With Americans reeling from the shock of the September 11 terrorist attacks, President George W. Bush directed the Central Intelligence Agency (CIA) less than a week later to capture, detain, and interrogate those responsible for the attacks or possibly planning new ones. Two months later, CIA lawyers identified what they evidently regarded as a central issue.
“A policy decision must be made with regard to U.S. use of torture,” the lawyers wrote in a Nov. 26 memo entitled, “Hostile Interrogations: Legal Considerations for C.I.A. officers.” The lawyers noted that “a novel application” of the recognized legal defense of necessity “could be used to avoid prosecution of U.S. officials who tortured to obtain information that saved many lives.”
The memo came to light only this week [Dec. 9] as part of the 700-plus page report from the Senate Intelligence Committee issued after the committee’s six-year investigation of the CIA’s detention and interrogation policies. The committee’s majority Democrats disagreed with the Republican minority over the document’s import. Six of the panel’s GOP members noted in their minority views that the CIA lawyers went on to reject the hypothetical use of a necessity defense.
Still, the memo shows that “torture” was on the table even before the CIA had fashioned or started to use the tactics that the committee majority says were even more brutal than already reported. Throughout the Bush administration’s remaining seven years in office, the “T” word was banished from public statements. Instead, administration officials crafted the Orwellian phrase “enhanced interrogation tactics” for practices such as waterboarding recognized as torture when used by other countries but apparently not by the United States.
More than a decade later, CIA apologists still demur. On the PBS NewsHour [Dec. 10], former agency spokesman Bill Harlow rejected the T word in favor of the bureaucratic acronym “EITs.” But Intelligence Committee chair Dianne Feinstein, the California Democrat who has been if anything less critical of the CIA than warranted, finds no basis for ambiguity. “It is my personal conclusion,” Feinstein writes in the opening of the 526-page majority report, “that, under any common meaning of the term, CIA detainees were tortured.”
The issue is more than semantics. Torture is prohibited by domestic and international law, without exception. The Justice Department’s Office of Legal Counsel’s infamous memo written by John Yoo contended that the president had powers as commander in chief to authorize the use of torture despite the law, but the memo was repudiated by the OLC’s later director, Jack Goldsmith. And apart from legal considerations, “torture” is harder to sell to the public than “enhanced interrogation tactics,” even if polls indicate public support for torture if needed to save lives.
On that point, the Intelligence Committee majority is emphatic. The CIA’s interrogation tactics, the report concludes, did not save lives, thwart attacks, help capture high-value terrorists, or produce significant “actionable intelligence.” Feinstein, seven Democrats and Maine’s Democrat-caucusing-independent Angus King all subscribe to that proposition.
Maine’s somewhat independent Republican Susan Collins joined in the majority report, but wrote in separate views that she finds it unknowable whether the interrogation tactics were or were not effective. The committee’s Republican vice chairman, Georgia Saxby Chambliss, and five other Republicans insist the evidence shows the “enhanced” interrogations did produce information essential in, among other things, capturing 9/11 mastermind Khalid Sheikh Mohammad and thwarting several plotted attacks.
That debate, detailed in a New York Times graphic, will continue. Seemingly beyond dispute, however, is the Intelligence Committee’s finding that more detainees were tortured than previously reported 39 in all and that the tactics were more brutal than previously known. Readers with weak stomachs will want to skip the passages about the five detainees subjected to “rectal rehydration.” Bush himself was said to have flinched when told about a detainee who was chained to the ceiling of his cell and forced to urinate and defecate upon himself.
Bush was never fully briefed on the program, however, according to the report. Nor were the House and Senate intelligence committees, which supposedly oversee the CIA. The agency kept the very existence of the interrogation tactics secret from Secretary of State Colin Powell and Defense Secretary Donald Rumsfeld, fearful of opposition, especially from Powell. Once the cover was blown by the Washington Post in late 2005, however, the agency worked with compliant media contacts to selectively leak information and misinformation to depict the program as a success.
To top it all, the CIA managed the program with bureaucratic ineptitude. The military psychologists who designed the program and received $81 million in fees for their company knew nothing about al Qaeda or terrorism in general. Untrained interrogators were used, few records were kept, and some of those tortured were marginal figures at most. At the McLean headquarters, officials were often fuzzy on the details.
As for accountability, that is not going to happen. The most damning evidence the videotapes – were destroyed on orders from spymaster Jose Rodriguez, with no one prosecuted. The Justice Department reiterated this week that there is no basis for criminal prosecutions. The president who might have been subject to impeachment is out of office; the major architects of the program are out of government, comfortable in the private sector or academia. But the committee at the least has put down one marker. “This and future Administrations,” Feinstein writes, must “ensure that coercive interrogations practices are not used by our government again.”