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Civil Liberties Advocates Calls for Senate Intelligence Investigation to be Public

As I reported yesterday, the Senate Select Committee on Intelligence is planning to launch a thorough review of the CIA’s interrogation techniques used in the “war on terror” during the Bush administration. The inquiry, which has not yet been formally announced because its scope and procedures are still being developed, will be the first major review of the CIA’s interrogation tactics and treatment of detainees since the terrorist attacks of Sept. 11, 2001.

Civil liberties advocates have been trying to get much of this information for years and are pleased that the intelligence committee is planning to investigate. But they are also concerned that the final report of the committee might not be made public, which in their view would defeat an important part of its purpose. Their fears are founded.

When the Senate Armed Services Committee released a summary of its report on the development of the military’s interrogation techniques in December, which concluded that waterboarding and other abuses were authorized by top defense officials including Defense Secretary Donald Rumsfeld, it was unable to publish the committee’s complete findings because the final report was deemed classified.

Congressional sources said the intelligence committee is unlikely to conduct any open hearings on the CIA’s practices. But it remains unclear whether the complete findings and final report of the committee will be made public.

“This could become an extraordinarily important investigation because, up to this point, the CIA has faced very little scrutiny for its role in torture,” said Caroline Fredrickson, Director of the ACLU’s Washington office, in a statement released this morning. But she emphasized that “for the investigation’s effectiveness to reach its full potential, the proceedings need to be open to the public. Transparency is necessary for our nation to pull itself out of the darkness in which these failed policies were created.”

The Senate intelligence committee is likely to be under extraordinary pressure not to make the CIA’s tactics public. Public revelations, supported by testimony and documentation, that top CIA officials authorized and encouraged the torture and abuse of detainees and maintained “black sites” to evade the law could lead to growing pressure to prosecute Bush officials. Although the Senate Intelligence Committee is reportedly not investigating for the purpose of future criminal prosecutions, if their detailed findings become public, it could be increasingly difficult to avoid them. Nevertheless, TWI’s Spencer Ackerman passes along this statement from CIA spokesman Mark Mansfield pledging the agency’s cooperation with an inquiry:

As [CIA Director Leaon] Panetta said on Wednesday in his meeting with reporters, “as far as Congress reviewing these issues and trying to gain lessons learned, we’ll obviously cooperate.”

As I’ve explained before in writing about Sen.Patrick Leahy’s proposed ‘”truth commission,” the United States is obligated under the United Nations Convention Against Torture to refer instances of torture for criminal prosecution.

Unlike John Yoo’s notoriously narrow definition, Article 1.1 of the Convention defines torture as:

Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

If an intelligence committee investigation were to reveal evidence of torture, and if the United States declined to prosecute, another country could still potentially prosecute those responsible under the theory of universal jurisdiction, which is specifically provided for in the torture convention.

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