When Attorney General Eric Holder announced yesterday that the Department of Justice would not prosecute CIA personnel involved in the torture of detainees held by the United States, it should have come as no surprise. Sure, lots of people concerned about the torture and abuse of scores of men detained after the September 11 attacks were disappointed. And Eric Holder likely chose to announce his controversial decision in the middle of the Republican National Convention and the day before the start of the Labor Day holiday to prevent too loud of an uproar. But it's almost impossible to imagine that the U.S. government would have gone ahead with these prosecutions, given its insistence on shrouding the entire U.S. torture program in a thick veil of secrecy, even long after it officially ended.
Consider that just last week, government lawyers were prepared to argue in the military commission prosecution of the five alleged 9/11 plotters that all of their statements about their own abuse in U.S. custody was secret. (The scheduled hearing was cancelled due to Hurricane Isaac.) In documents filed with the military commission, prosecutors insisted that all statements about the detainees' treatment in U.S. custody, particularly in secret CIA prisons, were classified, because the men have "had access to classified intelligence sources and methods" that must be protected from disclosure.
In his statement yesterday, Holder said he'd declined to prosecute anyone in the CIA "because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt." He didn't explain what kind of evidence he'd judged not "admissible." But certainly all CIA agents who'd participated in or witnessed the abuse of the two detainees whose deaths were being investigated would have similarly "had access to classified intelligence sources and methods" that the government doesn't want revealed.
In the 9/11 case, the government insists it's not classifying the detainees' statements to cover up government misconduct, but to protect national security. But Holder's decision yesterday casts even more doubt on that question.
It's not clear what national security interest is served at this point by continuing to hide what U.S. officials did to people detained after the September 11 attacks, other than to avoid U.S. embarrassment. But given how much information has already leaked out about how the United States used so-called "enhanced interrogation techniques" to break down and in some cases torture prisoners, it's too late for that.
In a 2006 report, Human Rights First documented that up to 12 men had been tortured to death in U.S. custody since 2002. Reviewing documents we've received more recently through a Freedom of Information Act request to the government, it now appears that up to 19 of 247 deaths involved torture. In only six of those cases was anyone held criminally liable. According to military documents, many more detainees -- we've counted 72 so far -- are believed to have been murdered. While in some cases charges were brought, in many they were dropped or the perpetrators received only administrative sanctions.
Yesterday, CIA Director David Petraeus sent a statement to CIA employees assuring them that the matter has been put to rest. "As intelligence officers, our inclination, of course, is to look ahead to the challenges of the future rather than backwards at those of the past."
That may be the CIA's inclination, but the agency is still obligated to investigate when its agents break the law. And surely the Justice Department has no excuse. Its role is always to investigate what happened in the past and to hold those responsible for crimes accountable.
When it comes to the treatment of detainees in U.S. custody, many of whom were clearly tortured to death, all relevant branches of the U.S. government have fallen down on the job.