© Getty ImagesDeclassify the post-9/11 torture program
As Joe Biden settles into his presidency, in addition to facing a pandemic and economic crisis, he will hear demands for accountability. If President Biden is going to help restore a robust commitment to the rule of law, he will need to reach further back than Donald Trump and the mob that stormed the Capitol on Jan. 6. He will also need to address the abuses that followed the 9/11 attacks - specifically, the CIA-run torture program.
When President Obama took office, he immediately acted to end the torture program and close the secret CIA detention facilities. But he pledged to "look forward, as opposed to looking backward," a folksy remark that signaled a widespread policy. Not only has almost no one been held to account for detainee abuse, the torture program itself remains classified.
Classified or not, the secret is out. News organizations have reported details. The program's architects have proudly discussed their role. Money has been made on books from torture "insiders." The victims, however, have always known what happened, though the intention was to ensure they could never tell anyone. As one interrogator told at detainee, "We can never let the world know what I have done to you."
Though most torture victims survived, those not released remain secluded at Guantanamo, in a separate camp for so-called "high value" detainees, with restricted access to lawyers and medical professionals because they might confirm what everyone already knows: the US government tortured them.
After the 9/11 attacks, the CIA created a program of "rendition, detention and interrogation" that included authorizations for - and the actual commission of - multiple criminal acts including kidnaping, torture, assault, sexual assault and other offenses. In 2012, the Senate Intelligence Committee completed a sweeping, 6,000-plus page report on the program. The executive summary, more than 500 pages released in 2014, was declassified in part, leaving a network of redactions that shielded those responsible from accountability and kept the program itself classified.
It's hard to fathom why the CIA's torture program should remain classified. Under federal law, information should be classified only when the information is owned, produced by, or under the control of the U.S. government, and when unauthorized disclosure reasonably could be expected to result in damage to national security. Neither standard could be met at this point. Maybe the government's aim was to maintain the victims "under the control of the U.S. government" forever, but surely it can't be right that the way to keep information classified is by holding people indefinitely against their will.
Continued classification of the entire program serves only to shield the names of the torturers from their victims, prevent the victims from obtaining adequate medical care, and create tremendous logistical burdens in the military commissions before which some of the victims are being prosecuted. Even if some information must remain classified, such as agreements between countries, an effort to make the rest public would allow Americans and the U.S. government to grapple with this dark chapter in history, which continues to have ramifications for the United States and the world.
The Obama administration did go forward with some criminal investigations. But they were limited to instances when interrogators exceeded legal authorizations, ignoring the fact that the authorizations themselves were flawed. Nearly all civil suits by current and former detainees have been dismissed. Some of the torturers were rewarded with senior positions in government.
As president, Biden is primed to understand the significance of looking at America's history head-on. In 2013, in a notable exchange with the late Sen. John McCain about the Senate Intelligence Committee report, Biden praised Germany's public accounting of its crimes during the Holocaust and noted that the U.S. demanded accountability from other states around the world. "I think the only way you exorcise the demons is you acknowledge - you acknowledge, exactly what happened straightforwardly," Biden said.
The demons are still there. They live in the minds of those who were tortured, they walk the halls of government buildings, they practice and teach law, they carry on their lives as if torture were just another bad day at the office. But there remains simply no legal justification for maintaining the fiction that disclosing the full details of the torture program would harm national security. The danger in not doing so is far greater.
Andrea J. Prasow is deputy Washington director at Human Rights Watch. Follow her on Twitter @andreaprasow.