Late last year, the Justice Department announced that it had charged four Russian officers with the torture of an American citizen in Ukraine. The announcement passed almost entirely without notice, but I think there is a hidden significance in this case that deserves comment.
According to the indictment, the Russian officers abducted the unnamed victim in early April 2022 from his home in Mylove, a small village in eastern Ukraine. During the abduction and subsequent interrogations, they repeatedly beat the victim, stripped him naked, threatened to sexually assault him, vowed to kill him, and at one point conducted a mock execution by pointing a handgun at the back of his head and discharging it next to his ear. Prosecutors in the Eastern District of Virginia charged the four Russian officers with violating 18 U.S.C. Sec. 2441, the federal war crimes statute, which, among other things, makes it a crime to torture an American citizen who is located outside the country.
When the indictment was unsealed, Attorney General Merrick Garland denounced the “heinous crimes against an American citizen” and vowed that the Justice Department would work “for as long as it takes to pursue accountability and justice for Russia’s war of aggression.” Homeland Security Secretary Alejandro Mayorkas said the Russian officers stood accused “of unthinkable, unacceptable human rights violations” and promised the United States would “spare no effort and spare no resource to hold accountable those who violate the fundamental human rights of an American.”
If the allegations are true, the victim in this case was unquestionably tortured. Even though the four defendants will almost certainly never be prosecuted (because they are not in custody and Russia has no extradition treaty with the U.S.), I welcome DOJ’s indictment. It sends the right legal and moral message. (N.B.: Leaving the victim unnamed is not unusual; guidelines issued by DOJ in March 2023 direct federal prosecutors to withhold information from public documents that could identify victims and witnesses. In this case, it is not hard to imagine why the victim would want to remain anonymous, especially if he is still in eastern Ukraine.)
But what, precisely, is the message delivered by this indictment? It is tempting to hope the message is that the United States abhors torture and will bring torturers to account, whoever and wherever they are. FBI Director Christopher Wray came close to this sentiment when he celebrated the indictment with the boast that his agency would “hold war criminals accountable no matter where they are or how long it takes.”
On the other hand, maybe the United States only cares about torture when “they” torture “us,” in which case the lesson of this case is considerably narrower. Barely two decades ago, U.S. citizens were the torturers and not the tortured. After 9/11, the CIA tortured scores of prisoners around the world, using techniques that bear an uncomfortable resemblance to some of those employed by the four Russian officers. Contractors for the Agency, along with officers acting on their behalf, subjected prisoners to months of physical abuse and psychological torment, frequent sexual assaults and humiliations, prolonged sleep deprivation, mock executions, and rectal invasions. None of this is either hidden or contested. On the contrary, it is a matter of well-documented public record.
If none of this history matters, it would summon to mind George Orwell’s admonition written at the end of another war:
All nationalists have the power of not seeing resemblances between similar sets of facts.… Actions are held to be good or bad, not on their own merits, but according to who does them, and there is almost no kind of outrage—torture…, imprisonment without trial…, the bombing of civilians—which does not change its moral colour when it is committed by ‘our’ side.… The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them.
But there is a third possible lesson of this indictment. DOJ knows full well that the conduct alleged in the new indictment looks an awful lot like what the CIA did after 9/11; the similarities cannot be coincidental. Perhaps this new case is meant to be a flag planted in the ground outside 1000 Colonial Farm Road in Langley, Virginia. It is a warning shot fired across the bow of the CIA and the people acting on her behalf who tortured prisoners after 9/11 and who might be tempted or directed to do it again someday.
The statute on which the prosecutors relied gives the federal courts jurisdiction over torture committed overseas if the victim or the offender is a U.S. citizen. This jurisdictional language was added in January 2023. This means that if a U.S. citizen repeats the sort of interrogations the CIA conducted after 9/11, the indictment makes it perfectly clear that the Justice Department would consider it a serious crime. DOJ is saying, in so many words, that what happened cannot and will not happen again.
Could the indictment mean even more than this? Could it mean not simply that the United States will view future cases as war crimes but also those committed in the aftermath of September 11? That is a much more difficult question. On one hand, language added in January 2023 seemed to eliminate any statute of limitations and could conceivably be invoked to justify a prosecution for past torture: A prosecution for torture “may be found or an information may be instituted at any time without limitation” (emphasis added).
On the other hand, prior to committing their tortures, the CIA sought and received assurances that the authorized “enhanced interrogation techniques” would not violate U.S. law. Whether torturers could be prosecuted for using unauthorized techniques (like rectal rehydration and mock executions) has always been contested, and the January 2023 amendment to the war crimes statute makes it even muddier. My own bet is that the Justice Department will never bring a criminal case based on post-9/11 tortures—for political as much as legal reasons.
Let’s be honest: the indictment announced late last year is purely symbolic; no one will ever be prosecuted. But it’s a symbol of what? I’d like to believe it is a symbol that we have entered a new era of accountability for torture.
