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US Delegation Refuses to Explain to UN Committee Why Durham Review Ended in No Torture Prosecutions

Brigadier General Richard Gross and Mary McCloud, Acting Legal adviser U.S. State Department at the UN Committee against Torture hearings in Geneva, Switzerland, Nov. 13, 2014. On the far right is Tom Malinowski, Assistant Secretary of State for Democracy, Human Rights and Labor.  (Photo: John Zarocostas/McClatchy)

Members of the United Nations Committee Against Torture reviewing the United States’ compliance with the Convention Against Torture (CAT) asked multiples times for further explanation of why a preliminary review into allegations of torture ended in no prosecutions. The US delegation, however, chose to keep the review shrouded in layers of secrecy, perpetuating a perception that the review was not credibly conducted.

Every four years signatories to the CAT are required to submit reports on how they are complying with the ban. The Committee reviews the country’s report and invites government officials from that country to attend a session to provide additional information. The session allows the Committee to put forward questions, which the government will then address. Today, the government addressed numerous questions, which had been posed on November 12.

One of the many critical issues raised was the fact that Attorney General Eric Holder had appointed Assistant US Attorney John Durham in 2009 to conduct a preliminary review into “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.” But, in June 2011, Durham decided that only the death of two individuals in US custody at overseas locations warranted the opening of “full criminal investigations.”

By August 30, 2012, the criminal investigations into the deaths of those individuals were closed. The Department of Justice declined to prosecute “because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt.”

David Bitkower, who is the Deputy Assistant Attorney General for the Justice Department’s Criminal Division, attempted to satisfy the concerns of the Committee:

…Mr. Durham and his team reviewed the treatment of 101 such detainee cases. In so doing, he drew upon information provided by the CIA inspector general and report from the International Committee of the Red Cross regarding the treatment of high-value detainees formerly in CIA custody, the Department of Justice’s report on legal guidance related to enhanced interrogation techniques and other sources. After reviewing a substantial volume of information, Mr. Durham recommended the opening of two full criminal investigations and Attorney General Eric Holder accepted that recommendation.

After investigation the Department ultimately determined not to initiate prosecution of those cases. That decision was made based on the same principles that federal prosecutors apply in all determinations of whether to initiate a prosecution. Specifically, Mr. Durham’s review concluded that the admissible evidence would not be sufficient to obtain and sustain convictions beyond a reasonable doubt…

However, there were no specific incidents, which Durham may have examined, mentioned by Bitkower.

“Because the cases did not result in prosecutions, I cannot publicly describe with specificity the investigative methods employed by Mr. Durham or the identities of any witnesses his team may have interviewed,” he declared. “Overall, however, the investigations involved interviews of approximately 96 witnesses and the examination of physical and documentary evidence. In short, Mr. Durham had access to and reviewed a broad array of information relating to allegations of mistreatment.”

“In addition, prior to Mr. Durham’s review, career prosecutors at the Justice Department reviewed certain cases involving alleged detainee abuse. The interviews led to charges in several cases including the cases I previously discussed. The Department decided not to initiate federal prosecution in other cases for reasons consistent with the same principles of federal prosecution that I discussed before.”

Deputy chairman Giorgi Tugushi, a Georgian former public defender, who raised the issue of the Durham review ending in no prosecutions yesterday, reiterated that the committee was not satisfied with the US delegation’s answer.

…Any investigation into possible ill treatment by public officials must comply with the criterion of thoroughness. And, actually, to be considered credible, it must be capable of leading to a determination of whether force or other methods used were or were not justified under the circumstances and to the identification and if appropriate to the punishment of those concerned…

“Sure, this is not an obligation of result but of means,” Tugushi added. But the US was required to identify and interview alleged victims, suspects and eyewitnesses. It was required to “seize instruments which might have been used in ill treatment and also to gather forensic evidence. “So, it’s rather unfortunate that we can’t get full answer on our question on whether the witnesses have been involved in the process and have been interrogated as required by the best standards of investigation.”

Jens Modvig, a Danish expert serving on the Committee said he recognized that in most cases the US found there was “insufficient evidence.”

“Well, you might think you don’t find what you’re not looking for because there were between 100-130 detainees in CIA custody as part of the [Rendition, Detention & Interrogation] program. That’s not that many. Was any of them interviewed?”

The questions are extremely valid, as The Guardian reported that five Libyans, who had been in CIA custody, had written a letter to the committee urging the committee to press the US delegation on why they had not been interviewed during Durham’s review. Shortly after, lawyers for more detainees who claim the CIA tortured them came forward to say they had not been interviewed either.

Bitkower clung to the US position of concealing aspects of the investigation and replied, “I can only say that I appreciate the frustration that the committee must feel at the limited information that we can provide in the context of investigations that did not lead to public charges or prosecutions. And I also want to address up front the premise of some of the questions, which is that if we did not interview certain people or conduct certain investigative steps we must not have been looking to find the truth. And I have to vigorously disagree with that premise.”

He went on, “Number one, we have not acknowledged one way or the other who it is that the Durham investigation team interviewed or did not interview, and I am not in a position to do that today. What I can unequivocally is that the mandate Mr. Durham was given by the Attorney General was to determine whether charges could be brought and proved beyond a reasonable doubt consistent with all the safeguards that every defendant gets in every federal court in the United States. He was given a mandate. He was given the tools to do that and he was given the opportunity if he thought necessary to seek an expansion of that mandate.”

Bitkower also stated, “Many of the cases that Mr. Durham’s team reviewed had previously been reviewed by other career federal prosecutors.”

“Not only was there not an attempt to not find the truth, there was an attempt to reevaluate previous decisions that were made to make sure we had gotten it right this time.”

But Jamil Dakwar of the American Civil Liberties Union, who attended the proceedings, told Firedoglake, “We still have no assurance that there has ever been a top-to-bottom criminal investigation that has included an investigation of any possible criminal conduct by government officials who authorized or ordered the use of torture and abuse.

“The [Obama] administration should match its rhetoric with actions by supporting accountability for torture and ensuring a comprehensive investigation of the torture and abuse that occurred,” Dakwar added. The administration must also ensure that perpetrators, including senior military and civilian officials who authorized or acquiesced in torture, are investigated and prosecuted if warranted by the evidence. We still don’t have any assurance that this kind of investigation has ever been done—and there is no sign of any interest by the administration in doing it.”

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