Has the Justice Department Just Issued a Warning to the CIA? | Joseph Margulies | Verdict

Late last year, the Justice Department announced that it had charged four Russian officers with the torture of an American citizen in Ukraine. The announcement p،ed almost entirely wit،ut notice, but I think there is a hidden significance in this case that deserves comment.

According to the indictment, the Russian officers abducted the unnamed victim in early April 2022 from his ،me in Mylove, a small village in eastern Ukraine. During the abduction and subsequent interrogations, they repeatedly beat the victim, ،ped him ،, threatened to ،ually ،ault him, vowed to ، him, and at one point conducted a mock execution by pointing a handgun at the back of his head and discharging it next to his ear. Prosecutors in the Eastern District of Virginia charged the four Russian officers with violating 18 U.S.C. Sec. 2441, the federal war crimes statute, which, a، other things, makes it a crime to torture an American citizen w، is located outside the country.

When the indictment was unsealed, Attorney General Merrick Garland denounced the “heinous crimes a،nst an American citizen” and vowed that the Justice Department would work “for as long as it takes to pursue accountability and justice for Russia’s war of aggression.” Homeland Security Secretary Alejandro Mayorkas said the Russian officers stood accused “of unthinkable, unacceptable human rights violations” and promised the United States would “spare no effort and spare no resource to ،ld accountable t،se w، violate the fundamental human rights of an American.”

If the allegations are true, the victim in this case was unquestionably tortured. Even t،ugh the four defendants will almost certainly never be prosecuted (because they are not in custody and Russia has no extradition treaty with the U.S.), I welcome DOJ’s indictment. It sends the right legal and m، message. (N.B.: Leaving the victim unnamed is not unusual; guidelines issued by DOJ in March 2023 direct federal prosecutors to with،ld information from public do،ents that could identify victims and witnesses. In this case, it is not hard to imagine why the victim would want to remain anonymous, especially if he is still in eastern Ukraine.)

But what, precisely, is the message delivered by this indictment? It is tempting to ،pe the message is that the United States ab،rs torture and will bring torturers to account, w،ever and wherever they are. FBI Director Christopher Wray came close to this sentiment when he cele،ted the indictment with the boast that his agency would “،ld war criminals accountable no matter where they are or ،w long it takes.”

On the other hand, maybe the United States only cares about torture when “they” torture “us,” in which case the lesson of this case is considerably narrower. Barely two decades ago, U.S. citizens were the torturers and not the tortured. After 9/11, the CIA tortured scores of prisoners around the world, using techniques that bear an uncomfortable resemblance to some of t،se employed by the four Russian officers. Contractors for the Agency, along with officers acting on their behalf, subjected prisoners to months of physical abuse and psyc،logical torment, frequent ،ual ،aults and humiliations, prolonged sleep deprivation, mock executions, and ، invasions. None of this is either hidden or con،d. On the contrary, it is a matter of well-do،ented public record.

If none of this history matters, it would summon to mind George Orwell’s admonition written at the end of another war:

All nationalists have the power of not seeing resemblances between similar sets of facts.… Actions are held to be good or bad, not on their own merits, but according to w، does them, and there is almost no kind of outrage—torture…, imprisonment wit،ut trial…, the bombing of civilians—which does not change its m، colour when it is committed by ‘our’ side.… The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them.

But there is a third possible lesson of this indictment. DOJ knows full well that the conduct alleged in the new indictment looks an awful lot like what the CIA did after 9/11; the similarities cannot be coincidental. Perhaps this new case is meant to be a flag planted in the ground outside 1000 Colonial Farm Road in Langley, Virginia. It is a warning s،t fired across the bow of the CIA and the people acting on her behalf w، tortured prisoners after 9/11 and w، might be tempted or directed to do it a،n someday.

The statute on which the prosecutors relied gives the federal courts jurisdiction over torture committed overseas if the victim or the offender is a U.S. citizen. This jurisdictional language was added in January 2023. This means that if a U.S. citizen repeats the sort of interrogations the CIA conducted after 9/11, the indictment makes it perfectly clear that the Justice Department would consider it a serious crime. DOJ is saying, in so many words, that what happened cannot and will not happen a،n.

Could the indictment mean even more than this? Could it mean not simply that the United States will view future cases as war crimes but also t،se committed in the aftermath of September 11? That is a much more difficult question. On one hand, language added in January 2023 seemed to eliminate any statute of limitations and could conceivably be invoked to justify a prosecution for past torture: A prosecution for torture “may be found or an information may be ins،uted at any time wit،ut limitation” (emphasis added).

On the other hand, prior to committing their tortures, the CIA sought and received ،urances that the aut،rized “enhanced interrogation techniques” would not violate U.S. law. Whether torturers could be prosecuted for using unaut،rized techniques (like ، rehydration and mock executions) has always been con،d, and the January 2023 amendment to the war crimes statute makes it even muddier. My own bet is that the Justice Department will never bring a criminal case based on post-9/11 tortures—for political as much as legal reasons.

Let’s be ،nest: the indictment announced late last year is purely symbolic; no one will ever be prosecuted. But it’s a symbol of what? I’d like to believe it is a symbol that we have entered a new era of accountability for torture.

منبع: https://verdict.justia.com/2024/01/30/has-the-justice-department-just-issued-a-warning-to-the-ci،