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Without torture prosecutions, we can't claim to be a nation of laws

When is torture not a crime? Apparently, when the CIA does it

There’s a lot to be appalled about in the U.S. Senate Intelligence Committee’s CIA torture report -- and yes, what the CIA did was torture. Beyond the atrocious physical abuse of detainees, the report details the agency’s incompetence -- it doesn’t know how many people it detained -- and its willful efforts to hide its misdeeds by lying to the president and Congress and maintaining a disinformation campaign with the media.

As others have noted, the conduct by the CIA and some of its contractors was inhumane and disgusting, regardless of whether they thought they were covered by Bush administration attorney John Yoo's legal rationalization. Much has been made that in the end, the “intelligence” the agents squeezed out of their victims was of little value, which makes a point of painful irony but obscures the darker reality. Even if the CIA had tortured a morsel of useful information out of someone, they still resorted to indefensible practices.

Imagine what the U.S. reaction -- from government officials to everyday people -- would be if we learned that agents of another country had grabbed people from outside its borders, spirited them away to clandestine chambers in third countries, and tortured them. Special forces would be deployed. The United Nations Security Council would convene. Sanctions would be imposed amid talk of isolating a rogue nation from the civilized world.

But because it was the U.S., it's likely nothing will happen despite calls for prosecutions. The Justice Department, which has already passed on prosecutions once, affirmed Tuesday that it will not reopen investigations into possible illegal acts committed by CIA agents and officials, or the people hired by them (yes, the U.S. even outsources torture).

If it is true that we are at war with terrorist organizations, then how is it not a war crime when U.S. agents take prisoners to secret complexes, deprive them of sleep, force them to stand on broken feet, manacle their hands above their heads, and “feed” them rectally?

Anthony D. Romero, head of the American Civil Liberties Union, suggested in the New York Times that President Obama pardon the Bush administration officials responsible for this egregious behavior because pardons would signal that the U.S. government considers torture to be illegal. Besides, he argues, the statute of limitations has expired on many of the incidents, and the Justice Department has already washed its hands of the issue.

That’s a pragmatic sentiment, but it’s wrong. Torture is illegal. Letting those responsible for such inhumane acts slip away without being brought to justice compounds the crime. We like to think of ourselves as a nation governed by laws, but to shrug off torture by agents of our own government tells the world that we not only find the crimes inconsequential, but we’ve turned off the international beacon of justice.

The Times editorial board read the report for what it is: An indictment:

“All in all, the document released Tuesday amounts to an indictment of the CIA and its political enablers that is no less shocking because many of the events it describes happened during the administration of President George W. Bush and would no longer be permitted. No doubt some of the committee's findings about particular circumstances are open to debate. But defenders of the agency will have a hard time refuting its central conclusions, which are based on analysis of millions of pages of internal cables, emails and other communications, along with interviews conducted by the CIA's inspector general.

“The CIA detention and interrogation program was immoral, illegal, out of control and (the committee persuasively argues) unnecessary. President Obama's admission this summer that "we tortured some folks" doesn't begin to convey the appalling violations of human rights and international law cataloged by the Intelligence Committee. The officials who carried out these acts shamed themselves and their country.”

So what do we do with indictments? We prosecute. Except, apparently, when the politics say not to.

The United States has a chance to show the world that we can own up to our errors. By not pursuing charges, we're instead showing the world that American exceptionalism has a dark side.

Follow Scott Martelle on Twitter @smartelle.

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