The Senate Committee's explicit description of US torture may facilitate legal action
The lawyers of those who’ve spent years in U.S. detention centers like Guantánamo Bay did not expect any surprises in the Senate’s torture report, which described the CIA’s tactics as “brutal”; the prisoners’ lawyers have already heard hours of grim testimony about what their clients endured.
Yet even so, they say, the Senate report could be a breakthrough in cases that have dragged on for years in the U.S. and Europe — and could pave the way for fresh legal action against the CIA’s top officials for permitting torture. “The gaps have been between the CIA agents involved and the higher-ups conducting this policy,” says Wolfgang Kaleck, a lawyer and director of the European Center for Constitutional and Human Rights in Berlin, which has brought criminal cases against the U.S. military and CIA agents in Germany, Switzerland, Spain and France. Kaleck says lawyers will now study the Senate report for signs that the coercive tactics were a policy directed from the agency’s top levels, rather than simply the actions of errant employees. “It would hopefully allow us to argue for command responsibility for torture,” he told TIME on Tuesday.
Take the case of Khaled al-Masri. In 2003, al-Masri, a Lebanese-born German citizen, was mistakenly arrested in Macedonia because his name was similar to a wanted al-Qaeda militant. He was sent to a U.S. prison in Afghanistan as part of the CIA’s “extraordinary rendition” program. In 2012, the European Court of Human Rights in Strasbourg ordered Macedonian officials to reward al-Masri damages for his being “severely beaten, sodomized, shackled and hooded” after his arrest. Yet the Senate report makes clear that al-Masri also suffered abuse at the hands of the CIA, which conducted “enhanced interrogation techniques” that included sleep deprivation.
But the more serious criminal indictments in courts in Germany against the 13 CIA agents involved in Masri’s detention have languished for years because the agents have scrupulously avoided traveling to Europe — where they are likely to be arrested — making a hearing against them effectively fruitless. Another case against the agents, filed in Spain, has been closed. The Senate torture report says that in 2007, the CIA’s Inspector General said the agency, “lacked sufficient basis to render and detain al-Masri.” Yet the CIA opted not to charge the agents involved, arguing that “the scale tips decisively in favor of accepting mistakes” rather than erring on the side of “under-connecting” the dots.
Al-Masri’s is not the only case the Senate report could impact. In a similar trial, an Italian judge convicted 22 CIA agents in their absence in 2009, for the kidnapping of Egyptian cleric Hassan Mustafa Osama Nasr on a street in Milan in 2003, and sending him to a jail in Egypt, where he says he was tortured. The agents were sentenced to jail terms ranging from seven to nine years. But the convictions remain symbolic, since the Italian government, a close ally of Washington, refused to seek their extradition from the U.S.
The Senate’s torture report makes it no more likely that those CIA agents will ever see the inside of an Italian jail. Still, lawyers say the very fact that the agency’s torture tactics are now written into an official U.S. document could make it far easier for them to argue their case in court. This is especially true in countries that are close allies in the U.S.’s anti-terrorism campaign, and which have tried to block cases from being heard on the grounds of political sensitivities. Lawyers believe that the release of the Senate report suggests that government officials are taking torture claims far more seriously than they did before, and they hope that will lead to closer scrutiny not only of CIA abuses but also by the U.S. military. “It’s evidence of a broader social trend, that we are considering more honestly the nature of the torture program,” says attorney Cori Crider, who represents several people the CIA rendered to U.S.-run prisons in the early 2000s; she spoke from Uruguay, where she was meeting her client, Abu Waled Dhiab, one of the six Guantánamo prisoners freed last weekend and flown there.
After years of legal wrangling, Libyan politician Abdel-Hakim Belhaj finally won the right to sue Britain’s intelligence agency MI6, for a joint MI6-CIA operation against him in 2003, when Belhaj and his wife were snatched from their Bangkok home and flown to Libya. There, Belhaj, a conservative Islamist, faced years of torture in one of Muammar Gaddafi’s notorious jails. “The British government has always said those cases cannot go to trial because ‘it will damage our relations with the U.S.,'” Crider says. “But if the Senate is involved in a very detailed examination of torture, that excuse by the British government is exposed for the kabuki that it is.”
The Senate report may have given the lawyers much more ammunition but now they have to take the battle back to the courts.