Why the Administration Won’t Prosecute CIA Officers

December 15, 2014 Updated: December 15, 2014

The summary of the Senate report on the CIA released last week renewed scrutiny of whether the agency’s enhanced interrogation methods, which many describe as tantamount to torture, were legal.

The Obama administration ended enhanced interrogation techniques in 2009, and promised to shield CIA officials involved in those practices from prosecution. Democrats in the Senate Intelligence Committee wrote a report detailing what they called abusive and ineffective practices. Republicans are writing their own, different report.

“It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department,” Attorney General Eric Holder said in a statement at the time.

Unauthorized Techniques

The Justice Department led by prosecutor John Durham conducted an investigation of CIA agents and contractors who used unauthorized interrogation techniques in 2009, but closed the case in 2012 without any charges.

The CIA directors who oversaw the agency when the techniques were in use say that the agency had the approval of the Department of Justice.

Sense of Ethics

“Three out of the last four attorney generals have defined [water boarding] as not being torture, so let’s get the legal definition off the table,” ex-CIA director Michael Hayden told ABC. “Now we’re talking about a broader national sense of ethics.”

Durham specifically investigated potential crimes in the deaths of two detainees, including one who was shackled to a cold concrete wall in a secret CIA prison, while in custody in Iraq and Afghanistan. In closing the investigation, the department said it had “reviewed a tremendous volume of information” about detainees alleged to have been in U.S. custody but did not find enough evidence to convict anyone.

Foreign Courts

The investigation looked into cases of unauthorized practices, but some argue that the scope needs to broaden to authorized practices that overlap with torture, and have raised the prospects of foreign courts stepping in.

Maria McFarland of Human Rights Watch cautioned that other countries may seek to punish those involved in the post 9/11 programs. “What happened under the convention against torture is that if the U.S. doesn’t take on its responsibility to prosecute, other countries can assert universal jurisdiction and say, well, we have an obligation to charge these people and investigate,” said McFarland.

McFarland said that the International Criminal Court has some jurisdiction in the countries where prisoners were interrogated and that the officials involved in the program should now be concerned about going overseas.

The Department of Justice said in 2009 it would take measures to protect officials involved in the program from foreign or international tribunals.

McFarland also said that senior officials shopped for a “strained legal justification” of certain techniques.

Public Opinion

The Pew Research Center conducted after the release of the Senate report found that 51 percent of Americans approve of the CIA’s interrogation methods, whereas 29 percent oppose it, and that 56 percent believe those methods prevented terrorist attacks.

Among Americans who said they followed the news of the Senate report very closely, the margin of support of higher; 56 percent said the interrogation methods were justified, and 34 percent unjustified.

Those polled believed by a small margin, 43 to 42 percent, that releasing the Senate report, which many say contains sensitive information that would endanger Americans abroad, was the wrong decision. At least one expert disagrees with that interpretation. Anthony Lemieux, a researcher at Georgia State University who has studied the social psychology of terrorism, said that he’s not worried the report will inflame terrorism abroad.

“Those who would commit terrorism are already committed to terrorism,” he said. “These are things that have already known and suspected in varying degrees.”

The Associated Press contributed to this report.