Why Won't the U.S. Confess That It Tortured People?

This article first appeared on Just Security.

At the beginning of the month, while the President was rumored to be considering privatized rendition and installing a known advocate of waterboarding as CIA director, a bipartisan citizens' commission in North Carolina was confronting what happened the last time America built a covert public-private apparatus to capture and detain alleged terrorists.

Over two days of public hearings, an 11-member panel comprising the N.C. Commission of Inquiry on Torture (NCCIT) heard testimony from victims, former interrogators, religious leaders, and others on the state's role in the CIA's post-9/11 rendition, detention, and interrogation program.

As the first non-governmental and state-level inquiry on the topic, it is clearly novel. The key question is how it can best contribute to accountability when other tools such as government investigation (e.g., the 2014 Senate report on the program) and prosecutions have fallen short.

While the US government has long supported truth commissions as part of a transitional justice "package" abroad, it has not done so at home.

Domestically, such efforts are mainly non-governmental or unofficial, local- and state-based rather than nationwide, and they focus on specific events rather than systemic failures (for example, the first formal citizen-led initiative was the Greensboro Truth and Reconciliation Commission on the 1979 killing and wounding of demonstrators by the KKK and Nazi Party members).

Often, as here, they are formed because governments themselves — despite pressure from concerned constituents — resist responsibility.

Against this backdrop, how then can the NCCIT contribute to truth-telling on a CIA program that by 2008 held at least 119 individuals in 10 "black sites" in six countries?

For one, while much has been uncovered about the program, including its reliance on foreign countries, the role of domestic collaborators is often overlooked.

For example, testimony from The Rendition Project before the NCCIT revealed that North Carolina-based Aero Contractors, Ltd. operated two aircraft N379P and N313P which conducted more than 80 percent of the government's renditions between September 2001 and March 2004.

It reportedly transported 34 — nearly one-third — of the at least 119 individuals in CIA custody.

Local and state officials are also implicated. They provided North Carolina's public airports for rendition flights, built a hangar for rendition aircraft, and refused to investigate these allegations.

In part, this truth-telling is a catch-up exercise. Outside of the United States, the role of North Carolina and private entities in the rendition and torture program — and the illegality of their actions — have been in the public eye.

High-profile inquiries in the Council of Europe and European Parliament have exposed North Carolina-based rendition aircraft. The European Court of Human Rights has decided three landmark cases and three cases have been submitted to African and Inter-American bodies involving individuals on N379P and N313P.

In 2007, a German court issued arrest warrants for North Carolina-based "ghost pilots."

Domestically, however, it has been a different story. The 2014 Senate inquiry into the CIA program focused at the federal level and did not examine states or private companies.

By omitting the stories of victims that were sent to foreign nations for torture by proxy, including on flights departing from North Carolina, it also failed to fully address "rendition."

When it comes to the state's role in the CIA's post-9/11 program, these truth deficits have also meant justice deficits. Individuals disappeared to CIA "black sites" on board North Carolina flights have yet to have their day in US courts, including where Aero Contractors has been a named defendant.

And despite the CIA's program being shut down in 2009, no-one involved has been prosecuted.

To be sure, as a non-judicial, unofficial inquiry, the NCCIT cannot prosecute perpetrators. Lacking subpoena power, for example, its requests to private actors and officials for testimony went unanswered or unaccepted, with one exception.

But in its fact-finding — the hearings, public records requests, and additional investigation — the Commission can identify systemic failures both pre- and post-9/11 that led to abuse.

These findings should in turn shape accountability and reform priorities as well as feed into other measures, including prosecutions (of officials, foreign authorities, and private companies), victim redress (such as reparations), and prevention (such as institutional reform).

Additionally, a focus on legalism — including how the absolute ban on torture binds local and state authorities and requires them to address private actors — can also help put an end to the lingering, extra-legal debate in this country about whether torture works. A debate that itself has been an unnecessary block to righting wrongs against victims.

On this question of victim redress, to date, victims' voices have been significantly excluded from American forums and audiences, whether because of the dismissal of cases on the basis of state secrets, gag orders on detainees and their lawyers, travel bans, or other de facto restrictions on speech and movement.

The gendered effects of the program, including on female family members of detained and disappeared individuals, are similarly rarely heard.

And it is really here that the Commission's contribution cannot be overstated, for it was via Skype that former Guantánamo Bay detainee Mohamedou Ould Slahi and Khadija Anna Pighizzini, the wife of rendition victim Abou Elkassim Britel, could speak directly to a roomful of people ready to listen.

Their words — including when they were asked what justice would look like for them, as well as their families — were neither filtered through others nor restricted by courtroom procedures.

History's lesson on all of this is not mixed. Failure to deal with past abuses means that victims' wounds remain open. But also that — as we have seen this month — without truth, prosecutions, and other guarantees of non-recurrence, banned practices can make their way back.

At the same time, expectations should be carefully managed. Here, the field of transitional justice is instructive: truth-telling processes and their reports are neither a full salve nor substitute for other forms of accountability but rather work best as part of an integrated approach that links truth, justice, reparation, and guarantees of non-recurrence.

The commission's process, as well as its upcoming report in the summer of 2018 presenting findings and recommendations for county, state, and federal authorities, is a necessary starting point on this long road to accountability.

Jayne Huckerby is clinical professor of law and director of the International Human Rights Clinic at the Duke University School of Law and is an advisor to, and a witness for, the NCCIT.

Aya Fujimura-Fanselow is senior lecturing fellow and supervising attorney in the International Human Rights Clinic at Duke Law.