North Carolina is bound to act on torture

By Deborah Weissman

It took more than a decade after the inauguration of the “War on Terror” for the United States to acknowledge egregious human rights violations through its torture and extraordinary rendition program.  Notwithstanding the admission, the failure of elected officials to hold individuals complicit in these programs accountable might suggest that the United States and the world have moved on. 

In fact, new developments have reset the starting point for obtaining accountability and reparations for torture.  In late 2014, the United States appeared before the UN Committee Against Torture, pledged unequivocally to uphold the Convention Against Torture, and agreed that no exceptions that could be claimed.  Indeed, torture is prohibited by the terms of the treaty; international law requires that accountability and reparations must be provided when the prohibition is violated.  Are we not to take the words of the government, given solemnly and unequivocally, as true?  These developments require us to press for the long-awaited accountability for the wrongdoings perpetrated by the torture program.

The landscape of accountability has shifted through the release of the Senate Intelligence Committee “Torture Report,” which corroborated what anti-torture advocates had claimed since the “War on Terror” began.  Despite its redactions, with the declassification of the factual account of the torture program, the government can no longer stand on its claim of state secrets in an attempt to deny torture victims the right to a remedy for the harms they have suffered.

There have also been important developments on a global level as human rights institutions continue to pursue transparency and remedy.  Decisions by international and foreign courts, especially in the UK and Australia—nations with which we share fundamental legal principles—have affirmed the obligations of nations to investigate torture and to hold accountable those responsible for such acts.  The European Court of Human Rights has issued decisions condemning torture and extraordinary rendition and proclaiming the rights of victims to obtain remedy and reparations.   These cases demonstrate that justice for victims of torture and extraordinary rendition is possible through adjudication, and negate the proposition that such adjudication endangers national security. 

The issue of torture and extraordinary rendition will persist until settled through compliance with the law.  That brings us to the responsibilities of North Carolina and its political subdivisions.  North Carolina has served as a hub for extraordinary rendition.  A report endorsed by international human rights experts revealed the ways in which North Carolina, its political subdivisions, and Aero Contractors, a corporation based in Johnston County, NC and housed at the Johnston County Airport, were directly and indirectly responsible for carrying out kidnapping and torture.  International law obliges North Carolina to investigate, hold those responsible for torture accountable for their acts, and provide reparation to the victims. The Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and Convention Against Torture—the latter two treaties signed and ratified by the United States—prohibit extraordinary rendition and torture by any state, group, or person. 

Human rights treaties were written with the expectation that they would be implemented regionally and locally. They provide a set of standards to which local governments must adhere in administering their own laws and policies.  States and local governments are indispensable for the implementation of human rights treaties.  Where the United States has a formal obligation to comply with international law, the United States Constitution's Supremacy Clause states that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

North Carolina has not been prevented from acting because of the federal government’s refusal to act.   Officials have suggested that North Carolina can take no action in matters of foreign affairs.  However, extraordinary rendition and torture are unlawful acts that should not be confused with foreign policy within the purview of the federal government.  It is time for the state of North Carolina to comply with its human rights obligations.

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Deborah Weissman is the Reef C. Ivey II Distinguished Professor of Law at University of North Carolina. There she was the Director of Clinical Programs at UNC School of Law from January 2001 through July 2010. Weissman serves as an Executive Committee member for The Consortium in Latin American Studies, at the University of North Carolina at Chapel Hill and Duke University, and as a member of the Advisory Board with The Institute for the Study of the Americas at the University of North Carolina. In 2013, she received the Frank Porter Graham Award from the North Carolina American Civil Liberties Union for outstanding civil rights work. With her students, Weissman published a report The North Carolina Connection to Extraordinary Rendition in 2012. She is also a member of the NCCIT Advisory Board.

On CIA torture, the President must take action

By John Kiriakou

John Kiriakou was interviewed Oct. 27, 2015, by WRAL journalist David Crabtree at University of North Carolina.  (Photo credit: © Jerry Markatos)

It has been my personal experience that, with only one or two exceptions since the creation of the Church Committee in 1975, Congress has been generally loathe to challenge the CIA. There’s very little oversight, and, certainly, there are few, if any, examples of Congress telling the CIA “no.” 

That’s why the release last year of the Senate torture report was such a momentous event. Why was it momentous? Because the CIA’s torture program was worse than most Americans expected. The Senate Select Committee on Intelligence said that Agency officers used interrogation methods that had not been approved by either the Justice Department or by CIA Headquarters; the Agency actively impeded investigations and oversight of the program, not only by the White House and Congress, but even by its own Inspector General; and CIA officers tortured as many as 26 people who didn’t meet the legal standards for detention. Many were likely innocent of any ties to terrorism. 

There is no room for a middle ground response. There is still time for the President to order the Justice Department to prosecute violations of the law.

The CIA has admitted only to waterboarding three prisoners—Khalid Shaikh Muhammad, Abu Zubaydah, and Abd al-Rahim al-Nashiri. But it took the Senate report to tell us about Ammar al-Baluchi, who was arrested in Pakistan and sent to a secret CIA prison, where he was repeatedly dunked in a tub of ice water.  Interrogators held his head under the water, beat him repeatedly with a truncheon-like object, and slammed his head against the wall.  Baluchi’s attorneys say he suffered head trauma during CIA interrogations. This was not authorized by the Justice Department. So why weren’t the perpetrators charged with a crime?

The SSCI’s chairwoman at the time of the report’s release, Senator Dianne Feinstein, said the report “exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never be allowed to happen again.” She’s right. 

And there’s a precedent for how the government has confronted similar actions in the past. The Washington Post on January 21, 1968 published a photo of a U.S. soldier waterboarding a North Vietnamese prisoner. The Defense Department investigated, court-martialed the soldier, and convicted him of torture. It was wrong in 1968 to commit torture and it was wrong in 2002. It should still be wrong—and prosecutable—in 2015.

Some current and former CIA leaders will argue that they had the legal authority to carry out what they euphemistically call “enhanced interrogation techniques” and that torture allowed us to collect actionable intelligence that saved American lives. I was working in the CIA’s Counterterrorism Center at the same time they were and I can tell you that they’re lying. 

Torture may have made some of us feel better in the aftermath of the September 11 attacks. It may have made us feel that we were avenging our fallen compatriots who were killed that day. But there was no information gathered through torture that saved American lives. The report found that “the harsh interrogation methods did not succeed in exacting useful intelligence.”  That’s a categorical statement.  Torture didn’t work.  Period.

Useful intelligence, however, shouldn’t even be the criterion. The question isn’t really whether torture works. The question is whether it is right, whether it is moral.

After all, murder works. But we don’t murder people.  At least, we’re not supposed to. Rape works. But we don’t rape people. Beating children in front of their parents works. But we don’t do that. There has to be a red line. If we are to maintain our role as a beacon of hope for the rest of the world, as a nation where human rights are respected, then we have to oppose torture absolutely. That begins with the President. And it’s past time for him to take action.

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John Kiriakou is a former CIA Counterterrorism Officer and former Senior Investigator for the Senate Foreign Relations Committee. To learn more about John Kiriakou, please visit his website.