Leaks, Secrecy and the SSCI Report
Sara McDermott, Public Interest Law Intern

Last Wednesday marked the 25th anniversary of the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) entering into force.  The Convention has been memorialized as the International Day in Support of Victims of Torture, observed every year on June 26.

In years past, the Obama administration has issued a statement honoring the day and recommitting America to the elimination of torture and other forms of cruel, inhuman, or degrading treatment or punishment. This year, however, the administration remained silent, at least officially.

Late in the day on June 26, news leaked that on the following day, CIA Director John Brennan planned to deliver the agency’s response to the Senate Intelligence Committee’s 6,000 page report on the CIA’s treatment of detainees after September 11 (SSCI report). The committee chair, Senator Dianne Feinstein (D – CA), has called the SSCI report “one of the most significant oversight efforts in the history of the United States Senate.” Senators familiar with the report have said that concludes that the CIA’s rendition, detention and interrogation program was brutal, ineffective at securing actionable intelligence, and a terrible mistake.

But the basis for those conclusions, and indeed the conclusions themselves, remain unavailable to the American public because the report remains classified. So, too, is the CIA’s response.  As a result of this culture of secrecy, none of the actual facts contained in these documents have yet been conveyed to the American public.  When it comes to the issue of torture and other forms of detainee abuse post 9/11, we are fast heading down a dangerous road of forgetfulness and denial.

Senator Mark Udall (D – CO) expressed his frustration with the way this process has been handled: “The continual leaks of inaccurate information from unnamed intelligence officials are embarrassing to the agency and have only hardened my resolve to declassify the full Committee Study…The only way to correct the inaccurate information in the public record on this program is through the sunlight of declassification.”  Senator Udall is right about the need for more transparency, and both Congress and the Obama administration should heed his words.

Each year, International Day in Support of Victims of Torture has a particular theme; this year’s theme was the “Right to Rehabilitation.”  In 2012, the Committee Against Torture, a body of 10 independent experts set up to monitor the implementation of the Convention Against Torture, issued a General Comment (Number 3) to guide the implementation of the CAT’s Article 14.  The Article requires that states ensure in their “legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.”  General Comment 3 explains and clarifies Article 14’s simple directive in important ways. The comment defines “redress” as encompassing five forms of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.  Is also makes clear that there are both procedural and substantive components to states’ obligations: they must ensure that they have the institutional capacity to investigate and adjudicate complaints of torture, and that victims obtain full and effective redress.

The foundation for victim redress and ensuring non-repetition of torture is truth.  Yet, this year, CAT’s anniversary was marked by a stark reminder of the official veil of secrecy that continues to surround the CIA’s rendition, detention and interrogation program, one that has confused public debate and stood in the way of a durable national consensus against torture.

In April 2013, The Constitution Project’s (TCP) bipartisan Task Force on Detainee Treatment released a report that unanimously concluded that the United States tortured and abused people in its custody following the 9/11 attacks, and that such torture and abuse was widespread.  The Task Force further concluded that “[t]he United States has not complied with [Article 14 of CAT]” with respect to those victims.  Secrecy is one of the primary reasons for that failure.

As our Task Force explained, the April 2009 release of several Office of Legal Counsel (OLC) memoranda that described the CIA’s “enhanced interrogation techniques” in detail was the “high-water mark for the disclosure of evidence” about torture.  The president released the memos because he feared that withholding them would “contribute to an inaccurate accounting of the past,” and put the country in peril of repeating its past mistakes.

Since the release of the OLC memos, the administration has resisted disclosing further evidence of torture that the CIA and military would prefer be kept secret.  Notably, and despite pressure from many in the human rights and civil liberties communities including TCP, President Obama has taken no position – at least publicly – on the declassification and release of the SSCI report.  Its continued classification has prevented an official accounting of the full extent and nature of America’s role in the torture of detainees.

Declassifying and making public the SSCI report would allow the nation as a whole to move one step closer to rehabilitation, and ensure that torture is not repeated.  From what senators familiar with the SSCI report have said and what TCP’s Task Force found, withholding this report, like withholding the OLC memos, would almost certainly “contribute to an inaccurate accounting of the past.”

The continued refusal to have an open, honest conversation—about our role in torturing detainees after September 11, about whether that torture was effective, and about whether we will continue to work with the international community towards the eventual elimination of torture and rehabilitation of torture victims—is deeply troubling. It is also especially striking in light of the protests in honor of June 26 that took place on the White House front lawn.

It is unacceptable to believe that our legacy of torture can simply be forgotten, papered over as though it never happened. The United States must take a stand, or risk further losing its credibility and moral authority on the international level.  The first step is clear: Congress and the Administration must agree to release the SSCI report, and all executive branch agency responses along with it. No more secrets. No more leaks.

Rehabilitating America’s image in the world requires an open debate, in democratic fashion, over the truth of our activities at home and abroad.  The United States government must publicly acknowledge the full scope and scale of what was done in the public’s name in order for this kind of open debate to become possible.  An informed conversation about America’s use of torture after September 11 is necessary in order to reach a durable consensus against torture and to ensure that such grave mistakes are never repeated.  Perhaps then we can have a meaningful observation of the International Day in Support of Victims of Torture.

The views expressed in this blog post are not necessarily those of TCP, its committees, or boards. 

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