Brazil publishes Truth Commission Report; U.S. Senate Intelligence Committee Report on Torture Released; U.S. officials debate whether torture “worked”

Developing — preliminary draft

See

(1) “Comissão Nacional da Verdade entrega a Dilma relatório final das investigawções; Presidente recebeu em audiência no Palácio do Planalto, às 9h, os seis integrantes da CNV,” O GLOBO, 10 dezembro 2014 8:28 ( ATUALIZADO 10/12/2014 10:03 h)i

(2) Comissão da Verdade, “Relatorio Final,” O Estado de Sao Paulo, 1d0 Dezembro 2014.

(3) (Brasilia / Sao Paulo)”CRIMES DA DITADURA: Comissão pede punição para 377 pelos crimes da ditadura; LISTA INCLUI PRESIDENTES; GRUPO DIZ QUE LEI DA ANISTIA NÃO SE APLICA; FORÇAS ARMADAS SILENCIAM SOBRE RELATÓRIO,” Folha de Sao Paulo, 10 Dezembro 2014.

(4) “The Senate Committee’s Report on the C.I.A.’s Use of Torture,” New York Times, DEC. 9, 2014.

It will take a few days to process all that is being said about the Senate Torture Report and its contents. The report was released on December 9, 2014.

Today, on December 10, 2014, Human Rights Day, the Brazilian Truth Commission released its report on the crimes committed under military rule from 1964 to 1985.

The two documents should perhaps be read together, so Americans can learn a thing or two from the Brazilian experience.

The U.S. Senate report is narrowly focused on acts of torture and other cruel and inhuman punishment committed by the CIA from September 11, 2001 through the end of the Bush presidency in January, 2009. Subjects excluded are acts of torture committed by the military, and procedures followed after January 2009, when Barack Obama became president.

The Brazilian report, while delayed for 30 years, is much more comprehensive. It is not heavily redacted like the Executive Summary of the U.S. Senate Report, is published in full and not just as an Executive Summary, and lists names, dates, victims, and the individuals responsible for the crimes that were committed.

One other difference stands out: Brazilian President Dilma Rousseff has not given free reign to those in the government to defend in public the commission of what constitute grave international crimes.

In the U.S., the former architects and implementers of torture have launched an all-out public relations campaign aimed at persuading the public that the actions they carried out were necessary, legal, morally justified, and produced critically important imformation that saved innocent lives.

On the legal issue, it is worth stressing that the crimes they committed were felonies under U.S. law as well as international crimes under the U.N. Torture Convention, other Human Rights conventions, and humanitarian law (the Law of War), including the 1949 Geneva Conventions and subsequent Protocols.

They argue that they were carrying out orders from top government officials, under legal guidance from the Department of Justice.

But they ignore the fact that “due obedience” to a superior order, or even under purported legal cover from the Department of Justice, is no defense to the charges of international crimes for which they may still one day have to answer.

The president does not have the authority to legally authorize the commission of torture or other international crimes.

No court can order torture, or approve of its use.

However loud their cries of self-justification may be today, they would be well advised to make their future travel plans abroad with meticulous care.

For while Barack Obama has refused to prosecute them, under the Convention Against Tortue other countries may some day bring them to justice.

There is a hidden benefit to the public relations campaign now underway by those who would defend and justify the use of torture. They are identifying themselves publicly as “friends of torture”.

A list should be made of those making these arguments, which could be helpful to future prosecutors looking for officials or former officials who may be suspected of committing torture, or who might serve as material witnesses in other cases.

The list should also be useful in identifying present or former government officials who are releasing, apparently without authorization, classified information which they seek to marshal in the defense of torture.

There is one further aspect which is worth reflecting on. While the “friends of torture” are arguing loudly and vociferously that torture was justified, and they were justified in adopting policies or committing acts of torture, they at the same time have argued that release of the Senate report would pose risks to Americans and American interests abroad.

But think about it for a minute. Won’t the declarations that torture was justified, and “produced results”, simply confirm the beliefs of jihaddists and others who they seek to recruit or win over, that the U.S. remains a country that believes in torture, and whatever Obama’s Executive Order may state, is a country that will resort to torture in the future whenever it believes that it will be effective in securing useful information?

In short, the “friends of torture” are undermining America’s statement of its commitment to the world that it will never commit torture again.

Of course, the real issues that should be considered are whether it is morally or legally permissible to commit felonies or international crimes against the physical integrity of another human being, however effective it might be in securing some immediate objective.

The argument is no different from an argument that it is morally permissible to kill another human being without a valid legal excuse, merely in order to achieve some important private or public goal. Certainly no civilized country could allow a private individual to commit such crimes, and even less so can we permit a government official, acting with the authority and power of the state, to take a human life or violate the physical integrity of another human being.

Finally, the “friends of torture” argue that torture works.

It may, in some cases, which did not prevent the Romans from banning the use of torture against Roman citizens, or Europe and America beginning in the 18th century from banning the tortue of any human being.

Our experience with Japan and Germany in World War II confirmed the absolute necessity of protecting human beings from torture by government officials, under any circumstances.

It is remarkable that during Workd War II the United States did not adopt a policy of using torture, despite the exigencies of those times. Indeed, until 2001 the U.S. upheld the prohibition of torture, while prosecuting those responsible for its commission.

Obama has violated and continues to violate the peremptory obligation under the Torture Convention to prosecute those who are suspected of planning or participating in acts of torture.

The United States must now move to follow the Brazilian example, or one like it, by publishing all of the facts on U.S. acts and policies of torture, with names and dates of perpetrators as well as victims, in unredacted form.

Those responsible for torture should then be prosecuted–there is no statute of limitations for international crimes–or required to go through a peace and reconciliation process in which they admit their crimes as a condition for leniency or even pardon.

if Obama wants to limit the risks to Americans and damage to U.S. interests, he should start by ordering John Brennan and other intelligence operatives in the U.S. government to shut up, to stop trying to publicly justify their acts of torture, which were contrary to  current U.S. policy and  legal obligations, both international and domestic.

He should also prosecute those “friends if torture” who are releasing without authorization classified information in their defense of torture.

Finally, he should fire John Brennan, who clearly is not equipped or willing to reform the CIA so as to ensure it never commits torture in the future.

Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.