Investigating Crimes of Torture: Expecting and Demanding Accountability

By: Houston Criminal Attorney John Floyd and paralegal Billy Sinclair


U.S. Attorney General Eric Holder recently selected a Connecticut federal prosecutor named John H. Durham to investigate whether the CIA’s destruction of the videotapes of harsh interrogation techniques inflicted upon terror suspects between 2002 and 2003 merit a full blown investigation of the agency employees (or independent contractors hired by the agency) who conducted those interrogations and those government officials who approved them.


Political conservatives–instigated by wing-nut pundits like Glenn Beck and Rush Limbaugh—have blasted Holder’s decision as being a terrible blow to the intelligence agency’s morale. They charge that the rank-and-file spy hawks will now be inhibited from protecting the country’s national security interests because of fear they will violate some law while “doing their duty” that might land them in the slammer.


The decision to investigate the CIA—regardless of whether it was those who ordered the torture interrogations, those who carried them out (regardless of whether the interrogators were career agency employees or independent contractors working as hired guns), or those who orchestrated the political cover up the massive torture conspiracy—should not depend upon “agency morale.” The so-called “morale issue” is a red-herring. The nation should not be concerned about the “morale” of a rogue agency that lacks the moral capability or legal duty to obey clearly established federal laws, international laws, and Geneva Conventions.


Former Vice-President Dick Cheney joined the political fray more recently by saying the selection of a special prosecutor was a political outrage. As one media pundit pointed out, the vice president himself has never held the Constitution in high esteem or exhibited very much respect for the rule of law. We agree. Shortly after 9/11, Cheney told then NBC’s Meet the Press host Tim Russert that those in power would have to visit the “dark side” to win President Bush’s declared “war on terror.” The former vice-president has since been a staunch defender of “harsh interrogation techniques” (water boarding, sleep deprivation, use of guns and drills to threaten blindfolded prisoners, attack dogs, beatings, and a host of other physical abuses) that he refuses to characterize as “torture.”

At the peak of its morale the CIA has had its share of failure at protecting the national security interests of this nation: it erroneously led freedom fighters in Hungary in the 1950s to believe America would protect them from Russian invasion; it promised protection it knew it could not deliver to the Bay of Pigs mercenaries; it assassinated world leaders it could not buy or corrupt, including at least seven botched attempts to kill Fidel Castro even after it enlisted the help of the Mafia to try to get the job done; and despite having a road map of clues and warnings that even Ray Charles could have followed, it failed to protect the nation from the 9/11 attacks themselves.


So the very constitutional sanctity of the “rule of law” is far more important than “CIA morale.” And that’s the bottom line. The fact that the Bush administration’s defined “harsh interrogation techniques” involved “torture” can no longer be disputed. Torture of terror suspects—some guilty, some innocent—occurred, and approval for these immoral and illegal acts reached the highest levels within the Bush administration. There clearly exists “enough evidence” in the public record for special prosecutor Durham to determine the need for a thorough investigation into all of those responsible for the Bush administration’s torture policies, regardless of whether that investigation leads directly into the White House or not.


Former President Richard Nixon’s “Watergate” criminal conspiracy pales in comparison to the constitutional abuses and statutory violations that occurred during the Bush administration’s “war on terror.” This nation cannot stand on the world stage and lecture to the rest of the world about their “human rights abuses” and “covert torture policies” when it has systematically engaged in the same practices under the political guise of fighting the “war on terror.”


While President Barak Obama has publicly stated he does not personally favor an investigation into possible CIA’s misdeeds associated with the “war on terror,” he appointed Eric Holder to be the nation’s chief prosecutor and the person responsible for making decisions about who did and who did not violate the law. The Attorney General is vested with a constitutional obligation to protect the “rule of law” which supersedes any political duty owed to the president’s political agenda. President Obama understands the Attorney General’s obligation and surely that’s why he chose Eric Holder for this most important role in his administration. Former Attorney General John Mitchell ended up a convicted felon because he lost sight of his constitutional responsibilities, feeling more compelled to serve the corrupt political interests of President Nixon rather adhere to the rule of law. There has been ample evidence presented in the public record that former Attorneys General John Ashcroft and Alberto Gonzales were aware of the CIA-inflicted “torture” and misled Congress about it. We do not believe Attorney General Holder will follow the irresponsible lead set by these former Attorneys Generals.


That we have so many people in this country, including the former Vice President, defend the use of “torture” and scoff at the “rule of law” is troubling. We see wing-nuts carrying assault rifles to presidential rallies and the practice being defended by “political conservatives.” What would these same Glenn Beck inspired “defenders of the Constitution” have said had members of the Black Panther Party or protectors of the Nation of Islam showed up at President Bush rallies carrying AK47s?


The vast majority of people in this country pilloried and demanded swift punishment for former Atlanta Falcons quarterback Michael Vick after it was revealed in 2007 that he tortured and killed fighting dogs, mostly pit bulls. Phrases like “indescribable cruelty” and “atrocious brutality” were commonly used to demean Vick’s treatment of animals. Yet many of these same people—some of whom call themselves “animal rights activists”—are not outraged that the CIA kidnapped suspected terrorists off the streets in foreign countries, carted them off the “secret prisons” where they were systematically tortured, and caused dozens of them to simply “disappear” from the face of the earth. In fact, some of the very same people who cheered when Michael Vick was carted off a federal prison now support Dick Cheney’s assessment that it’s a political outrage to even “investigate” claims that the CIA tortured of human beings—many of whom have since been declared innocent of any terrorism conduct and ordered released from military custody.


America is a severely divided nation at this critical moment in its history: political right against left, race against race, minority against minority, and rich against poor. The diverse “melting pot” that once inspired this nation to rise above its shortcomings and failures now threatens to tear its soul apart with racial animosities spurred on by partisan politics. The very salvation of this nation has always been, in the final analysis, its respect for the rule of law. It was the rule of law that ultimately triumphed over the horrors of slavery, the murderous lynch-mob era of racial segregation, CIA crimes that reached international proportions, governmental abuses led by former FBI Director J. Edgar Hoover through covert surveillance of its own citizens (including Martin Luther King and the Kennedy family), and crimes of torture by hundreds of police departments across the nation throughout the years (most recently in Chicago).


The rule of law will surely see us safely through any full-blown investigation into CIA torture and other possible criminal conduct, even if it means “gumshoe” employees, as well as high level White House appointees, being handcuffed and carted off to federal prisons just like Michael Vick. Violations of the law and human decency have never, and will never, serve the national security interests of this nation. (If you can’t torture dogs in this country, you surely cannot torture human beings). The only thing that protects this nation—or any nation for that matter—from anarchy or civil war is the rule of law protecting individual rights from governmental lawlessness. Every country in this world currently enduring civil war and violent insurgencies are in those positions because the rule of law collapsed while their governments pursued either fanatical religious ideologies or political corruption.


In the end, we ask only that any investigation into CIA torture practices be fair, thorough, and professional—and that the chips of responsibility and accountability be allowed to fall where they may, even if they land at the doorsteps of former Attorneys General, White House aides, and the former Vice President himself. In a democracy, knowledge is power. The American people deserve full knowledge about the actions of its public servants in government to fairly and intelligently exercise that power.


By: Houston Criminal Attorney John Floyd and paralegal Billy Sinclair