The CIA, the President, and the Senate’s Torture Report

Astounding events over the last several weeks have once again put U.S. torture in the spotlight.  Evidence of spying by the CIA on Senate staffers investigating the Agency provoked an unprecedented apology from CIA director John Brennan, calls for his removal, and a response from President Obama at his August 1st press conference.

The backdrop is the long delayed but pending public release of the summary of the over 6000 page investigative report of the Senate Intelligence Committee on CIA torture.  The investigation was initiated over five years ago.  The report was approved by the committee 20 months ago and approved for release 5 months ago.  As we move into autumn, the date of its official release is still in question.

I. The CIA

The CIA has done everything possible to undermine any investigation into its secret rendition, detention and interrogation program.  There have been several facets to the CIA’s defensive strategy:

The Senate report will purportedly accuse the CIA of lying to the public and to Congress.  That will be unsurprising to anyone who knows the long history of the CIA, first revealed in detail by the Church Committee in 1975.  Secrecy and lying have been an Agency hallmark.  The pre-9/11 history of CIA involvement with torture in Latin America and Southeast Asia is just one example.

In 2005, the CIA destroyed videotape evidence of interrogations involving torture. In 2009, the it orchestrated a media campaign warning of the consequences for national security of a criminal investigation, capped by a letter to Obama from seven former directors of the CIA warning that the extremely limited, preliminary investigation of CIA personnel who went “beyond guidance” would severely compromise the Agency.  (The investigation eventually closed with no criminal charges filed.)

When the Senate committee began its work, the CIA insisted investigators use a special CIA facility for the review of documents.  It then monitored Senate staff computers, read staffers’ emails and removed a damning internal report.  Brennan denied that the CIA had spied on the Senate staff, calling the allegations “beyond reason” but in late July the CIA’s Inspector General’s investigation confirmed it.  In March, the CIA countered the charges of spying along with a referral to the Justice Department by asking the DOJ to open an investigation of illegal behavior of committee staff.  In response, Diane Feinstein, the normally hawkish chair of the Senate committee, gave an unprecedented, angry speech on the Senate floor about CIA bullying.

Further, CIA officials have publicly accused the committee of bias and the Agency will write a dissent that will be appended to the report.  Not least, the CIA can virtually dictate redactions.  It is extraordinary that the very agency being investigated by the Senate has the power to redact the Senate’s report of its investigation.  The CIA’s redaction review took months and has now moved to the center of a controversy between Feinstein and the White House (which coordinated, participated in and approved the redaction process).  Feinstein asserted that the proposed redactions “eliminate or obscure key facts that support the report’s findings and conclusions.”  She further said that she will not make the report public “until these redactions are addressed to the committee’s satisfaction.”

II. The President

At a news conference on August 1st, President Obama was asked about Brennan.  First, Obama expressed “full confidence” in Brennan, referring to CIA spying on the Senate staff as a matter that “CIA personnel did not properly handle …” and “some very poor judgment was shown.”  Given the enormous implications for a functioning democracy of the CIA’s unlawful misconduct, Obama’s language seems mild.

Second, the president acknowledged “we did some things that were wrong.”  “We tortured some folks.”  These comments were qualified by “in the immediate aftermath of 9/11.”  Some commentators laud the president for using the word “torture” but others point out that his language actually minimized what happened.  From 2002 to 2009, hundreds of people were tortured and hundreds more subjected to cruel, inhuman and degrading treatment.  There have been over 100 deaths of people in detention, many likely to be a direct result of torture.  The torture and abuse went on for years.  (I leave aside here continuing accusations of U.S. personnel being involved in torture since 2009.)

Third, Obama then claimed to “understand what happened.”  His explanation emphasized “how afraid people were after the Twin Towers fell,” “people did not know whether more attacks were imminent,” and national security officials felt “enormous pressure.”  He told us that we should “not … feel too sanctimonious in retrospect,” given that officials had a “tough job.”   This framing is a version of the fall-back position accompanying the more assertive claims that “enhanced interrogation” kept America safe.  Whether or not torture was ineffective; whether or not it was, as the president said, “contrary to our values”; and whether or not it was illegal, in the end it was, Obama is suggesting, understandable—that is, excusable under the circumstances.

After all, Obama asserted, the acts in question were committed by “real patriots”—i.e., right-minded people who simply acted out of love of country.  The implication is that the torture is pardonable and that it would be ungrateful to criticize patriots for anything more than misjudgment under extraordinary circumstances.  The logic of this nationalist rhetoric is to place off limits the harder questions about what happened and why:  Why did state institutions routinely operate outside the law, lie to Congress, destroy evidence, and adopt a “by any means necessary,” “gloves-off” approach to problems of national security?  Whether CIA operatives or presidents, patriots cannot be held accountable for committing war crimes.  For love of country, let’s just move on.  As Andrew Sullivan put it, “We tortured.  It was wrong.  Never mind.”

Next, Obama—again using the word “torture” and saying that “we crossed a line”–called on the country “to take responsibility for that so that hopefully we don’t do it again in the future.”  Certainly.  Yet, the president might have been more explicit that the line crossed was not only moral; it was legal—and no amount of Office of Legal Counsel “guidance” (based on radically distorted interpretations of what is legally permissible) or even immunities provided by Congress can alter that fact.  Moreover, the “we” who “crossed a line” remains purposefully vague. After all, specific officials crossed that line, acting through the CIA, the military, the executive branch, and with possible complicity by individual members of Congress.

Finally, what does Obama mean when he urges the “country” to take responsibility?  Remember it was the same Obama who in 2009 urged the country to “look forward rather than look backward,” who refused to pursue criminal accountability or even a bipartisan commission of inquiry.  It is the same Obama who appears to be supporting a redaction process that Feinstein says undermines the conclusions of the report.  Obama’s statement that the country should take responsibility is contradicted by his own actions.

Obama is right that Americans should grapple with their government’s use of torture.  Too many Americans have chosen simply to look the other way.  However, the president has not fulfilled his own responsibility to exercise moral leadership.  The task of getting to the real truth of U.S. torture is difficult.  To own up to the moral and criminal failure of our national leaders is even more challenging.  Meaningful accountability is impossible without genuine soul-searching among leaders in government, media and in civil society.  The Senate torture report is a necessary step in that direction.

III. The Report

I offer five reasons why the Senate report is important:

1)  To date, there has been no official report focusing on the CIA’s central role in carrying out the Bush-Cheney administration’s adoption of torture post-9/11.  Although the Senate Intelligence Committee’s report will be compromised by the continued suppression of the full report, by extensive redactions, and by an inevitably limited analysis, it will be the most significant government report to date on U.S. torture.  Torture will once again be given national prominence in the media.

This has not happened since 2009, a pivotal year in “the torture debate” when a series of shocking revelations unsettled the normal timidity of the media establishment.  Then, editors provided space for opinions highly critical of Bush and Cheney’s interrogation program along with views defending the policies. Anxieties swelled among perpetrators and their defenders about how far Obama might go in revealing the full scope of the torture program or who might be held accountable and how.  In a highly charged partisan atmosphere, Republican hawks, led by Cheney, attacked the new president’s change of torture policy and warned of serious consequences that would follow attempts to hold perpetrators accountable.

As it turns out, perpetrators had little to worry about.  After changing torture policy, Obama quickly signaled that accountability was off the table and he remained largely silent in face of the barrage of justifications from Cheney and conservative media commentators.  This silence allowed Cheney and his supporters to shape the narrative.   Since 2009, there have been only a few brief moments—at least within the U.S media–where the torture issue resurfaced, most prominently concerning continuing claims that “enhanced interrogation” was effective in keeping America safe from another terrorist attack.  At the very least, the Senate report will provide a refutation of this argument, although the CIA and defenders of the Bush-Cheney program will mount a vigorous counter-attack.  The debate over the efficacy of torture is crucial.

2) Torture is a high crime under international and domestic law.  Whether or not the Senate report names the crime or recommends legal solutions (not likely; leaks suggest that the report doesn’t even use the word “torture”), the truth of government lawlessness will be laid before the public and will re-energize calls for legal accountability for officials at the top of the political, military and CIA chain of command.  Human rights organizations will recall that the legal prohibition of torture as reaffirmed in the UN Convention Against Torture (ratified by the U.S.) permits no exceptions whatsoever.

They will also remind Americans that their government is under legal obligation to investigate and prosecute those who authorized and carried out torture.  They will emphasize that failure to assign responsibility for past wrongful acts creates a climate of impunity and that the rule of law means nothing if state crimes are exempted.

3) The Senate torture report will also present an opportunity for commentators to ask critical questions about threats to liberal democracy inherent to a national security state.  Already critics are making parallels between the rogue behavior of the CIA and the NSA’s Orwellian, “collect it all” surveillance.  The truth is that post-9/11 was not the first time that the security agencies (CIA, FBI, NSA, Special Forces, and other components of the secret state) have deliberately disregarded, or have been ordered by a president to disregard, legal and moral restraints.  Open government groups are now citing the CIA’s conduct in relation to the Senate committee and its report as exhibit A in their case against unaccountable government agencies and how national security and presidential authority are used to justify the twin abuses of excessive secrecy and evasions of congressional or judicial oversight.  Just as Watergate era revelations led to the Church Committee hearings and reforms, the renewal of the torture debate will raise fundamental questions about the dangers of unaccountable security agencies and the requirements for reassertion of democratic control.

4) Most commentators have focused on the substantial partisan differences over the use of torture and the struggle between those who are fighting for the release of the report with few redactions and those who want to bury it.  These differences are politically significant.  Which side prevails may shape public attitudes toward torture for years to come. However, I want to suggest another dimension.  Powerful forces on both sides of the partisan divide want the torture issue to disappear altogether.  Many military, security and political elites recognize that U.S. torture, approved at the highest levels of government, created an unsurpassed crisis of legitimacy for the country.  Their foremost objective is to restore that legitimacy.

Arguably, this is the principal reason why Obama issued his executive order rejecting torture in 2009 (I believe that McCain would have likely done the same).  It is why the new president counseled amnesia about torture and why he refused to initiate criminal investigations or even a commission of inquiry.  It is why he has fallen mostly silent about the issue of torture.  The U.S. relies on an image that it conducts its wars humanely and in accordance with international law.  Brutality and illegality belong to the enemy.  Occasionally, however, the brutal and unlawful exercise of state violence becomes public knowledge.  The inhumanity of violence “shocks the conscience.”  Legitimacy crises follow.  For the U.S., the Abu Ghraib photos were a disaster but the disaster kept growing with a cascade of revelations that included documentation of torture of prisoners in Guantanamo, Iraq, Afghanistan and CIA kidnapping, renditions, and torture in secret prisons.  The reverberations are still being felt.

In 2014, national security elites in both political parties, including those who disagree about the permissibility of “enhanced interrogation,” are worried that the Senate report will further aggravate the prolonged crisis of legitimacy caused by U.S. torture—a crisis made worse by the government’s refusal to undertake criminal proceedings and support civil suits, and partisan politics resulting in continuing indefinite detention at Guantanamo prison camp and military commission trials that admit torture as evidence.  Most Americans are still unfamiliar with the grizzly details of what their government authorized and which high officials did the authorizing.  Globally, especially in the Middle East, the report will likely reactivate multiple resentments; and it may reinforce dismay among allies.

National security elites will disagree about the efficacy of torture and other aspects of the report, but they will be united in wanting to forestall public disclosure and critical examination of America’s use of coercive power, past and present.  Torture, after all, is not the only inhumane use of state violence; nor is U.S. torture solely an aberration of the Bush-Cheney years.  For the national security elite as a whole, the history of state violence is better left buried or forgotten and dissident voices about current inhumane operations ignored.  Above all, the use of violence as an instrument of policy must remain unencumbered.

For these reasons, even though the CIA will be rebuked by liberal Democrats and perhaps some legislative reforms will be attempted, calls for accountability will continue to be opposed.  For national security elites, the release of the Senate report summary will be treated as the end of the story—time to turn the page to narratives more consistent with the myth of American Exceptionalism.  This closure will be opposed by some, especially by those who understand that post-9/11 torture was not a one-off event and that torture shares characteristics with other forms of state violence.

5) If torture is not wrong, nothing is wrong.  If torture is not wrong, any degradation of human beings in the name of national security is permitted.  The logic of torture not only reflects but also promotes acceptance of a “whatever it takes” paradigm of military power.  Once torture is accepted, anything goes.

Yet, the opposite is also possible. It is not a big jump from abhorrence of torture to revulsion to what other forms of military violence do to human beings.  If the U.S. adoption of torture has shattered the myth of American humane warfare, other aspects of military policy that contravene that myth may come under greater scrutiny.  I do not underestimate the power of nationalist blindness to the suffering of “enemy” others or the misleading language of “precision targeting,” “accidental” civilian casualties and “collateral damage;” but, there are simply too many examples of both global and domestic responses to the inhumane violence of war to be ignored.  In fact, threats to legitimacy stemming from that violence, as I have contended, are a principal concern of national security elites.

If a “by any means necessary” paradigm of national power is the problem rather than officials working under “enormous pressure” in a terrorist emergency, the Senate report–in criticizing claims of efficacy and CIA malfeasance—will fall short.  Nonetheless, the report will lay bare a core contradiction for any state that relies on violence as an instrument of foreign policy: the clash between an inhumane logic of war that resists moral and legal restraint and humane responses to the terrible consequences of that logic.  The best hope for modifying unrestrained violence emerges directly from such a response.

Thus, with the release of the Senate report, human rights and other civic organizations, dissenting journalists, religious organizations, the newly radicalized legal profession, and humane people everywhere have an opportunity to work against the semi-coerced silencing of critical debate not only about torture but also about the link between torture, militarism and all inhumane acts of war.

Rob Crawford is Professor of Interdisciplinary Arts and Sciences University of Washington, Tacoma.