Federal prosecutor John Durham is leading an investigation into whether any operatives or contractors for the Central Intelligence Agency (CIA) accused of using torture on terror suspects in secret detention centers around the world should face criminal charges. If found guilty, CIA operatives and their civilian counterparts could not only feel the full weight of the US justice system, but be tried under international law as well.
"The use of torture is forbidden under US domestic law," Anthony Dworkin, a senior policy fellow at the European Council for Foreign Relations working on human rights, international justice and international humanitarian law, told Deutsche Welle.
In addition, the Torture Act criminalizes any act of torture carried out by a US citizen overseas. During armed conflict, the use of torture as well as cruel and inhuman treatment are violations of the law of armed conflict; in such cases they can be prosecuted in the United States under the War Crimes Act.
"Torture in armed conflict is a violation of the Geneva Conventions and torture committed as part of a widespread or systematic campaign might be a crime against humanity," Dworkin said. "In these cases, it could be prosecuted before an international court or tribunal if it has the jurisdiction."
Following instructions to torture
With such legal implications looming, CIA operatives are encouraged to buy insurance to cover possible legal bills. The policies cost about $300 (220 euros) a year for $1 million in coverage.
The US Justice Department is leading the investigation
However, a report published by the Associated Press (AP) last month and reproduced by a number of newspapers in the United States said that the CIA itself is currently paying the legal fees of two former contractors accused of waterboarding terror suspects while on the CIA's payroll. They were operating in so-called black sites, a network of secret internment facilities the CIA operated around the world. The US government has since shut down all such sites.
Jim Mitchell and Bruce Jessen, the psychologists who are widely regarded as the creators of the CIA's modern interrogation program which came into force after the attacks of Sept. 11, 2001, are among a number of CIA officers and contractors being investigated by Justice Department prosecutor Durham.
Exposed by anonymous former US intelligence officials, Mitchell and Jessen have become the first publicly acknowledged individuals to be linked to the CIA's secret prisons network and the torture which was carried out in them.
As public citizens, the two psychologists - contracted to the CIA via their firm Mitchell, Jessen & Associates - are not afforded the classified status of CIA operatives nor are they eligible for their legal insurance. As such, when initial reports on secret prisons, extraordinary rendition and torture began to surface, Mitchell and Jensen found themselves subject to intense scrutiny. This scrutiny has since put them in the sights of Federal Prosecutor Durham.
"The actions of a civilian contractor acting on behalf of the state would likely be treated as being capable of breaching the state's international obligation not to engage in torture," Silvia Borelli, an expert on public law and international relations at University College London, told Deutsche Welle. "This is certainly the case where, in committing the ill-treatment in question, the contractor was acting on the specific instructions or under the directions or control of the state or state officials."
Contractors strike deal for CIA-funded legal aid
Mitchell and Jessen are accused of waterboarding Zubaydah
According to the AP report, with this eventuality in mind, the two psychologists struck a deal for future legal assistance with the CIA before agreeing to the interrogation contract and allegedly taking part personally in the simulated drowning of al-Qaida facilitator Abu Zubaydah and the USS Cole bombing mastermind Abd al Nashiri in a secret prison in Thailand.
As the CIA was reportedly eager to have the contractors on board to take on the task of implementing the interrogation techniques they had developed, the agency agreed to cover at least $5 million in legal fees for them in case their involvement in the operations were revealed and problems occurred in the future.
The AP report claims the anonymous intelligence sources confirmed that this "indemnity promise" had been included in the contract between the CIA and Mitchell, Jessen & Associates and that any legal fees would be paid directly from CIA accounts.
"The agreement with the contractors and the possible payment of legal fees do not in themselves implicate the CIA in torture," Dworkin said. "What counts is the decision of the CIA to recruit these consultants and ask them to devise an interrogation program, and then to support the implementation of this program."
Read more about the CIA use of torture contractors
Former military trainers turn their hand to torture
Techniques designed for army training were used in prisons
Before 2001, Mitchell, Jessen & Associates had trained military officials to resist interrogations at the US Army's SERE - Survival, Evasion, Resistance, Escape - schools at Fort Bragg, North Carolina, and Fort Rucker in Alabama.
According to the AP report, Mitchell and Jessen were not actively involved in any of the torture training at SERE and only got hands-on in 2002 when they were flown to Thailand to oversee Zubaydah's interrogation and to exact stronger-than-usual pressure on the al-Qaida suspect.
Evidence provided by the anonymous intelligence sources and corroborated by previously released records show that Mitchell and Jessen waterboarded Zubaydah 83 times and al Nashiri twice.
Subsequent video footage of the Thailand sessions is alleged to have caused the psychologists concern for their personal safety. They urged the CIA on numerous occasions to erase the tapes until they were finally destroyed in November 2005. An investigation by Durham into the destruction of the tapes closed in November of this year with no charges filed.
According to the released documents and source testimony, Mitchell, Jessen & Associates personnel were present at the interrogation of confessed Sept. 11 mastermind Khalid Sheikh Mohammed in Poland in 2003. But it is unclear from the evidence whether the two psychologists were those in attendance.
An unnamed interrogator took the lead in the questioning with the Mitchell, Jessen & Associates personnel in support. Mohammed was waterboarded 183 times, according to the evidence provided to AP.
Prosecutors face difficulties in bringing cases to trial
The CIA claimed excessive torture was necessary at times
Should Mitchell and Jesson face trial, CIA operatives involved in torture will be hoping that one of the Justice Department's caveats - not to 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" - will minimize the chances of them being prosecuted for doing what senior officials asked them or authorized them to do.
"The key thing about Durham's review is that it was mandated only to examine whether agents went beyond the guidelines for interrogation that they were given," Dworkin said. "There is little doubt that prosecutions of CIA operatives would be deeply unpopular within the Agency and reinforce the sense that they are being punished for actions they were encouraged to take by political leaders."
Former US president George W. Bush described in his memoirs "Decision Points" how he personally ordered Mohammed's waterboarding - and defended his decision. The simulated drowning technique was banned by Bush's successor, President Barack Obama, shortly after he took office in 2009.
Author: Nick Amies
Editors: Rob Mudge, Sabina Casagrande