Torture, terror: There’s more than one way to skin a cat

Part 1 of 2

Cat lovers take comfort. My title is just a turn of phrase, an adage that serves as a metaphor for what I wish to write about.  

In 2009, Attorney General Eric Holder assigned John Durham as Special Prosecutor to examine whether CIA interrogations of suspected terrorists were illegal. But the catch should have been clear from the start: Holder stipulated that there would be no prosecutions of CIA personnel “who acted in good faith and within the scope of the legal guidance given by” Bush administration lawyers.  That guidance consisted of the infamous Yoo/Bybee “Torture Memos,” legal memoranda that later were withdrawn due to their indefensible tendentiousness and legal sleight of hand. Given that warning, perhaps no one should have been surprised when Durham declined to prosecute any cases, including two in which the CIA’s captives died. 

CIA contractors and agents perpetrated brutal and abusive treatment on its captives that plainly amounted to torture under federal and international law.  Included in this treatment was: waterboarding, not “simulated drowning,” as writers like to put it, but actual drowning of a strapped-down captive until the interrogators decided to stop (Abu Zubaydah [AZ] was waterboarded 83 times); “walling,” slamming a defenseless victim into a wall by slinging him against it with a towel wrapped around his neck; confinement for long periods in a coffin-like box or a smaller “dog box,” in which he could only be crammed when severely contorted; sleep deprivation, at times for as long as 180 hours; subjection to extreme cold while naked — the list could go on. Sometimes the torture continued around the clock.

At times, the CIA’s torture was even more brutal than the techniques the government’s legal memos approved. Finding and Conclusion #14 in the Senate Committee on Intelligence’s authoritative “Study of the [CIA’s] Detention and Interrogation Program” published in December of 2014, stated: “CIA detainees were subjected to coercive interrogation techniques that had not been approved by the Department of Justice (DOJ)...” in the belatedly disavowed “Torture Memos.”  For brevity’s sake, I will mention only two examples, though there were many more. Government investigators who viewed videotapes of AZ’s interrogations (which tapes were destroyed by the CIA in violation of multiple court orders, yet —incredibly — no one went to jail) reported that, “unlike the (waterboarding) method described in the DOJ memorandum, which involved a damp cloth and small applications of water, the CIA interrogators continuously applied large volumes of water to the subject’s mouth and nose.” Further, an interrogator threatened AZ by stating: “If one child dies in America, and I find out that you knew something about it, I will personally cut your mother’s throat.”  

Clearly, CIA contractors and agents exceeded the approvals in the DOJ “Torture Memos,” yet even they were not prosecuted. Game, set and match to the torturers? Wait a bit. 

In 2015, the ACLU filed suit on behalf of three former detainees, one of whom died while in CIA custody. The plaintiffs sought relief under the Alien Tort Statute, which grants federal court jurisdiction for torts committed in violation of the laws of nations (international law), alleging that they had been subjected to an “experimental torture program ... designed, implemented, and personally administered” by the two defendants, James Mitchell and John “Bruce” Jessen,  psychologists who had contracted with the CIA. Not long before trial, the case was settled. We will never know how much the plaintiffs were paid to convince them to forego a trial — the settlement agreement surely requires that such be kept confidential — but the outcome was unprecedented for U.S. courts. Surely, though, the dollar amount must have been significant.

But that was not the first time money damages were recovered by captives who were tortured in CIA black sites. On July 24, 2014, in “Husayn (Abu Zubaydah) v. Poland,” the European Court of Human Rights (ECHR) ruled that Poland had violated AZ’s right to be free from torture or inhuman or degrading treatment or punishment under Article 3 of the European Convention on Human Rights, and ordered the Polish government to pay him €130,000 (about $150,000). Poland knew, the Court found, that the CIA maintained a secret black site on its territory, where it interrogated and tortured prisoners, including AZ, and facilitated these activities. (In a companion case, the ECHR awarded Abd al-Rahim al-Nashiri, the suspected planner of the lethal attack on the USS Cole, €100,000, to be paid by Poland.) 

AZ filed a similar suit at the ECHR against Lithuania, another country chosen by the CIA for a secret black site. The Court has not yet rendered a judgment in that case.  

Charles Church is a human rights lawyer who lives in Salisbury. Next time, he will examine a potential avenue for criminal prosecution of U.S. torturers and those who authorized, aided and abetted them. Note: Church serves on two legal teams which represent AZ; any views Church expresses are his own, and not necessarily those of the teams.