA members “appear to have subjected at least 27 detained persons to torture, cruel treatment, outrages upon human dignity and/or rape” in Afghanistan and so-called “black sites” in Poland, Lithuania and Romania.

For Gallagher, the lumping of these countries together signals that the court’s top prosecutor Fatou Bensouda takes seriously her role to carve out no exceptions about its human-rights goals.

“I think we see an International Criminal Court that is truly international in its scope and its objectives of ending impunity,” she said.

Gallagher’s background adds weight to that forecast. During the negotiations that set up the International Criminal Court in 2002, Gallagher had been a member of the Women’s Caucus for Gender Justice. She also worked International Criminal Tribunal for the former Yugoslavia and the Special Court for Sierra Leone, before Liberian despot Charles Taylor had been brought to the dock.

The Hague-based tribunal has come under criticism for what critics believe to be an excessive focus on the African continent, but Bensouda’s wide-ranging investigations suggest she will not be cowed by detractors from any corner.

“She is also not backing down from looking at crimes going on in the African continent, but her view is global,” Gallagher said. “It can usher in a new era for the ICC.”

After the world learned about torture at Abu Ghraib and the Nissour Square shooting, it was Gallagher who took three of the military contractors associated with those incidents to court.

Gallagher has pursued George W. Bush administration officials around the globe – including in Canada, Switzerland, France, Spain and Germany – and the U.S. case against the Virginia-based contractor CACI remains ongoing.

Amnesty International also says a case about U.S. military torture would send a message to the court’s critics.

“The opening of this investigation would show that the ICC will prosecute crimes under international law wherever they are committed – despite politicized claims that the ICC will only pursue claims in the African continent,” Solomon Sacco, a senior legal adviser for the group’s International Justice team said in an email. “Indeed, the prosecutor’s investigation would examine evidence of crimes committed by all-sides, including US and other international forces, which demonstrates that the ICC is functioning independently and non-selectively.”

Sacco spent more than five years as a attorney in the Africa program of a group called Interights, leading a broad campaign at the African Commission on Human and Peoples’ Rights on education, liberty and the rule of law. That work included projects dedicated to human rights and counterterrorism.

U.S. Prosecutors Had Their Chance

As the self-described “court of last resort,” the Netherlands-based criminal tribunal typically refrains from opening an investigation until a country under its investigative gaze has had an opportunity to deliver justice on its own.

The United States has had that opportunity under the administration of President Barack Obama, who vowed early in his term to “look forward and not backwards” on the question of torture. President-elect Donald Trump meanwhile has called waterboarding effective and worth reinstating.

None of the human-rights attorneys interviewed for this article saw a direct line between those statements and the international court’s announcement.

Still, Gallagher with the Center for Constitutional Rights said Trump’s rhetoric could have alarmed the court.

“I think that is of grave concern to anyone around the world who cares about the rule of law and ending impunity in the use of torture,” said Gallagher. “Certainly, the International Criminal Court falls into that category.”

With Obama pushing for continuity between administrations, the president’s National Security Council defended how the United States has responded to torture.

“The United States is deeply committed to complying with the law of war, and we have a robust national system of investigation and accountability that is as good as any country’s in the world,” an email from the council says. “It is longstanding U.S. policy that when credible allegations of wrongdoing by U.S. personnel are made, an investigation is conducted so that appropriate action may be taken. For these and other reasons, we do not believe that any ICC examination or investigation with respect to the actions of U.S. personnel in relation to the situation in Afghanistan is warranted or appropriate.”

Human-rights lawyers have called out the disconnect between the administration’s record and the rhetoric on accountability for torture.

At the 2012 close of an investigation into two U.S. captives who died in CIA secret prisons overseas, then-U.S. Attorney General Eric Holder defined torture narrowly to mean abuse beyond what the Bush administration had permitted.

torture-reportThe Obama White House has likewise faced criticism for delaying the release of the torture report, producing only a heavily redacted summary so far. When the Senate complained about CIA surveillance interfering with the investigation, the administration also sided with the agency.

The international court’s Office of the Prosecutor is among the administration’s critics.

“According to the information available, the prosecution was unable to identify any individual in the armed services prosecuted by courts martial for the ill-treatment of detainees within the court’s temporal and territorial jurisdiction,” the prosecutor said.

Bush’s White House took its campaign to avoid accountability around the world long ago.

Back in 2002, the United States negotiated bilateral agreements with international court member states under the Rome Statute. Unlike the United States, Afghanistan and Eastern European nations now known to have operated CIA black sites on their territory are signatories to that treaty.

Gallagher said many human-rights lawyers did not appreciate the significance of the U.S. diplomatic offensive seeking immunity under the Rome Statute at the time. Few knew then about what countries let the CIA run secret prisons on their soil.

“It’s just interesting certainly to note that these Eastern European states are places where — at the time these bilateral agreements were being negotiated — black sites for the CIA torture program were being operated,” she said.

Whispers that international prosecutors had been eyeing the situation in Afghanistan first surfaced around 2007. A report two years was the first to reference so-called “enhanced interrogation apparently approved by U.S. senior commanders in Afghanistan.”

Secrecy and the Senate Torture Report

Nearly two years have passed since the Senate Select Committee on Intelligence unveiled a heavily redacted summary of “torture report” on Dec. 9, 2014 – slamming the CIA’s rendition, detention and interrogation program as cruel, nightmarish and ineffective.

The committee’s former chairwoman, Sen. Dianne Feinstein, asked Obama on Tuesday to declassify the full 6,700-page report.

Before the president releases it, his administration will have to look at it.

“As far as we’ve been able to tell, nobody in the executive branch has read it,” noted Katherine Hawkins, a senior counsel for the Constitution Project, a Washington-based advocacy group.

Sen. Feinstein sent the report to the executive branch, the president, the FBI, the Department of Defense, the Department of State, the Department of Justice, the Director of National Intelligence, and the CIA and its inspector general.

“Most of those copies have remained under lock, and key, and safe, and not been opened,” Hawkins said. “The one copy that was opened and was uploaded onto a government filing system was destroyed. That’s the CIA inspector general’s copy.”

That office has called destruction of the copy a mistake, but it has never replaced it.

“That makes one skeptical that it was inadvertent,” Hawkins said.

There is still extensive information about the CIA torture program in the public record, including a new book by its so-called “architect” — psychologist James Mitchell — titled “Enhanced Interrogation: Inside the Minds and Motives of the Islamic Terrorists Trying to Destroy America.”

These public disclosures convinced Gallagher that an international court case could proceed quickly, if an investigation is launched.

Should the Office of the Prosecutor proceed with the case, the decision would unleash its investigative team and subpoena powers to supplement an already-extensive public record.

“Depending on far along they already are, based on publicly available information — and, in fact, there is quite a bit of publicly available information – that investigation stage could work quite quickly,” Gallagher said.

Since the international court prosecutes individuals rather than nations, she added that the investigation could implicate U.S. armed service members, CIA officers and former civilian members of government.

Amnesty International’s Sacco declined to speculate on the timeline, but he agreed that any possible investigation has extensive evidence awaiting it at its inception.

“It’s correct that we have a lot information in the public domain, but they have to do their own investigations,” he said. “They haven’t even opened their investigation yet.”

Another factor may be how Obama spends his lame-duck session.

“The ICC can only step in to investigate and prosecute cases if it can show that the national authorities are not willing or able to do so,” Sacco said. “Therefore the U.S. could prevent any ICC proceedings by commencing genuine proceedings in the U.S. It is the very existence of impunity for these crimes that would allow and require the ICC to step in.”

As pressure mounts to hold U.S. torture into account, the White House and its agencies have entrenched their position that they have done all that is necessary. The CIA deferred comment for this article to the State Department, which previously called scrutiny by the international court inappropriate.

When asked whether Obama will release the full torture report, a spokeswoman at the National Security Council who insisted on anonymity responded with a lengthy nonanswer.

After detailing Obama’s executive order disbanding the CIA rendition, detention and interrogation program, and his ultimate release of the redacted summary, the spokeswoman reiterated the president’s prior remarks.

“To be sure, we have owned up to past mistakes and helped to right wrongs – both at home and abroad,” the spokeswoman said in an email. “As the president said in 2014, ‘No nation is perfect. But one of the strengths that makes America exceptional is our willingness to openly confront our past, face our imperfections, make changes and do better.’ That is precisely what we have done and will continue to do.”

Pressed further, she declined to answer whether that would mean more transparency over the 6,700-page report, still cloaked in darkness.

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