Jane Mayer of the New Yorker is out with an important new piece of reporting on the battle over the legality and effectiveness of the CIA’s post-9/11 torture program. In the story, Mayer uncovers a brewing discord within the Obama Administration on how to deal with a still-secret, 6,000-plus page study conducted by the Senate Select Committee on Intelligence (SSCI) of the CIA's torture program — what Senator Feinstein (D-Calif.), the committee’s chair, has called one of the most significant oversight inquiries in the history of the United States Senate. Though Mayer’s reporting has a lot of interesting details by way of inside-the-Beltway bureaucratic wrangling, at its core it reveals a basic choice President Obama faces: will he take matters into his own hands and help reinforce the United States’ commitment to global prohibition against torture, or will he let the issue be decided by the self-interested prerogatives of a secret agency loathe to admit its mistakes?
To recap, as one of his first official acts in 2009, President Obama issued an executive order banning “enhanced interrogation techniques” and closing the CIA blacksites at which they were used. When it came to accountability for the official post-9/11 torture policy, though, the president decided that it would be more convenient to “look forward as opposed to looking backwards”: his administration rejected congressional proposals for a truth commission and closed an already overly narrow criminal probe into brutal torture committed by the CIA. Many speculated that this decision was to avoid a conflict with the CIA, which is strongly opposed to any sort of accountability regarding the former detention and interrogation program. (More on that in a minute.)
As a result of this failure to pursue accountability for the CIA torture program, former Bush Administration officials such as Dick Cheney — bolstered by lucrative book deals and shielded by de facto immunity — took their pro-“enhanced interrogation” (EIT) narrative to the American people, arguing that the torture program was lawful, effective, and essential to saving lives — and that the Obama Administration made the country less safe by ending it.
These arguments are based not on publicly verifiable facts, but on claimed secret knowledge, and placed in the context of fictional accounts of how torture works, such as those portrayed in the film Zero Dark Thirty and the hit Fox TV series, 24. Not surprisingly, an increasing number of Americans support the use of torture against terrorism suspects, including all the leading Republican candidates during the 2012 presidential campaign (Ron Paul and Jon Huntsman were the only Republican candidates to oppose the use of enhanced interrogation). In that campaign, Mitt Romney’s policy advisers recommended that, if elected, he rescind the president’s anti-torture executive order.
While torture — repudiated globally as immoral and unlawful — should never have been considered a viable option after 9/11, the entire policy debate over the detention and interrogation of terrorism suspects has gone forward without any systematic assessment of the costs and benefits of “enhanced interrogation.” That’s why the Senate Intelligence Committee decided to undertake what has become the single-most comprehensive study on the CIA’s enhanced interrogation program, at a cost of $40 million and based on a multi-year review of more than 6 million pages of official records.
Mayer’s report focuses on responses, obtained by the New Yorker, from current Department of Defense general counsel, then-CIA General Counsel Stephen Preston, to questions from Senator Udall regarding the Senate intelligence committee’s study, as well as the CIA’s response to the study. Senator Mark Udall (D-Colo.) had placed a “hold” on Preston’s nomination to become the Pentagon’s top lawyer because what Preston had said in his nomination hearing seemed inconsistent with what the CIA had relayed in its response to the Intelligence Committee’s study.
Preston testimony appeared to only further distance himself from the CIA’s official response to the committee’s study, which Senator Udall has claimed is essentially a defense of the now-defunct CIA program rather than an acknowledgement of the flaws associated with it. Satisfied with Preston’s responses, Senator Udall lifted his hold on Preston, and he was confirmed by the Senate last week.
As Mayer points out, the SSCI study contains a 128-page section entitled “CIA Representations to the Department of Justice Related to Intelligence, Effectiveness, and Operation of the Interrogation Program,” which outlines material misrepresentations and omissions to the Department of Justice regarding the EIT program. While the CIA’s response to the study, according to Senator Udall, states that the CIA “found no evidence that any information was known to be false when it was provided to [the Department of Justice],” Preston states that “the DOJ did not always have accurate information about the detention and interrogation program” and that “the CIA’s efforts fell well short of our current practices when it comes to providing information relevant to [the DOJ’s Office of Legal Counsel’s] legal analysis.”
Though there are ways to technically square these seemingly conflicting accounts, this basically amounts to Washington-speak for the CIA’s top lawyer saying the CIA mislead the Department of Justice to get it to approve “enhanced interrogation” techniques while the official CIA position appears to be that it made a good faith effort to disclose to the DOJ what it was required to. Mayer also notes that Preston and the official CIA response appear to be at odds about whether the CIA fulfilled its disclosure obligations to Congress, and whether determinations can be made on the effectiveness of “enhanced interrogation” techniques.
But there are several other important questions that have yet to be explored based on the Udall-Preston exchange:
1. Is the CIA taking this oversight process seriously?
The apparent discrepancy between what the CIA has stated in its official response and what Preston has been willing to say publicly raises the issue of whether the CIA has actually developed a clear position on the key issues related to its former EIT program. This is despite delaying its response to the committee’s study by over five months, and elevating the issue to the deputy director level, with senior CIA officials running the project. However, Senator Udall suggests that the CIA has admitted that no one at the agency has actually read the full study (though CIA Director John Brennan promised to in his nomination hearing), and is instead basing its response primarily on a short, bullet-pointed summary of the study’s findings and conclusions, rather than the full study or even the 300-page executive summary of the report.
2. Where are the other relevant agencies and departments?
While the CIA is clearly driving the administration’s response to the committee’s study, it’s unclear why other relevant departments and agencies aren’t involved more substantially. As noted before, the study contains a substantial analysis of the CIA’s (potentially misleading) representations to the DOJ, and whether this may have impacted the DOJ’s legal analysis of the EIT program. According to Senator Udall, the CIA response states that it found no evidence that “additional or more frequent updates [to the Department of Justice] would have altered the [DOJ’s Office of Legal Counsel’s] key judgments.” Well that, of course, is not the CIA’s call to make. Whether, and to what extent, a more accurate information base would have altered legal judgments made at the DOJ is for the DOJ to say. And the DOJ may have a quite different view than the CIA regarding whether it was provided all the relevant information to render proper legal judgments.
Moreover, given the sprawling nature of the SSCI study, it’s hard to see how the administration’s review and response could be complete and accurate without the views of other agencies and departments. The Office of the Director of National Intelligence, Department of Defense, and State Department, for example, may be better placed to understand what intelligence, diplomatic, and military operations were in effect at the time EITs were employed, which is directly relevant to the question of whether EITs were the only reasonable way to obtain certain intelligence (a finding the DOJ also relied on in several of its legal opinions justifying enhanced interrogation, as Katherine Hawkins points out here.)
3. Where is the White House?
This brings me to the most important point: the White House been largely absent from this process, to the detriment of the president’s own stated policy position not only on torture, but also more generally on government oversight and accountability. The president himself has been silent on the matter, and to the extent the White House has commented on this, it has been to almost completely defer to the CIA while gently encouraging cooperation with the committee. (Andrew Sullivan boldly calls the Obama administration the “one major power-broker” that is resisting release of the SSCI study.)
Where the White House has engaged, it has actually undermined the oversight process, as the Udall-Preston exchange reveals. According to Senator Udall, several thousand pages of relevant documents were withheld from the SSCI based on a potential claim of “executive privilege” by the White House. Preston suggests in his response that a decision on the executive privilege claim is apparently still sitting with the White House, which has been non-responsive.
The important exception to all this has been Vice President Joe Biden, who has stated that the SSCI’s study should be made public, and that the nation needs to “excise the demons” before moving forward. (Interestingly, Jeh Johnson, the president’s pick to head the Department of Homeland Security and the former top lawyer at the Defense Department, has also called for the SSCI study to be made public.)
President Obama should follow Vice President Biden’s lead — and that of many other top national security leaders — and direct the CIA to fully cooperate with the SSCI with the goal of making as much of the committee’s study public as possible. Anything short of that would be to cede ground in the debate over torture, and compromise the president’s own legacy on an important national issue that will help define his presidency — one way or the other.