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Torture is illegal. Americans tortured. Why isn't anyone being prosecuted?

Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.

If you're following the revelations from the Senate's newly-released report on CIA torture, two questions might have crossed your mind. Will anyone be prosecuted for this? And if not, why not?

The answer is that, no, there probably will be no major prosecutions for torture, at least not in the US. While torture is illegal under US and international law, most of the legal avenues that could be used to hold CIA and higher officials accountable have been closed off, one by one — many by the Obama administration.

There are three main kinds of possible torture prosecutions: US prosecution for following the Bush administration's rules for torture, US prosecution for going beyond those rules, and foreign prosecution for torturing at all. Here's why none of those three is likely to result in any convictions.

The types of torture prosecutions that could have been brought

John Yoo

John Yoo, the official in the Bush Justice Department's Office of Legal Counsel who authored the "torture memos." He is now a law professor at the University of California, Berkeley. (Randy Pench/Sacramento Bee/MCT via Getty Images)

The difference between the kinds of possible torture prosecutions has to do with the way that the Bush administration, in 2002, gave itself legal permission to torture.

Torture is specifically banned under federal and international lawYet the Bush administration argued that its actions were legal in its infamous 2002 "torture memos," which were drafted and approved by the Justice Department's Office of Legal Counsel. One such memo specifically approved "enhanced interrogation" techniques such as waterboarding. Another memo advised that either the president's executive authority or arguments of necessity (that the action was necessary to avoid a greater evil) could potentially be used as legal cover for even more extreme acts, as Harvard Law professor Noah Feldman writes at Bloomberg View.

Just because the Bush administration deemed certain activities legal, though, doesn't necessarily mean the court system would agree. So it's theoretically possible that Bush-era officials responsible for torture who followed the administration's guidance could still be legally prosecutable.

Separately, some officials who went beyond that guidance could also theoretically be prosecuted for going outside of the approved tactics. One CIA contractor, David Passaro, was convicted for his involvement in a detainee's death back during the Bush administration. Apart from Passaro, no civilians have been prosecuted for involvement in the CIA's interrogation program, though some low-level military officials have been prosecuted for other cases of detainee abuse.

Obama decided not to prosecute anyone who followed orders, or officials who approved the policy

Obama pensive

(Chip Somodevilla / Getty)

"Nobody is above the law," then-Senator Obama said in 2008, when asked whether he'd prosecute Bush administration or CIA officials for torture-related offenses. But he said he also worried that investigations could be viewed as a "partisan witch hunt." Once he took office, the latter view seems to have trumped the former, and Obama quickly decided not to even open cases against either officials who followed Bush administration "rules" on torture or the officials who wrote those rules in the first place.

In early 2009, the economy was in crisis. Obama was seeking passage of several major domestic policy bills, and embarking on other controversial terrorism-related initiatives such as his attempt to close the Guantanamo Bay prison. Meanwhile, he was a new president with little foreign policy experience. And his new CIA director Leon Panetta quickly vociferously argued for no new investigations of the agency.

Obama did ban torture by executive order and publicly released certain memos detailing CIA torture (to comply with a court order). But with so much else going on, he seems to have decided that he had no appetite for a broader conflict with the CIA, or with the former Bush-era officials who would certainly have rallied against him. Along with its release of those torture memos in April 2009, the Obama administration announced that it wouldn't prosecute any CIA officials who followed those Bush Justice Department guidelines.

Obama seems to have decided that he needed a functional relationship with the agency to prevent further attacks (and ramp up his drone war, much of which was run by the CIA). At the time, a senior administration official told Siobhan Gorman and Evan Perez that Obama has "a different set of responsibilities" now that he's "sitting in the Oval Office" and receiving daily threat briefings.

In a statement accompanying the released memos, Obama said, "This is a time for reflection, not retribution," and that "nothing will be gained by spending our time and energy laying blame for the past." (Josh Gerstein has a good rundown of Obama's history on the issue at Politico.)

Attorney General Eric Holder released his own statement in April 2009, saying, "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department."

However, the possibility of prosecuting government officials who had gone further was deliberately left open.

But then Holder decided not to prosecute any cases where officials went beyond the approved techniques

Eric Holder

Attorney General Eric Holder (Alex Wong / Getty Images News)

For a time, there remained the possibility of prosecutions in incidents where CIA officials went beyond the specific approved techniques. Those incidents happened many times, according to this week's Senate report, and even before this week a number of them had been previously reported.

It looked at first like some of the officials in these cases might be punished. In August 2009, Holder announced that he was specially appointing a prosecutor, John Durham, to investigate the agency's interrogations. (Holder again stressed that he wouldn't prosecute anyone who followed the DOJ's guidelines.)

But after a two-year review examining conduct of the CIA regarding 101 detainees, Holder and Durham decided to focus on just two cases in which suspects held by the CIA had died: Gul Rahman and Manadel al-Jamadi. Further examination of any "remaining matters" was "not warranted," Holder said.

A year later, even those two cases were dropped because "the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt," according to Holder. The New York Times' Scott Shane concluded that this announcement eliminated "the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the CIA."

It's not entirely clear why Holder and Durham couldn't bring charges in even one case, considering how many instances of abuse and mistreatment beyond the DOJ's guidelines the new Senate report details. We don't know whether they lacked admissible evidence, saw conflicting evidence, or made a political decision not to push too far. The Guardian's Spencer Ackerman reported that some detainees who say they were tortured were never interviewed about what happened to them during the DOJ's investigation, according to their lawyers. Durham's team interviewed 96 people, and wrote 1,700 pages of material, according to Charlie Savage of the New York Times. (Earlier this year, the Times filed a Freedom of Information Act court action seeking disclosure of these documents.)

The statute of limitations on certain federal torture offenses is eight years — which means the vast majority of the acts described in the new report are now beyond that limit. Furthermore, the administration has known about the contents of the newly-released report for over a year now and there's no sign it's changed its position on prosecutions, or lack thereof. (A Justice Department spokesperson told Savage of the New York Times that all information the Senate report found had already been considered by Durham's team.)

Still, some officials could be prosecuted internationally

UN office in Geneva

The United Nations building in Geneva. (Johannes Simon / Getty)

Because of the international treaty banning torture, human rights activists have hoped that prosecutions of US officials involved in torture could be pursued in foreign court systems.

"Some human-rights groups are now seeking to petition European courts to renew efforts to prosecute Bush administration officials under the principle of universal jurisdiction," Eli Lake and Josh Rogin report at Bloomberg Views. This is the principle that former Spanish judge Baltasar Garzón cited when he issued international arrest warrants for foreign officials such as former Chilean president Augusto Pinochet for human rights abuses. (Garzón, famous for such largely symbolic warrants, left his post in 2010.)

On Tuesday, Ben Emmerson, a special investigator for the United Nations Human Rights Council, released a statement calling on the US to prosecute Bush administration officials involved in the program. He added, "Torture is a crime of universal jurisdiction. The perpetrators may be prosecuted by any other country they may travel to."

But as long as the US officials involved don't travel to any country that has issued an arrest warrant for them, they'll likely face no consequences. In Germany, there have been criminal indictments for years against 13 CIA agents involved in the rendition of German citizen Khaled al-Masri, without result. 22 CIA agents have been convicted in absentia for a similar case in Italy, as Time's Vivienne Walt describes. These prosecutions have been wholly symbolic, but even that is more than anything that has come from the US justice system.

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