Leaks from an executive summary of a five-year Senate investigation into controversial CIA detention and interrogation techniques have called into further question the already controversial use of “enhanced interrogation techniques.” Revelations from the summary leaked so far suggest that agency officials will be facing interrogations of their own if the complete report is ever made public.
“In a nutshell we’re finding out that the C.I.A. tortured more people, more harshly, more often with fewer results than they claimed to the American public and the American Congress,” said University of Notre Dame Law Professor Douglass Cassel, “and that [the C.I.A.] lied to the American public and Congress about what they were doing and about the supposed benefits of what they were doing.”
The agency’s reputation had already suffered because of the use of water-boarding and other “stress” techniques in questioning prisoners during the period of the Senate investigation—2002 through 2006, the height of the war on terror. Now leaks from the executive summary and comments from Senate staff indicate that those techniques, which few outside of the agency have difficulty describing as torture, did not in the end produce much by way of valuable intelligence. Senate aides told the Associated Press that the pursuit of Osama bin Laden actually owes its successful conclusion to intelligence gathered by a “standard” F.B.I. interrogation conducted without the “enhanced” techniques used on the informant Khalid Sheikh Mohammed by C.I.A. interrogators. The capture of bin Laden has often been held up by defenders of the C.I.A. as proof that “enhanced interrogations” have paid off for U.S. anti-terror efforts.
But even if the C.I.A. had acquired actionable information via torture, according to Cassel, its use would still be legally and morally indefensible.
“Torture is one of the crimes under international law for which there is never…a lawful justification,” said Cassel. “It’s illegal under United States law; it’s illegal under the United Nations Convention against Torture, to which the United States is a party. It should never have been done even if it had been valuable in producing intelligence, and we’re now finding out that it wasn’t even valuable in producing intelligence.”
He expects that the debate over the value of C.I.A. “enhanced” interrogations is likely to continue, however. That’s why, he said, the “facts need to be put out on the table before the American people.”
Leaks so far have emerged from the executive summary of the Senate report. In a closed-door session on April 3, the Senate Intelligence Committee voted 11-3 to declassify that 480-page summary and 20 findings and conclusions of the five-year study. Democratic Sen. Dianne Feinstein of California, who chairs the committee, called the report's findings "shocking," adding it "exposes brutality that stands in stark contrast to our values as a nation.”
The document leak included an early look at some of the findings of the Senate report. The report concludes that:
• The C.I.A.’s use of enhanced interrogation techniques did not effectively assist the agency in acquiring intelligence or in gaining cooperation from detainees.
• The C.I.A. repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis of the C.I.A.’s Detention and Interrogation Program.
• The C.I.A. subjected detainees to interrogation techniques that had not been approved by the Department of Justice or had not been authorized by C.I.A. Headquarters.
• The C.I.A. did not conduct a comprehensive or accurate accounting of the number of individuals it detained and held individuals who did not meet the legal standard for detention. The C.I.A.’s claims about the number of detainees held and subjected to its enhanced interrogation techniques were inaccurate.
• The C.I.A. inaccurately characterized the effectiveness of the enhanced interrogation techniques to justify their use.
• The C.I.A.’s use of enhanced interrogation techniques was brutal and far worse than the agency communicated to policymakers.
The Obama administration has indicated that it likewise supports declassification but under the supervision of the C.I.A. Cassel suggests that might not be appropriate, considering the agency’s obvious conflict of interest in managing embarrassing revelations. Cassel argues it is time for the full 6,000 page report to be made public. “Put that out there in the public; let us debate that in the open, and if the C.I.A. wants to defend what [it] did, let it do so on the basis of public information rather than on the basis of a C.I.A. spin of still secret information.”
At least according to the information leaked so far, Cassel was skeptical that criminal investigations related to torture would be forthcoming because of the report. As a party to the U.N. Convention Against Torture, the United States is treaty-bound to investigate allegations of torture, but for practical and political purposes the Obama administration and the U.S. Attorney General Eric Holder have so far declined to prosecute anyone from the C.I.A. or the Bush White House because of the torture and treatment of detainees in U.S. custody during the war on terror. Holder argues that most agents and Washington staffers are “immunized” from prosecution because they operated under the conditions set down by what has become a notorious finding issued by the Department of Justice’s Office of Legal Counsel and its attorney John Yoo. His so-called Toture Memos argued it was constitutionally permissible for President Bush to authorize the C.I.A.’s enhanced interrogations.
In 2009, two days after taking office, President Obama in an executive order repudiated and revoked all legal guidance on interrogation authored by Yoo and his successors in the Office of Legal Counsel between September 11, 2001, and January 20, 2009, “the only case I know of,” said Cassel, “where the Justice Department has ever withdrawn an opinion of the office of legal counsel and officially is no longer U.S. policy.”
According to Cassel, if the Attorney General is unwilling to pursue torture prosecutions, it is even more unlikely that international bodies will ever take up the matter. The U.S. is not a party to the U.N. treaty which established the International Criminal Court and it is unlikely that complaints against U.S. parties will originate from Afghanistan.
“That said,” Cassel added, “under international law I think the the United States has an obligation to prosecute and the fact that somebody relied on erroneous legal advice is an issue that technically at least should be put before a decision-making judge or a decision making jury to see whether that’s considered to be a sufficient defense.”
If further scrutiny of the agency appears necessary after the public has been given a chance to review the report, it would not be the first time Congress had to step in to curtail the C.I.A. In 1975 the Church Committee critically reviewed the intelligence gathering efforts and actions of the C.I.A., the F.B.I. and other national intelligence entities.
Such periodic reviews seem to become necessary, according to Cassel “whenever you have a powerful agency with a large budget operating in secret” when Congressional oversight is “limited to a small number of Members of Congress.” Those members, he said, “tend to develop a relationship with the C.I.A. and to believe what the agency officials tell them, and whenever there is a perceived national crisis on the part of the C.I.A.—back in the 1960s of course it was the cold war struggle with the Soviet Union, now or rather in the first decade of this century it was the Al Qaeda and related international terrorism—whenever you have that confluence of factors the risk of agency operatives and officials going overboard is obviously present.
“That’s why it’s all the more important that this latest round of activities by the C.I.A. be made as fully public at least [as much] as the 1960s excesses were made public by the Church Committee report.”
The U.S. bishops conference has frequently denounced the use of torture during the war on terror and on April 2 urged that the Senate report be declassified. Bishop Richard E. Pates, Chair of the U.S. bishops’ Committee on International Justice and Peace, in a letter to Congress supporting Senators who were voting for declassifying parts of the report, said that for Catholics, torture is “an intrinsic evil” that cannot be justified under any circumstance. In a letter on March 17 to the committee, he said, “Only by acknowledging past practices can the United States move to regain the moral high ground as a protector and promoter of human rights.” Bishop Pates similarly urged the Obama Administration to support the expedited release of the report.
“It is time for the United States to take a clear stance against torture,” Bishop Pates said. “Release of the full report on C.I.A. interrogation practices will help our country strengthen its moral credibility.”
“Since ‘Pacem in Terris’ the church regards human dignity as essential and [believes] that in the modern world human dignity is expressed in the form of human rights,” said Cassel. “One of those human rights is the human right not to be subjected to torture, so there’s no question that torture goes against the teaching of the church.”
Listen to Kevin Clarke's interview with Douglass Cassell.