an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Senate Torture Report: Accounting without Accountability
In her speech on the Senate floor marking the Senate Select Committee on Intelligence’s release of its long-awaited report on the CIA’s Torture Program, Senator Dianne Feinstein (D-CA) declared that the report would “show the world that we are in fact a just and lawful society” and a society "governed by law." The Senate report does much, and much that is good, but what it does not do is vindicate either justice or law.
The report provides the most comprehensive examination to date of the CIA Torture Program. Above all, it helps strip away the layers of secrecy and expose the misrepresentations to better inform the American public what actions its government took in the name protecting its security. In that sense, the report serves an informational role vital to a democracy and the deliberative process on which it depends.
But accounting should not be confused with accountability. It is crucial to remember that the torture and other misconduct committed by U.S. officials was not simply immoral, barbaric, and counterproductive. It was also criminal, prohibited under both U.S. and international law. In other countries, detailed investigations into human rights violations helped lay the groundwork for subsequent prosecutions. (Argentina and Guatemala are two examples). But President Obama has already suggested that the Senate report will not cause him to reverse his original decision not to pursue a full criminal investigation. The President called the report’s findings “troubling,” but cautioned against “refighting old arguments” and, once again, urged the country to look forward, not backward.
To be sure, political winds in the U.S. may shift, or another country may prosecute U.S. officials under international law. (Prosecutions under universal jurisdiction have previously been attempted in several European countries). But history, not law, may well be the final arbiter of America’s Torture Program. If so, the report’s main contribution will be the factual record it provides to us now and to future generations.
Much of the information about the interrogation methods was already known, although the report includes many new details (from finding that more detainees had been water boarded than previously acknowledged to describing additional interrogation methods like “rectal feeding” and “rectal hydration”). The report’s more significant findings describe the degree to which the CIA mismanaged the detention program, quashed internal opposition, and misrepresented the program to Congress, to the President and senior administration officials, and to the American public (although, in my view, the report goes too far in absolving others outside the CIA). Most importantly, the report counters, in painstaking detail, the claims that “enhanced interrogation methods” produced valuable intelligence and saved lives, including the claim that such methods helped the U.S. find Osama bin Laden in Pakistan.
The report thus makes a compelling case that torture does not work. Most professional interrogators agree. While I confess to no such expertise, I have represented a number of detainees accused of terrorism and have always found that legitimate methods are the most effective way to get suspects to cooperate. Apologists will continue to defend the Torture Program, as the immediate backlash to the Senate report shows. But even if they could show torture had provided some useful information, it shouldn’t matter. The criminal prohibition against torture does not, and should not, rest on utilitarian arguments. And to the extent it does, it will remain vulnerable to the claims of the next Cheney or Tenet that torture works.
The United States is not the first society to confront the commission of grave crimes by the state. Other countries have committed torture and other atrocities, and done so on a much wider scale. In some instances, they have not opted for a traditional criminal law approach and instead pursued other accountability mechanisms. But, as Kevin Jon Heller observes, even a South-African-style Truth and Reconciliation Commission conditioned amnesty on admission of wrongdoing. Moreover, most other societies confronting a past of systematic, state-sponsored human rights violations are also transitioning from a period or internal armed conflict or a change in their political order. The fear is that prosecutions will derail that process.
While the opposition to criminal prosecutions remains undeniably intense, the U.S. faces no comparable choice between peace and justice. The trade-off is one of politics, not peace. And, so far, politics has trumped law. There are other ways for the U.S. to achieve a measure of accountability, from noncriminal sanctions against those responsible to providing remedies to victims. But to date other accountability mechanisms have been not taken hold. Instead, we are left with accountability through accounting.
And herein lies the Torture Report's central paradox. It is because the Senate report provides such devastating details into the Torture Program that the stakes for the rule of law are now so high. By demonstrating the depth and degree of America’s lawlessness, the Torture Program shines the light even more brightly on law’s absence in addressing the crimes of the past.