More and More Questions

I was in Geneva when word leaked out that George Bush's memoir contained a passage in which he said, "Damn right!" he'd approved the torture of Khalid Sheikh Mohammed — who, as we know, was waterboarded 183 times at the CIA's secret prison in Poland in the spring of 2003. I was there, like a delegation from the ACLU and representatives from scores of other U.S. and international NGOs, to watch the world question the United States about its human rights record as part of the United Nations' Universal Periodic Review process, where the U.S. delegation faced many questions like this one, from Russia:

What administrative and legislative steps are taken by the United States to hold accountable persons (including medical personnel) who had tortured detainees in US secret prisons as well as detention centers in Bagram (Afghanistan) and Guantanamo Bay? What is being done to provide effective remedies to civilian victims of the "war on terror," including the detainees of the secret prisons and centers in Guantanamo and Bagram?

During the three-hour UPR session, State Department legal advisor Harold Koh assured the assembled nations that the United States was committed to abiding by the ban on torture and inhumane treatment — which explicitly requires nations to carry out criminal investigations of torture allegations, prosecute perpetrators, and make reparations to victims — and stated flatly, "Nothwitstanding recent public allegations, to our knowledge, all credible allegations of detainee abuse by United States forces have been thoroughly investigated and appropriate corrective action has been taken."

At a "Town Hall" meeting with NGOs later in the day, Koh elaborated, explaining that he was speaking specifically about abuse allegations involving detainees in the custody of the U.S. military; meanwhile, he said, the Justice Department had appointed Special Prosecutor John Durham to conduct an investigation of allegations involving civilians and civilian agencies, and that Durham's investigation was ongoing.

Dozens of simple, direct questions leapt to mind, of course, about both the military and civilian investigations. At a press conference that afternoon, with Bush's admission hanging in the air, reporters from around the world raised the most obvious: Does that mean the United States is still considering legal investigations and federal prosecutions of those who gave the green light for the torture of "high value detainees" in secret CIA prisons?

Moments before, Koh had told the international press corps, "the Obama administration defines waterboarding as torture as a matter of law under the Convention Against Torture; it's part of our legal obligation." Assistant Secretary of State Esther Brimmer, who led the U.S. delegation to Geneva, followed by declaring emphatically, "The prohibition against torture and cruel treatment applies to every U.S. official, every agency, everywhere in the world. There is an absolute prohibition as a matter of law and policy."

So would the U.S. consider prosecuting those who ordered and approved waterboarding? Again Koh pointed to Durham's investigation, saying specifically "the Attorney General has referred this very issue" to the Special Prosecutor. "Those investigations are ongoing. The question is not whether they would consider it; those discussions are going on right now."

As we saw in Chapter 3, Durham was originally appointed by then-Attorney General Michael Mukasey in January 2008 to investigate the CIA's destruction of the Abu Zubaydah and al-Nashiri interrogation tapes. Incoming Attorney General Eric Holder made no move to expand the scope of Durham's investigation until August 24, 2009, the same day the May 2004 report of the CIA's Inspector General was released. At that time, Holder announced he had asked Durham to open "a preliminary review into whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations."

While the scope of this investigation has not been publicly defined, press reports have consistently suggested that it is focused on the death of a detainee at the CIA's "Salt Pit" facility in Afghanistan, the "gun and drill incident" involving al-Nashiri in Poland, and a handful of other incidents in which CIA agents and contractors had used techniques other than those approved in the torture memos. "I have made clear...that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of Legal Counsel regarding the interrogation of detainees," Holder has insisted.

Now, in Geneva, Koh was offering the international media the scintillating suggestion that Durham was authorized to look beyond the so-called "improvised techniques" to the use of the enhanced interrogation techniques themselves, waterboarding in particular, which the Obama administration acknowledges is torture.

That was on Friday, November 5, in Geneva. The following Monday, NBCran Matt Lauer's interview with George Bush, where the former president insisted that waterboarding was legal "because the lawyer said it was legal." I was in London then, on my way back to New York. Bush's claims continued to ricochet around the world: Tuesday morning, the British newspapers were dominated by headlines declaring that U.K. government and intelligence officials disputed Bush's claim, made in his memoir, that waterboading KSM had foiled a plot to bomb Heathrow airport — a plot, indeed, that British intelligence uncovered a month before KSM's arrest.

I read several versions of that story on my flight from Heathrow to Newark. Then, when I landed, I read another batch of articles, these just appearing on major media sites, that Justice Department spokesperson Matthew Miller had announced that after an "exhaustive investigation," "Mr. Durham has concluded that he will not pursue criminal charges for the destruction of the interrogation videotapes." The announcement came on the last possible day under the five-year statute of limitations to file charges for the tapes' destruction, and cast a long shadow over Harold Koh's repeated references just four days before to the status and scope of Durham's investigations.

As I said, Koh's assertions before the U.N. Human Rights Council and before the international media that all incidents of torture and cruel, inhuman, and degrading treatment by the military have been investigated and addressed, and that investigations continue into the torture of detainees in CIA custody, raised dozens of simple, direct questions. For the next two weeks, starting on Monday, we'll ask 10 of those questions here in the Torture Report diary.