Balkinization: The Senate Torture Report: Accounting without Accountability:
by Jonathan Hafetz
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. "
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