By Julian Hattem - 12/14/14 09:00 AM EST
Capitol Hill appears unlikely to push for prosecutions on current or former CIA officials for their role in brutal interrogation tactics formerly employed by the agency.
Lawmakers on both sides of the issue have seemed opposed to the notion that either the U.S. or foreign governments should press charges against some CIA officials, in the wake of a blistering Senate Intelligence Committee report on the use of waterboarding, “rectal feeding” and other so-called “enhanced interrogation” techniques.
“Speaking as a former prosecutor, I think it’s very difficult to make a case against someone who is following the advice of the Justice Department, even if the legal advice was flawed,” said Rep. Adam SchiffAdam SchiffClinton’s email troubles deepen House passes policy bill for intelligence agencies Sunday shows preview: Sanders opens up about battle with Clinton MORE (D-Calif.), a member of the House Intelligence Committee who supported the release of the Senate panel’s report.
He did say, however, that the department should investigate whether any officials deviated from its legal advice.
The Justice Department has already said that investigators “did not find any new information” in the report that would prompt them to reopen a closed inquiry into the CIA’s practices.
Foreign officials have been more critical, however, and have indicated that domestic prosecutions could be possible in other countries.
There’s also the unlikely possibility that American officials could be tried at the International Criminal Court. Even though the U.S. is not a party to the treaty establishing the court, some of the activities occurred at “black sites” that have ratified the treaty, potentially opening CIA officials up to prosecution.
Juan Méndez, the United Nations special rapporteur on torture, said on Thursday that the Senate Intelligence Committee’s report should be just “a first step in the direction of fulfilling other U.S. obligations under Convention against Torture, namely to combat impunity and ensure accountability, by investigating and prosecuting those responsible.”
Human rights advocates and critics of the CIA’s former tactics, which many refer to as torture, certainly would welcome the call.
“There are many nations around the world where they can prosecute these crimes, and I think there probably is concern for some of the people indicted by the report about traveling abroad right now,” said Laura Pitter, senior national security counsel at Human Rights Watch.
Just because there might be a legal option, however, doesn’t mean that it’s likely to happen.
“Even though there is legal authority for the prosecution in this time in foreign domestic systems, I think that politically it might not be viable,” conceded Sarah Dávila-Ruhaak, director of the John Marshall Law School’s international human rights clinic.
On Capitol Hill, there does not seem to be much support for the idea of foreign prosecutions.
“If the cases are not prosecutable here because people are following the opinions of the Office of Legal Counsel, I don’t think it would be appropriate to ignore that evidence anywhere,” Schiff said.
Sen. Mark UdallMark UdallEnergy issues roil race for Senate Unable to ban Internet gambling, lawmakers try for moratorium Two vulnerable senators lack challengers for 2016 MORE (D-Colo.), a member of the Senate Intelligence Committee and one of the most aggressive forces for releasing its report, gave a nearly hour-long speech accusing the CIA of continuing to lie to its congressional overseers. He declined, however, to make a robust call for prosecutions either at home or abroad.
Republican critics of the Senate panel’s report, meanwhile, have used the global calls for justice as proof that the report was misguided from the beginning.
“This is that collateral damage now, where countries are going to take full advantage of it and try to kick around the United States,” outgoing House Intelligence Committee Chairman Mike Rogers (R-Mich.) told reporters at a briefing hosted by The Christian Science Monitor on Friday.
“We ought to push back on any opportunity, on any effort that they would make to go after U.S. citizens who were working on behalf of the United States government to protect the Untied States and stand up for our national security,” he added.
Instead of prosecutions, some Democrats have pushed for secret documents to be revealed and for the agency to start coming clean with Congress.
Udall, for instance, accused the CIA of continuing to lie to Congress and called for the agency to declassify an internal review of the interrogation practices led by former Director Leon Panetta, which the agency has long withheld.
In a rare press conference on Thursday, CIA head John Brennan maintained that the “Panetta review” is an "internal deliberative document" and won’t be handed over.
Udall has also called for Obama to “purge” his administration of any officials who participated in the CIA program. Senate Intelligence Committee Chairwoman Dianne FeinsteinDianne FeinsteinClinton’s email troubles deepen Top Dem: CIA officials thought spying on Senate ‘was flat out wrong’ Senate panel advances spy policy bill, after House approves its own version MORE (D-Calif.) has called for a new law to codify President Obama’s executive order banning the controversial CIA practices.
With Republicans taking over both chambers of Congress, however, it seems unlikely that there will be too much formal action on Capitol Hill or increased pressure for intelligence agencies to be more transparent.
Instead, outside organizations might be prompted by the Senate report to try and expand the record on the CIA’s history, which could serve as the ultimate judge of the so-called “torture report”’s lasting impact.
“I suspect we’re going to see a wave of new FOIA lawsuits,” said Stephen Vladeck, a law professor at American University.
“The real question here is whether the torture report is going to remain a contested moment in the writing of this history or a watershed moment in the movement toward complete transparency for post-9/11 detainee abuses,” he added.
“I think at the end of the day, until and unless there’s an unassailable picture of what actually happened, I think we’re going to be trapped in this debate over who did what to whom, what was necessary and what wasn’t.”