The Obama administration is following a long historical precedent in flouting the rule of law and refusing to prosecute U.S. officials for authorizing or carrying out torture.
The latest question is, will the administration go a step further and acquiesce to Republican demands, which some say amount to an attempt to rewrite and erase history?
Sen. Richard Burr, R-N.C., the new chair of the Senate Select Committee on Intelligence, wants the executive branch to return "immediately" all copies of the committee's full, uncensored, 6,900-page report on the CIA's torture program.
In early December, the former committee chair, Sen. Dianne Feinstein (D-Calif.), publicly released a heavily CIA-redacted executive summary, and then sent the full classified report to the White House, the attorney general, the Departments of State and Defense, and the FBI, among other executive branch agencies.
Burr's move is seen as an attempt to keep the full details from ever seeing the light of day as the Senate -- unlike the executive branch -- is not subject to Freedom of Information requests. In a Jan. 14 letter, Burr pointedly told President Barack Obama that the report "should not be entered into any executive branch systems of records."
What's more, Burr wants to return to the CIA a damning 2009 internal agency document known as the Panetta Review, which, among other things, refutes claims by former vice president Dick Cheney that CIA methods "absolutely worked." The review was done by former CIA director Leon Panetta and brought to light by former Sen. Mark Udall, D-Colo., who said it conflicted with the CIA's public positions.
Committee member Sen. Ron Wyden, D-Ore., is perhaps the most vocal congressional opponent of returning the Panetta Review to the CIA and the executive branch copies of the full Senate report to Burr. Wyden said that to do so would be "unprecedented and foolish" and "aid defenders of torture who are seeking to cover up the facts and rewrite the historical record."
Wyden said further that the Senate shouldn't allow CIA Director John Brennan to "stick [the Panetta Review] in the shredder." The CIA's leadership "continues to double down on denials about the agency's history on torture, but their claims are contradicted by their own internal review."
Feinstein, now the intelligence committee's vice chair, states on her website that the administration should not relinquish copies of the full report, "which contains far more detailed records than the public executive summary. Doing so would limit the ability to learn lessons from this sad chapter in America's history."
Sen. Patrick Leahy, D-Vt. went further, saying Burr was attempting to "erase history" and that "Republicans who are in denial about this dark chapter in our history will stop at nothing to keep it under wraps."
Burr said he will not hold hearings on the Senate report, which he called "a blatant attempt to smear the Bush administration." Rather, he wants to "put this report down as a footnote in history."
Obama himself has said he wants to "look forward as opposed to looking backwards" when asked about prosecuting Bush officials who authorized and carried out the torture program with 9/11 as their justification.
However, the U.N. Convention Against Torture, which the United States ratified, offers no wiggle room: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
Yet, the only CIA official the Obama administration has sent to jail is a former analyst who was prosecuted under the Espionage Act for confirming the use of waterboarding to the media.
By not prosecuting anyone else, Obama has followed a historical precedent of shielding those involved with torture.
The CIA has been using and refining torture techniques for more than half a century with impunity. The post-9/11 use of torture is distinguished largely by the fact that the torture was carried out by U.S. forces instead of U.S.-trained forces.
In the 1950s and early 1960s, the CIA spent billions developing psychological interrogation techniques and employing a half-dozen leading psychology departments, according to Alfred McCoy, history professor at the University of Wisconsin-Madison and author of A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror.
After experimenting with electroshock and drugs like LSD, McCoy says, the agency found that sensory deprivation, fear and sexual humiliation were far more effective than beatings or physical pain.
The CIA eventually produced torture manuals based on the research, which were used particularly in Vietnam and Latin America.
Its 1963 "KUBARK Counterintelligence Interrogation" manual was used in the Phoenix Program in Vietnam, a program of torture, terrorism and assassination. The authors of the manual -- a guide on the art of using fear, threats and pain to cause debility or psychological regression -- were fully aware of the illegality of their methods, writing that "KUBARK's lack of executive authority abroad and its operational need for facelessness make it particularly vulnerable to attack in the courts or the press."
While the Senate committee report revealed far more sadistic methods -- including forced rectal hydration -- all the basic techniques used by U.S. forces after 9/11 are found in KUBARK's pages: threats, fear, sexual humiliation, the use of stress positions, solitary confinement and sensory deprivation.
A KUBARK descendant was the CIA's 1983 "Human Resource Exploitation Training Manual," whose methods were used by the U.S.-trained Honduran Battalion 3-16, a notorious death squad.
Florencio Caballero, a 3-16 interrogator who later fled his country of Honduras, told The New York Times in 1988 that the CIA trained him and two dozen others. They were taught "to study the fears and weaknesses of a prisoner. Make him stand up, don't let him sleep, keep him naked and in isolation, put rats and cockroaches in his cell, give him bad food, serve him dead animals, throw cold water on him, change the temperature."
Caballero said the CIA's psychological torture methods often degenerated into physical torture, citing a young woman who was stripped, starved, deprived of sleep, beaten, burned, electrically shocked and sexually molested.
The CIA also developed the "Psychological Operations in Guerrilla Warfare" manual to help train Nicaraguan Contras, whom the Reagan administration armed and financed in an effort to overthrow the Sandinista government in the 1980s.
The manual advocated that Contras assassinate Nicaraguan officials, "provoke riots or shootings," and seize power through acts of torture and terrorism.
The training manual, along with the CIA's mining of Nicaraguan harbors, played a part in a ruling by the International Court of Justice that the United States had broken international law and should pay reparations. But the Reagan administration refused to recognize the jurisdiction of the court, which the United States refuses to join.
Another six manuals based on CIA material were used at the U.S. Army's School of the Americas -- now known as the Western Hemisphere Institute for Security Cooperation -- and distributed across Latin America by U.S. Army Mobile Training Teams from 1982 to 1991 during the Reagan and George H.W. Bush administrations.
The Counter Intelligence manual, for example, included priests and nuns in its profiles of terrorists: "The terrorists tend to be atheists, devoted to violence. This does not mean that all terrorists are atheists. In Latin America's case, the Catholic priests and the nuns have carried out active roles in the terrorist operations."
A 1992 Pentagon investigation found that the manuals advocated executions of guerrillas, extortion, physical abuse and coercion. The findings, which were kept secret under then-Secretary of Defense Dick Cheney, said the six manuals were based, in part, "on old material dating back to the 1960s from the Army's Foreign Intelligence Assistance program, titled 'Project X.' "
Project X, a top-secret global counterinsurgency program, was part of the Phoenix Program, said Rep. Joseph P. Kennedy II*, D-Mass., who conducted a five-year campaign to close the School of the Americas.
Nowhere in the Pentagon report, he said, was there any apology for the horrific misdeeds done "at the hands of those who were taught to torture and murder by elements within our own government."
Kennedy was outraged that no one was held accountable, that the Pentagon report simply said the manuals somehow "evaded the established system of doctrinal controls" and investigators "could find no evidence that this was a deliberate and orchestrated attempt to violate Department of Defense or Army policies."
In 1988, when President Ronald Reagan sent the Convention Against Torture to the Senate, saying its ratification "will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today," his own intelligence agency had produced eight torture and assassination manuals.
No one was ever prosecuted for authorizing, developing, using or teaching any of the torture material. The use of proxies to do the dirty work provided earlier U.S. authorities far more plausible deniability than officials under George W. Bush's administration were able to achieve, in part because much of the torture was captured on digital camera.
In 2008, Maj. Gen. Antonio Taguba -- who investigated the abuse at Abu Ghraib prison in Iraq for the Pentagon -- stated: "There is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account."
As it turned out, Obama made it clear from the day he took office in 2009 that no one would be prosecuted. "When it comes to national security," he said, "what we have to focus on is getting things right in the future as opposed to looking at what we got wrong in the past."
After the Senate report came out in December 2014, detailing the extent and depravity of the torture program, Obama came under increasing fire.
Udall blasted the White House for failing to provide leadership and help the "public understand that the CIA's torture program wasn't necessary and didn't save lives or disrupt terrorist plots." He called for Brennan's resignation, saying, "The CIA has lied to its overseers and the public, destroyed and tried to hold back evidence, spied on the Senate, made false charges against our staff, and lied about torture and the results of torture. And no one has been held to account."
The American Civil Liberties Union and Human Rights Watch jointly filed a formal request to the Justice Department to appoint a special prosecutor, calling the torture program the work of a "vast criminal conspiracy," which made the crimes "more shocking and far more corrosive to U.S. democracy."
Amnesty International USA executive director Steven Hawkins added that President George W. Bush "should have been investigated long ago for his role in authorizing this program."
The Veteran Intelligence Professionals for Sanity called for the release of the full report. The group includes Daniel Ellsberg, who leaked the Pentagon Papers, and former CIA analyst John Kiriakou, who is currently serving 30 months in prison for revealing details of the torture techniques.
Another member, former career CIA analyst Ray McGovern, who chaired the National Intelligence Estimates, urged his generation "to force a timid President to stop calling felons 'patriots' and, instead, do his duty in holding them accountable. Stern enforcement of both U.S. and international law is the only deterrent against this kind of unconscionable abuse happening again."
McGovern wrote, "Now, despite his transparent attempts to keep his distance from the horrid disclosures in the Senate committee report, Obama is enmeshed in a wide web of consequential lies. He is, ipso facto, part of a cover-up."
Perhaps, as some have suggested, Obama's decision on whether to return the copies of the Senate report will be influenced by his need to be shielded by the next administration for the drone assassination program he has overseen for six years. What seems sure is that the history of not prosecuting torturers will repeat itself.
*An earlier version of this story misidentified the congressman, for which NCR apologizes.
[Linda Cooper and James Hodge are the authors of Disturbing the Peace: The Story of Father Roy Bourgeois and the Movement to Close the School of the Americas.]
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