Why Doesn't CIA Director Leon Panetta Want Torture Investigations?

By John Sifton, The Daily Beast. Posted April 13, 2009.

On Monday night the confidential report of the International Committee of the Red Cross on the CIA’s secret detention and interrogation program was published on the website of the New York Review of Books. The report confirms previous allegations about CIA abuses against detainees. Unlike earlier reporting, however, the document is based on irrefutable first hand information: interviews with detainees and U.S. officials. The document describes in stark detail the CIA’s use of forced standing, sleep deprivation, prolonged isolation, assaults, and waterboarding. It also discloses the participation of CIA medical personnel in torture.

Some revelations in the ICRC report have already become known through the reporting of journalists Mark Danner and Jane Mayer. As a result, press accounts have focused on the fresh news of medical personnel supervising and overseeing abuse. But other important facts about the report have been overlooked that make the question of torture not simply a matter of the past.

Since the basic facts about their involvement in the CIA interrogation program are now known, Panetta’s actions are increasingly looking like a cover-up.

The New York Times reported that Leon Panetta, the current CIA director, has taken the position that “no one who took actions based on legal guidance from the Department of Justice at the time should be investigated, let alone punished.” Yet a number of CIA officials implicated in the torture program not only remain at the highest levels of the agency, but are also advising Panetta. Panetta’s attempt to suppress the issue is making Bush’s policy into the Obama administration’s dirty laundry.

Take Stephen Kappes. At the time of the worst torture sessions outlined in the ICRC report, Kappes served as a senior official in the Directorate of Operations -- the operational part of the CIA that oversees paramilitary operations as well as the high-value detention program. (The directorate of operations is now known as the National Clandestine Service.) Panetta has kept Kappes as deputy director of the CIA -- the number two official in the agency. One of Kappes’ deputies from 2002-2004, Michael Sulick, is now director of the National Clandestine Service -- the de facto number three in the agency. Panetta’s refusal to investigate may be intended to protect his deputies. Since the basic facts about their involvement in the CIA interrogation program are now known, Panetta’s actions are increasingly looking like a cover-up.

Another overlooked fact is this: the ICRC report is an important legal document that contains well-sustained allegations of criminal conduct with legal significance. Unlike earlier claims in books, magazines, and newspapers, the ICRC’s allegations are official notices from a legally recognized entity. The ICRC, after all, is not Human Rights Watch, the Washington Post, or The New Yorker, all of which have reported on the CIA’s secret prison program. The ICRC is an official entity recognized under the Geneva Conventions and various other earlier international treaties relating to armed conflict and prisoners of war. The ICRC is specifically tasked under the Geneva Conventions to visit prisoners and communicate with detaining powers to uphold the conventions’ spirit and purpose. Its interpretations and statements on matters of international law are held as legally authoritative. As such, the ICRC’s allegations have legal significance beyond previous disclosures. In effect, the document itself is evidence in a criminal case.

Note in particular the report’s date, February 14, 2007 -- Valentine’s Day. On that date, the U.S. government was put on notice about the allegations of CIA torture. (The ICRC also wrote to the U.S. governments about the issue of disappearances at several points in 2003-2006.)

Under international law -- the Geneva Conventions, the Convention against Torture, and basic precepts of customary international law -- the United States has a positive obligation to investigate and prosecute persons alleged to have committed torture and other violations of the laws of war. As of Valentine’s Day 2007, and possibly earlier, the U.S. government was obligated to investigate and prosecute the abuses detailed in the report. The United States’ failure to do so is a recurring breach of international law. If the Spanish case against six high-level Bush administration officials accused of authorizing torture proceeds, the Red Cross report -- among other documents -- may be entered as evidence. Further international prosecutions that the U.S. is obligated to respect may go down the chain of command to Panetta’s deputies.

See more stories tagged with: cia, torture, geneva conventions, george tenet, michael hayden, jane mayer, leon panetta, stephen kappes, office of legal counsel, torture memos, mark danner, icrc report, olc memos, porter goss, michael sulick

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