How the Torture Could Start Again

The Feinstein report opens the door to future presidential waterboarders.

December 16, 2014

Cross-posted on Politico Magazine

The executive summary of the Senate Intelligence Committee’s torture report is full of detail the American public deserved to see, and we learned a lot from Sen. Dianne Feinstein and her colleagues. The problem is that the report cuts off most responsibility with the CIA. As we learned nearly four decades ago, when I served as chief counsel for the U.S. Senate’s Church Committee’s massive investigation of U.S. intelligence agencies under six presidents—Franklin Roosevelt through Richard Nixon—it is extremely dangerous to let off senior officials in this way. Indeed it only risks increasing the likelihood of future use of torture if there is a new calamity like 9/ll.

No doubt the Committee had reasons for narrowing its focus to the CIA, and for emphasizing the CIA’s lack of effectiveness and misleading statements to overseers about the program and its value, as opposed to also exploring the role of the White House and equally emphasizing the illegality and immorality of torture.

But by stopping there, by making the story narrowly about how torture didn’t work in these instances rather than that torture doesn’t work at all and, more fundamentally, that it should never be used by any White House because it is immoral and illegal––as well as harmful to America’s reputation and the safety of American captives––there is greater risk a future administration faced with peril will say: “Well, we can do it better.” And along with increasing the chance of a future White House sliding back to torture, placing blame almost exclusively on the CIA is neither accurate nor fair. The Church Committee initially risked going down the same path in its investigation of CIA assassination plots. Senator Frank Church speculated to the press that the CIA may have acted like a “rogue elephant on a rampage.” Other senators, also speculating, opined the CIA “took orders from the top.” But, after extensive investigation and when the committee released its Interim Report on Assassinations, it declined to adopt either theory. Instead, the Church Committee presented substantial evidence for both views, saying the conflicting evidence made it impossible to be certain whether or not Presidents Eisenhower and Kennedy authorized the assassination plots. Then, in its final reports issued six months later, based on facts from six administrations and review of many more programs and many more agencies, the Church Committee was ready to fix responsibility at the top. Yes, some agency programs were concealed from higher authority, but more frequently it was senior officials themselves who through pressure for results created a climate for abuse, failed to assure compliance with the law, and demanded action without carefully providing for future oversight.

In the case of torture, the Bush-Cheney White House was clearly involved. It pushed for and approved the program; it was complicit in obtaining the deeply flawed legal opinions that redefined the ban on torture to meaningless nothings. White House officials forgot that both George Washington and Abraham Lincoln barred torture in perilous times when Americans were hard pressed in their fight to create the nation or to save it. They also forgot that after World War II the United States led the way in drafting the Geneva Conventions, which prohibit torture and other forms of inhumane treatment. They locked out voices of experience from the State Department and the military who would have warned of harm to America’s reputation and risks to American captives. They failed to listen to FBI experts on interrogation who could have explained we were getting important intelligence through interrogation techniques other than torture. And they forgot, or nobody told them, that after World War II we had prosecuted Japanese officials as war criminals for using on American soldiers the same torture techniques the White House authorized and the CIA implemented after 9/11.

The danger of addressing only part of the problem is this. In his Gettysburg Address, Lincoln called for a “new birth of freedom” so that “government of the people, by the people and for the people, shall not perish from this earth.” But if government is to be by the people, necessary information cannot be hidden from the people. The Church Committee disclosed many embarrassing or illegal government actions that had previously been secret, believing that “the story is sad, but this country has the strength to hear the story and to learn from it.”

In the current case, the public is already aware that the CIA was slow to react to the draft summary and that the CIA and the White House delayed the classification-clearance process for far too long. Even with longer reports covering many more subjects, the Church Committee was able to resolve all classification issues more rapidly. A difference was that the Ford Administration was cooperative and, at least on domestic matters relating to the FBI and CIA, new agency heads agreed there had been wrongdoing. At the start of his administration, President Obama acted promptly and properly in banning torture and releasing the flawed legal opinions that sprinkled blessings upon it. Sadly, with this Senate report, Obama did not force the clearance process to speed up, and the 500-page summary was delayed for far too long by the president’s passive resistance. Secretary of State John Kerry’s last-minute warning of possible dangers from releasing the report surely must have reflected the president’s view as well. (Of course danger from the inevitable discovery of our torture techniques should have been one of the many reasons not to start down the torture path in the first place.)

Obama is not the first president to change his tune on openness and secrecy after he came into office. The reasons for this are several. Once in office, a president is subject to new and powerful pressures. There include reliance on the hard, and generally good, work of the intelligence community in helping a president live up to the awesome responsibility of keeping the nation safe. A president, therefore, has positive pressures to support the intelligence community as well as negative pressures to avoid confronting it on issues such as secrecy that are traditionally seen as going to its core. It is harder to take a longer view of secrecy once in the Oval Office.

But when you do take a longer view of secrecy, most of the documents quoted in the Senate report should no longer be classified. The full documents should be released, except for certain details like the identity of agents and informers. Similarly, the full 6,000-page report should also be promptly cleared and released. After the earlier disclosure of the Justice Department opinions specifying allowable torture techniques and ample discussion of them, as well as the additional lurid details in the Senate summary, there is no reason to argue that what was done should be kept secret. Moreover, the CIA had leaked affirmative assessments of its program to the press, making unfair its efforts to hide its negative assessments. All the documents are part of the history which the American public and future leaders are entitled to, and need to, learn. Nothing is new about this point. The government’s failed argument to keep secret the Pentagon Papers, for example, raised a fundamental question: Why should so much history be secret? But the CIA is particularly greedy (and defensive) in its secrecy claims, still suppressing documents, for example, about the Cuban Missile Crisis—more than a half century ago.

This episode is just the latest example of how during America’s Secrecy Era, starting some six decades ago, government has far too often moved from keeping secrets in order to protect America to keeping secrets from Americans.

The defense put forward by the fathers of and supporters of the torture program is loud with conclusions but squishy on substance. Their credibility is undercut by their failure to describe what was done by its rightful name: torture. Much of the defense is just to say “yes it was” to the detailed findings that the program was not effective. It is revealing that the defenders all fail to address the statements in CIA documents that the post-9/11 program was not effective. They also ignore the CIA’s own conclusions in earlier years that torture was not effective. They also ignore the proof that many of their claimed accomplishments were obtained by standard interrogation techniques, not “enhanced” ones.

One argument made by most defenders is that the committee did not interview witnesses. This ignores two points. First, Justice Department investigations made many witnesses unavailable. Second, the committee did have access to the transcripts of witness interviews referenced in the CIA Inspector General’s report and in CIA oral histories. Moreover, once the CIA obtained the draft of the Committee’s report, it could have easily interviewed its own employees and contractors.

Of course, in an ideal world, an investigation uses both documents and testimony. However, investigators know the truth is far more likely to lie in contemporaneous photos and documents than in later testimony. As for photos, the CIA itself destroyed the videos of interrogations. As for documents, investigation targets are well aware they are vital. A piece of paper or a recording will say the same thing on Tuesday that it said on Monday. Wording in documents is not “reviewed or extended” or recollections “refreshed.” This is one reason the executive branch commonly resists or stalls document production, often relying on secrecy.

The CIA torture tactics were derived from the military’s SERE (Survival, Evasion, Resistance, and Escape) handbook. SERE was used to prepare American soldiers to resist torture that might be used if they were captured by enemy forces. SERE’s techniques were based on torture used in the Korean and Vietnam wars to obtain false confessions from American detainees (and may partly also have been based on CIA techniques used in earlier eras and then condemned by the CIA itself). It is not yet known whether the White House was told of the obnoxious ancestry of the torture techniques it authorized.

This is not the first time America has been tempted to copy our enemies. But, as the Church Committee said almost four decades ago:

“The United States must not adopt the tactics of the enemy. Means are as important as ends. Crisis makes it tempting to ignore the wise restraints that make [us] free. But each time we do so, each time the means we use are wrong, our inner strength, the strength which makes us free, is lessened.”

The language resonates today. It also clearly resonated with the majority members of the Feinstein Committee. And yet too much is yet left unsaid.

(Photo: AP)