Has the Justice Department Just Issued a Warning to the CIA?

Late final yr, the Justice Division introduced that it had charged 4 Russian officers with the torture of an American citizen in Ukraine. The announcement handed virtually fully with out discover, however I believe there’s a hidden significance on this case that deserves remark.

In keeping with the indictment, the Russian officers kidnapped the unnamed sufferer in early April 2022 from his house in Mylove, a small village in jap Ukraine. In the course of the abduction and subsequent interrogations, they repeatedly beat the sufferer, stripped him bare, threatened to sexually assault him, vowed to kill him, and at one level carried out a mock execution by pointing a handgun in the back of his head and discharging it subsequent to his ear. Prosecutors within the Jap District of Virginia charged the 4 Russian officers with violating 18 U.S.C. Sec. 2441, the federal struggle crimes statute, which, amongst different issues, makes it a criminal offense to torture an American citizen who’s positioned exterior the nation.

When the indictment was unsealed, Legal professional Normal Merrick Garland denounced the “heinous crimes in opposition to an American citizen” and vowed that the Justice Division would work “for so long as it takes to pursue accountability and justice for Russia’s struggle of aggression.” Homeland Safety Secretary Alejandro Mayorkas stated the Russian officers stood accused “of unthinkable, unacceptable human rights violations” and promised america would “spare no effort and spare no useful resource to carry accountable those that violate the basic human rights of an American.”

If the allegations are true, the sufferer on this case was unquestionably tortured. Although the 4 defendants will virtually actually by no means be prosecuted (as a result of they aren’t in custody and Russia has no extradition treaty with the U.S.), I welcome DOJ’s indictment. It sends the best authorized and ethical message. (N.B.: Leaving the sufferer unnamed shouldn’t be uncommon; pointers issued by DOJ in March 2023 direct federal prosecutors to withhold info from public paperwork that would determine victims and witnesses. On this case, it isn’t exhausting to think about why the sufferer would need to stay nameless, particularly if he’s nonetheless in jap Ukraine.)

However what, exactly, is the message delivered by this indictment? It’s tempting to hope the message is that america abhors torture and can convey torturers to account, whoever and wherever they’re. FBI Director Christopher Wray got here near this sentiment when he celebrated the indictment with the boast that his company would “maintain struggle criminals accountable irrespective of the place they’re or how lengthy it takes.”

However, possibly america solely cares about torture when “they” torture “us,” through which case the lesson of this case is significantly narrower. Barely 20 years in the past, U.S. residents had been the torturers and never the tortured. After 9/11, the CIA tortured scores of prisoners world wide, utilizing methods that bear an uncomfortable resemblance to a few of these employed by the 4 Russian officers. Contractors for the Company, together with officers appearing on their behalf, subjected prisoners to months of bodily abuse and psychological torment, frequent sexual assaults and humiliations, extended sleep deprivation, mock executions, and rectal invasions. None of that is both hidden or contested. Quite the opposite, it’s a matter of well-documented public document.

If none of this historical past issues, it could summon to thoughts George Orwell’s admonition written on the finish of one other struggle:

All nationalists have the ability of not seeing resemblances between related units of info.… Actions are held to be good or unhealthy, not on their very own deserves, however in accordance with who does them, and there’s virtually no sort of outrage—torture…, imprisonment with out trial…, the bombing of civilians—which doesn’t change its ethical color when it’s dedicated by ‘our’ aspect.… The nationalist not solely doesn’t disapprove of atrocities dedicated by his personal aspect, however he has a exceptional capability for not even listening to about them.

However there’s a third potential lesson of this indictment. DOJ is aware of full nicely that the conduct alleged within the new indictment seems an terrible lot like what the CIA did after 9/11; the similarities can’t be coincidental. Maybe this new case is supposed to be a flag planted within the floor exterior 1000 Colonial Farm Highway in Langley, Virginia. It’s a warning shot fired throughout the bow of the CIA and the folks appearing on her behalf who tortured prisoners after 9/11 and who could be tempted or directed to do it once more sometime.

The statute on which the prosecutors relied provides the federal courts jurisdiction over torture dedicated abroad if the sufferer or the offender is a U.S. citizen. This jurisdictional language was added in January 2023. Which means if a U.S. citizen repeats the type of interrogations the CIA carried out after 9/11, the indictment makes it completely clear that the Justice Division would contemplate it a severe crime. DOJ is saying, in so many phrases, that what occurred can’t and won’t occur once more.

May the indictment imply much more than this? May it imply not merely that america will view future circumstances as struggle crimes but in addition these dedicated within the aftermath of September 11? That could be a way more troublesome query. On one hand, language added in January 2023 appeared to remove any statute of limitations and will conceivably be invoked to justify a prosecution for previous torture: A prosecution for torture “could also be discovered or an info could also be instituted at any time with out limitation” (emphasis added).

However, previous to committing their tortures, the CIA sought and obtained assurances that the licensed “enhanced interrogation methods” wouldn’t violate U.S. legislation. Whether or not torturers might be prosecuted for utilizing unauthorized methods (like rectal rehydration and mock executions) has all the time been contested, and the January 2023 modification to the struggle crimes statute makes it even muddier. My very own wager is that the Justice Division won’t ever convey a prison case based mostly on post-9/11 tortures—for political as a lot as authorized causes.

Let’s be sincere: the indictment introduced late final yr is only symbolic; nobody will ever be prosecuted. However it’s a logo of what? I’d wish to consider it’s a image that we’ve entered a brand new period of accountability for torture.