Strategy Behind Ongoing Campaign to Cover Up CIA Torture Program Revealed

A second day dawns following the release of the Senate report on CIA torture and it is clear where the action is. The action is going to be in holding the United States accountable to international legal conventions to which it is signatory.

The take-away from two different articles (one by Somini Sengupta, "Americans Involved in Torture Can Be Prosecuted Abroad, Analysts Say"; the other by Joseph Goldstein and Rick Gladstone, "Afghan Leader Expresses Shock at Torture Revelations") is a statement by United Nations high commissioner for human rights, Hashemite scion Prince Zeid Ra’ad Zeid al-Hussein, making clear that “The [International Convention on Torture] lets no one off the hook — neither the torturers themselves, nor the policy-makers, nor the public officials who define the policy or give the orders.”

The Obama administration has argued as recently as last month that the U.S. is in compliance with the International Convention on Torture because of a four-year Department of Justice criminal investigation into the CIA torture program led by federal prosecutor John H. Durham. Durham recommended against bringing charges and Attorney General Eric Holder agreed.

Now the Gray Lady is going to court to access documents from this DOJ investigation in order to allow the public to see some of the interviews with CIA officials and understand the reasoning why no charges were brought by Durham. Charlie Savage has the must-read story, "U.S. Tells Court That Documents From Torture Investigation Should Remain Secret":

Last month, in a presentation in Geneva before the United Nations Committee Against Torture, which oversees compliance with a global anti-torture treaty, the Obama administration pointed to Mr. Durham’s investigation as having fulfilled the United States’ obligation under the treaty to investigate torture. 

The United Nations panel expressed skepticism about the Durham investigation, pressing for details like whether Mr. Durham’s team had spoken only with government officials, or whether it also interviewed any current or former detainees as part of the investigation. A Justice Department lawyer who was part of the delegation defended the investigation as vigorous and told the committee that Mr. Durham’s team had interviewed about 96 witnesses. But he declined to identify them because no charges were filed. 

The Senate and Justice Department investigations trace back to a December 2007 article by The Times that the C.I.A. had destroyed videotapes of interrogation sessions. The Intelligence Committee started an oversight investigation, and the attorney general at the time, Michael B. Mukasey, appointed Mr. Durham to lead a criminal inquiry. 

In 2009, as President Obama took office, the committee voted to expand its investigation into the C.I.A. program. Months later, Mr. Holder announced that he was expanding Mr. Durham’s mandate to look into whether charges should be brought for any interrogation that went beyond approved techniques. 

In 2010, Mr. Durham, an assistant United States attorney in Connecticut, recommended against any charges connected with the tape destruction. The next year, he recommended closing the preliminary investigation into the treatment of about 100 detainees in C.I.A. custody, but elevated two other incidents that resulted in detainee deaths into full investigations. In 2012, he also recommended closing those without any indictments. 

“In light of our assessment of the evidence, the reports thoroughly analyzed the type and nature of criminal charges that could be brought against suspected wrongdoers, along with various defenses that could be raised in opposition to any such charges,” Mr. Durham wrote in his declaration filed on Tuesday. “The reports also discussed what the evidence showed and did not show, and evaluated previous investigations conducted by other entities.”

Accessing these investigatory documents could be the Rosetta Stone for deciphering the CIA torture program. That is why the Obama administration is going to court to block their release.

Charlie Savage does an excellent job concisely tracing the history of both the DOJ and Senate probes to the illegal destruction of the torture tapes in 2005.

Savage also does a superb job of deftly unpacking the mechanics of the cover-up actively perpetrated by the Obama administration. The main line of attack by the CIA and its Republican defenders is that the Senate report is false because it includes no interviews with CIA personnel responsible for the torture. That wasn't by choice of the Senate investigators; that was because CIA personnel wouldn't talk to Senate investigators because of Durham's active criminal investigation.

Savage deftly describes the mechanics of the ongoing cover-up:

The Justice Department said in a statement on Tuesday that its investigators had looked at the full version of the Senate Intelligence Committee report “and did not find any new information that they had not previously considered in reaching their determination,” adding that Mr. Durham’s “inquiry was extraordinarily thorough and we stand by our previously announced decision not to initiate criminal charges.” 

Mr. Holder’s decision in 2009 to open a criminal investigation into the C.I.A.’s treatment of detainees abroad had prompted a political backlash and made it difficult for congressional investigators to speak with current and former agency officials, since they faced legal jeopardy. 

Citing the fact that the Senate investigation would have to rely only on internal C.I.A. documents and not interviews with witnesses, committee Republicans withdrew their support for it. And since the report’s release, defenders of the C.I.A. have argued that the report should not be seen as an accurate and complete historical account.

Michael Davidson, who was the top lawyer for the Senate Intelligence Committee until his retirement in 2011 and who worked on the first four years of its investigation, portrayed the executive branch’s stance as a Catch-22. 

“One agency of the executive branch (the C.I.A.) complains that no one was interviewed,” he said in an email. “Another element of the executive branch (D.O.J.) actually conducted lots of interviews,” he added, referring to the Department of Justice.

“Its investigation made it difficult for a Senate committee to conduct interviews. So check there. Then D.O.J. objects to disclosing them. So checkmate there. That leaves the C.I.A. free to complain about lack of interviews. Pretty neat,” he said.

It is too early to say that we have to returned to the social ferment of the 1970s when the Church Committee and the Pike Committee shined a light on the CIA's family jewels, when the Weather Underground still roamed the land, when athletes were activists. But it seems like we're getting there.