The Senate Intelligence Committee Report on Torture: Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program. Melville House. 549 pages. $16.95.
On December 9, 2014, the Senate Select Committee on Intelligence released its torture report — or, more accurately, a redaction-studded version of the report’s executive summary, which nonetheless delivered far more than might be expected from such a document. This was no bureaucratic whitewash. It avoided the tepid style of most congressional prose, opting instead for a clinical, precise, and engaging narrative that patiently unfolds one of the most dysfunctional and embarrassing episodes in the history of American spycraft. It makes for an instructive comparison with Zero Dark Thirty, which was written and produced with the CIA’s secret backing. The film tells the story of post-9/11 intelligence in the way Langley would like to have it told. But the Senate report unmasks the film as sheer fiction. Not only is it better written than Zero Dark Thirty — thanks no doubt to the editorial talent of Daniel Jones, the former FBI agent who oversaw the entire project — but it has the distinct advantage of being true.
The report has been described as a powerful attack on the CIA. In fact, its authors are united in their aim to make the agency better, not to scrap it. And in any case, the position of the CIA within the American national-security community has never appeared more secure. The agency was born in 1947 and conceived as a civilian institution with analytic responsibilities. It also obtained a limited brief to conduct covert actions, allowing it to influence political or military conditions abroad without showing the nation’s hand. Crucially, the CIA was designed to collect intelligence in foreign countries, not on U.S. soil, and was forbidden any “internal-security functions.” It was viewed as an adjunct to the Pentagon, providing intelligence to a short list of consumers led by the secretary of defense.
The CIA that emerges from the pages of the Senate report, however, bears almost no resemblance to the modest organization created at the end of World War II. It has a titanic budget, as well as its own army and, thanks to a fleet of missile-equipped drones, its own air force. It wages wars directly in Pakistan, Somalia, Yemen, and across the nations of the African Sahel, and it mobilizes proxy armies to do its bidding — arming Afghan warlords to topple the Taliban in 2002, seconding the Ethiopian military’s invasion of Somalia in 2006, and recruiting Libyan exiles to battle Qaddafi in 2011. The agency also operates a far-flung assassination program, deploying drones, bombs, and bullets to kill hundreds of people who pose some perceived threat but have no pretense of recourse to the American judicial system.
Much of this is beyond the actual scope of the report, which bores with intensity into a single program created in the immediate wake of the 9/11 attacks. The protocols associated with the new program significantly expanded the agency’s powers. The CIA was now licensed to seize suspected terrorists, whether snatching them off the street or taking custody of them from other governments. It was allowed to hold these suspects in an archipelago of secret “black site” prisons around the world. And it was permitted — or, more accurately, encouraged — to subject prisoners to interrogation techniques such as waterboarding, hypothermia, prolonged isolation, sensory deprivation, and what the agency calls “rectal rehydration.” (In the report, the latter procedure is described by one operative, with no apparent irony, as a good way “to clear a person’s head.”)
The creators of the program recognized almost immediately that it violated both American law and such international treaties as the Geneva Conventions, the Convention Against Torture, and the International Covenant on Civil and Political Rights. The report reveals that the program’s architects were preoccupied from the outset with the risk of criminal prosecution. This led them to enlist a handful of carefully selected lawyers, who could be counted on to argue that the program was lawful and that the techniques did not amount to torture. Having obtained the requisite fig leaf from the Department of Justice, which guaranteed that no criminal charges could be brought, the CIA functionaries then won official approval from the National Security Council, chaired by none other than President George W. Bush.
This is a key point. Although American forces had used some of these torture techniques before, starting with the Philippine counterinsurgency campaign (1899–1902), the procedures were officially forbidden. Bush’s decision represented the first and only time in American history that the country’s highest executive authority had put its stamp of approval on practices that the United States had previously classified as torture.
Though the black sites and torture techniques were banned by Barack Obama in one of his first official acts as president, the Senate report discloses that the program faced strong internal opposition even within the Bush Administration. Indeed, some of the most hellish components were terminated on the apparent initiative of President Bush in the fall of 2006, more than two years before the transition to the new administration. Similarly, in the midst of packing up before departing Washington, the Bush Administration systematically rescinded almost all its torture-friendly legal opinions, recognizing that they had been widely ridiculed and were no longer politically tenable.
1 Bush had essentially given the agency carte blanche, first in the “Memorandum of Notification” he signed on September 17, 2001, and then again the next year, when the NSC approved the CIA’s request to use enhanced interrogation techniques. When it came to the details, however, Bush was largely kept in the dark until 2006. On April 8 of that year, he was finally briefed by the CIA on its current practices. Quoting from relevant CIA records, the report indicates that the president expressed some discomfort at the “image of a detainee, chained to the ceiling, clothed in a diaper, and forced to go to the bathroom on himself.”
Not surprisingly, Dick Cheney seems to have been the fons et origo of the program, and its most uncompromising defender. Cheney had no legal standing to approve the whole enterprise — he appears to have invoked the authority of the president without actually involving him.1 He also intervened personally and repeatedly to defend the program against internal critics, including John Helgerson, the CIA’s inspector general. Cheney demanded complete impunity for those who worked in the program: in his view, not even the torture and murder of an innocent person — such as Gul Rahman, who was allowed to freeze to death in the Salt Pit, a CIA holding pen north of Kabul — merited punishment of any sort. The interrogators were not criminals but patriots, seeking to avert another round of terrorist mayhem.
Still, not all the blame can be laid at Cheney’s door. The Department of Justice, too, proved all too eager to please its political masters, despite having initially rebuffed the agency’s quest for legal cover. Lawyers at the CIA, led by general counsel John Rizzo and Robert Eatinger, a chief attorney for the agency’s Counterterrorism Center, first lobbied for a “declination letter” — a pledge to indemnify certain criminal acts before they have been committed. This was refused on the grounds that the Justice Department could not openly appear to license crime. Only then did Rizzo and Eatinger attempt to demonstrate that the torture techniques were not, in fact, torture. This argument the DOJ was willing to confirm, in a remarkably credulous fashion, without making any attempt to verify the factual claims on which it rested — many of which turned out to be false.
Following Obama’s election in 2008, Eric Holder, the new attorney general, resurrected the traditional view that waterboarding and several of the other techniques constituted torture and were therefore prohibited by law. However, the Obama DOJ continued to implement its predecessor’s playbook, immunizing all the participants in the torture program. The only person actually prosecuted was John Kiriakou, a CIA agent who had been audacious enough to reveal the Bush White House’s stamp of approval on the program and to identify two fellow agents linked to abuses.
It’s true that a special prosecutor named John Durham was appointed to investigate the most serious allegations of torture and abuse, including two cases of homicide that were clearly connected to CIA interrogations. But Durham was instructed that the agents accused of abuse could rely on the Bush-era DOJ opinions, now rescinded, that had legitimized waterboarding and other horrific techniques. The Senate report strongly suggests that Durham’s investigation was merely the final phase of an elaborate exercise in damage control. The Justice Department that appears in its pages resembles nothing so much as the CIA’s personal attorney, engaged not in law enforcement but in criminal-defense work.
And what of the State Department? The diplomatic and consular corps have historically provided support to intelligence agents, whom they tend to view with some measure of disdain. Indeed, the rivalry between the CIA and the State Department has been acute since 1947, when the agency was launched with the informal motto “Bigger than State by ’48.” The report reveals a relationship between Langley and Foggy Bottom that is, by any standard, humiliating to the diplomats. They are lied to at almost every turn. It is understood that State Department officials, and particularly Colin Powell, the Secretary of State, cannot be trusted with sensitive information about the program because they did not and would not support it. At one point, the report quotes an internal CIA email, which warns that “Powell would blow his stack if he were to be briefed on what’s been going on.” Meanwhile, Powell and his staffers were repeatedly herded onto the public stage to spread the agency’s lies, and to suffer embarrassment when those lies were exposed.
The CIA treated Congress with little more respect, even though the legislature appropriates funds for the agency, makes the laws that govern its conduct, and has the power to oversee and investigate its activities. Among other things, the agency is required to brief senior congressional leaders on its covert programs. The Senate report concludes that while some of these briefings did occur, the CIA systematically downplayed the extent and brutality of its interrogation program — and when further details were requested by congressional leaders, the agency tried its best to get off the hook (in the words of one internal email) “on the cheap.” Of course, the easiest way to deal with these requests was to ignore them entirely, which is often what the CIA did.
At the same time, the report documents a real failure of oversight — and of political will — by Congress. Its investigation was undertaken only when it was revealed that a senior CIA officer had destroyed key evidence of waterboarding, after the torture program had been brought to an end. There was little effort to pursue these questions while the program was actually in effect. Moreover, the protracted history of the Senate committee’s dealings with the CIA, which ultimately led to the issuance of this report, reflects the ways in which, time and again, the legislators were outmaneuvered by the spies. Congress was no match for the CIA’s intrigues within the Washington Beltway.
Of course that other great public watchdog, the American media, was no more vigilant. Langley made extensive efforts to propagandize through both entertainment and news outlets. It had a clear hand in the apologia of Zero Dark Thirty, and a more indirect influence on shows such as 24, whose very theme music intoned the ticking of a time bomb (and whose creators were received as heroes at the Bush White House in 2006). In all of these cases, torture was portrayed as something noble and necessary, or at least useful, and accounts were meanwhile circulated to suggest that real-life terrorist plots had been stopped in the nick of time thanks to enhanced interrogation techniques. (Unfortunately for the CIA, “enhanced interrogation” turned out to be a translation of the same euphemism used by the Gestapo: verschärfte Vernehmung.)
Other efforts targeted news outlets. The Senate report finds evidence of this extensive propaganda campaign in internal CIA communications. There is the example of Douglas Jehl, then a prominent New York Times reporter (and now a foreign editor at the Washington Post), who apparently promised to present the interrogation techniques in the best and most favorable light. The agency clearly felt itself on the winning end of such bargains: when Jehl was assembling an article on the torture of Abu Zubaydah, which included forced nudity, frigid temperatures, and the threatening presence of a crudely built coffin, a CIA officer noted that “this is not necessarily an unflattering story.” (The article in question was never published.)
For CIA lawyers, of course, this flagrant hypocrisy — shoveling fake stories and self-serving “leaks” to friendly journalists while insisting that the courts block any unauthorized disclosures in the name of national security — created a predicament. What would happen if the courts learned about this double dealing? Well, now they have. It remains to be seen what consequences, if any, this will have for the CIA’s edifice of secrecy.
The Senate report spotlights a perpetual struggle in U.S. politics, between the commitment to transparency as the fundamental basis of democratic life and the use of secrecy by intelligence services governed by raison d’état. As Tocqueville observed in the early nineteenth century, American citizens delighted in scrutinizing the private misdeeds of politicians and institutions, subjecting them to intense and often merciless ridicule. Following in this tradition, modern congressional oversight is at least theoretically skeptical about claims of secrecy, particularly when such claims appear to obscure mistakes, incompetence, corruption, or, as in this case, criminality.
At the outset of their investigation, Senator Feinstein and her colleagues agreed that their purview would include only the CIA’s black-site-and-interrogation program. The idea was to inform the public, and to begin an essential conversation about future intelligence operations, without necessarily offering more far-ranging conclusions. Still, the first section of the report does list twenty powerful findings, most of them damning in the extreme. The CIA is roasted for its mendacity and incompetence, some of it rising far beyond the Keystone Kops level we have come to expect. (A single, amazing fact: the agency hired two underqualified psychologists to design the torture program and conduct actual interrogations, paying them $81 million out of a $180 million contract before their service was terminated.) It failed to extract actionable intelligence with its brutal techniques while pretending that they were essential to the nation’s security. Last but not least, its programs “caused immeasurable damage to the United States’ public standing, as well as to the United States’ long-standing global leadership on human rights in general and the prevention of torture in particular.”
Yet these conclusions mask others, which are suggested deep in the text of the report. One of the most important questions about the decision to introduce waterboarding and other forms of torture is, simply: Why? The totemic scenario invoked by the Bush Administration was the ticking time bomb. If an imminent explosion might cost the lives of thousands of innocents, shouldn’t the state use every tool at its disposal to disarm that bomb? Yet in case after case studied by the Senate, no sense of urgency can be found. Prisoners were often locked up for weeks before they were even questioned; the techniques were used long after any time-sensitive information might reasonably have been secured. Moreover, the report concludes that the CIA failed to perform the usual psychological tests on its prison guards, and accepted numerous candidates with violent or sadistic impulses. In many instances, then, prisoners appear to have been tortured for purely vindictive motives.
2 Embarrassed by the entire episode, the CIA surrendered their prisoner to Muammar Qaddafi’s intelligence service, in whose custody he died mysteriously, in 2009.
Which isn’t to say that the Bush Administration had no rationale at all. In footnote 857, we learn about one of the very first instances in which enhanced interrogation techniques were used, on a prisoner known as Ibn al-Shaykh al-Libi. While being tortured in a detention facility run for the CIA by Egyptian intelligence, al-Libi claimed that Saddam Hussein had ongoing relations with Al Qaeda. He would later recant these claims, the moment he was transferred to CIA custody — but even before that date, agency officials were aware of al-Libi’s shaky credibility. That didn’t prevent them from providing his coerced statements to Colin Powell, who would use them to justify the invasion of Iraq before the United Nations Security Council.2 Did the Bush Administration use torture specifically to secure false statements that could then be used for propaganda purposes? The al-Libi case certainly suggests so.
No wonder the CIA worked assiduously to keep this report from seeing the light of day. In a speech delivered in March 2014 on the Senate floor, Dianne Feinstein described the many foot-dragging techniques used by the agency to obstruct the investigation. The CIA insisted that every document be reviewed internally before it was handed over to the Senate, and hired outside contractors to accomplish this supposedly secretive task. It required the review of documents by Senate staffers to take place in the CIA offices, on CIA computers, which meant the agency could easily monitor the investigation later on. It asked the DOJ to launch a criminal investigation against Senate staffers and demanded that the report be crammed with puzzling, sometimes reader-proof redactions.
It is unsurprising that the CIA would resort to these tactics. Some of them are precisely the sort of techniques that skilled bureaucrats have employed for decades in Washington to thwart, or at least slow, congressional investigations, while others are espionage tricks the agency had long been trained to turn on the nation’s enemies. No doubt many of the agency’s officials believed that the struggle was a desperate one. Disclosure of the truth would do immense harm to the reputation of the CIA as an institution. More to the point, it would likely do serious damage to the careers of the senior personnel who ran the black sites and the torture program, many of whom had risen to the agency’s top ranks. Robert Eatinger, for example, had been a senior staff lawyer for the CIA when he first discussed the idea of a declination letter with the DOJ. Now he was the agency’s acting general counsel, and he used all the powers at his command to quash the report, in which his name ultimately appeared some 1,600 times.
To the same end, the agency played a formidable back-room game. Within the White House, CIA director John Brennan patiently lobbied President Obama to bury the Senate report, explaining that its release would demoralize the organization and harm the careers of diligent, loyal operatives like Eatinger. It might also destroy the CIA’s ability to draw on the support of key collaborators — including the governments of Egypt, Lithuania, Morocco, Poland, Romania, and the United Kingdom, which expected their involvement in the black-site program to be kept secret. Brennan enlisted Obama’s chief of staff, Denis McDonough, who offered to represent the president in brokering a final agreement between the CIA and the Senate on material to be censored in the report. As it happened, McDonough proved to be an aggressive advocate for the CIA rather than an impartial mediator. His influence on the president’s thinking, as well as Brennan’s, became apparent in a bizarre press conference on August 1. “We tortured some folks,” the president conceded — and then explained that there would be no legal accounting for these criminal acts, since the torturers were “real patriots.”
Brennan meanwhile launched an extensive (and illegal) PR effort to defend those very torturers. He coordinated his campaign with three former CIA directors who had supervised the program — George Tenet, Porter Goss, and Michael Hayden — and tried to recruit a large number of CIA managers as well, most of whom refused to become involved. Marc Thiessen, a former speechwriter for Bush, served as the group’s publicist. For months before the release of the report, the CIA sent out its cadre of pundits and media proxies, who disparaged the Senate’s efforts and reminded viewers that “torture works.” Even after the report came out, the agency’s apologists continued to command far more attention and airtime than they deserved. American journalists love a good story, after all. And many were still eager to build strong ties with the agency, whose continued ascent seemed assured, no matter how many lies and botched operations were revealed by the Senate probe.
Brennan’s campaign did, however, suffer from one fatal flaw. As CIA officials and contractors were preparing documents for the Senate committee, they also assembled a memorandum for Leon Panetta, the agency’s director at the time, that summarized the same materials. This document, which has come to be called the Panetta Review, was accidentally transmitted to the Senate investigators. Discovering their blooper, CIA officials then hacked into the Senate computers to take the report back — but the recipients, wary of just such chicanery, had already printed a copy and moved it to a secure room in the Hart Senate Office Building.
The Panetta Review had reached the same conclusions, on the basis of the same documents, that the Senate report later did. In other words, the CIA’s own analysis of its records refuted all the cheerleading claims currently being trotted out by its team of publicists. Had the agency, in obstructing the report and spying on Senate investigators, finally overplayed its hand? “Nothing could be further from the truth,” Brennan insisted, following in the footsteps of Michael Hayden, whom the report depicts as a kind of unflappable Pinocchio, fibbing under oath at every opportunity.
While the Democrats united behind the report, the Republicans divided. John McCain, who was himself a victim of torture while held as a POW by the Vietnamese, delivered an eloquent, impassioned speech from the floor of the Senate in support of the committee’s findings. Another Republican senator, Lindsey Graham, condemned many of the CIA’s techniques while voicing some reservations about the report’s timing. Other Republicans, including the party’s congressional leadership, opposed the report, which they saw as a partisan attack on the Bush Administration.
In the end, the report delivers the most sophisticated and detailed study of an intelligence program that we have ever seen. It also pulls back the curtain on the American system of government. Most modern democracies are to some extent dual states. There is the government described in high school civics books, with carefully checked and circumscribed powers — but lurking in the background, there is a far more formidable bureaucratic apparatus, which actually wields the power of the state and cares little for constitutional niceties. In America today, where the veneer of Madisonian democracy is wearing painfully thin, one face of that phantom apparatus is the CIA. The agency is best defined by its relationship with other stakeholders: the White House, the Justice Department, the State Department, Congress, the courts, and the media. Yet it is a power unto itself, regarded with awe — and no small measure of fear — both at home and abroad. Will the Senate report have any effect on the CIA? One can only hope so, for this massive chronicle of malfeasance concerns not only the efficacy of certain interrogation techniques, not only the perennial clash between spies and their civilian overseers, but something far more profound: the nation’s political soul.