CIA Report Suggests Broad Probe of Interrogation Policy Needed

By
Tuesday, August 25, 2009 at 6:00 am
Attorney General Eric Holder (WDCpix)

Attorney General Eric Holder (WDCpix)

After months of leaks and speculation about its content, the Department of Justice yesterday produced a declassified version of the 2004 CIA inspector general report that provides details of the CIA’s investigations of certain detainees in the Bush administration’s “war on terror.” At almost the same time, Attorney General Eric Holder announced that he would conduct a “preliminary review” into those interrogations to determine “whether federal laws were violated in connection with the interrogation of specific detainees at overseas locations.”

Illustration by: Matt Mahurin

Illustration by: Matt Mahurin

But while the Holder probe is expected to be narrow, focusing only on about a dozen cases already investigated and not prosecuted by the Bush Justice Department, the content of the CIA inspector general report suggests that a far broader investigation is warranted. The report makes clear that virtually every step taken was approved by higher-level officials in the government, including lawyers in the Department of Justice. So the newly appointed Assistant U.S. Attorney John Durham, who’s already investigating the destruction of the videotapes of CIA interrogations, may find it impossible — or at least very difficult — to conduct a thorough and ethical investigation that stays within those narrow bounds.

Take, for example, the fact that the report explicitly acknowledges that the Department of Justice approved the use of certain so-called “enhanced interrogation techniques” in ways that were more extreme and more frequent than its written legal memos allowed.

“With respect to two detainees at those [secret CIA] sites,” says the report, referring to terror suspects Abu Zubaydah and Abd Al-Rahim al-Nashiri, “the use and frequency of one [enhanced interrogation techniques], the waterboard, went beyond the projected use of the technique as originally described to [Department of Justice].” But CIA interrogators did not decide to go beyond those guidelines on their own. In fact, the report continues, the “Agency, on 29 July 2003, secured oral [Department of Justice] concurrence that certain deviations are not significant for purposes of [Department of Justice’s] legal opinions.”

Justice Department officials appear to have approved the repeated waterboarding of these men. Other documents confirm that CIA interrogators used the technique on one suspect up to 183 times, and on Zubaydah up to 83 times. A prosecutor taking his job seriously would have to question Justice Department officials about who approved what and why, what instructions they were given and how those instructions were communicated.

But there’s more.

Although the inspector general’s report is heavily redacted, 33 out of 105 pages in all, it strongly suggests that all of the guidelines governing the detention and interrogation of detainees were approved by Justice Department lawyers. Yet the report also suggests that the way the guidelines were written and approved was so vague as to encourage their violation.

The report says that “[a]lthough the [Department of Central Intelligence] Guidelines are an improvement over the absence of such [Department of Central Intelligence] Guidelines in the past, they still leave substantial room for misinterpretation and do not cover all Agency detention and interrogation activities.”

Of course, vagueness isn’t a crime. It may be just bad lawyering. But if Justice Department lawyers deliberately wrote or approved the CIA’s guidelines in a way that was vague and left “substantial room for misinterpretation” so as to encourage their violation, then they were not acting in good faith. And if they knew that the guidelines, as written, were likely to lead to illegal conduct, then they could be liable for conspiracy to commit torture.

The lawyers’ intent in interpreting the law and approving legal guidelines is key. And for a prosecutor investigating how certain terror suspects came to be tortured and even killed during their interrogations, looking into how the techniques that led to the abuses were vetted and approved would seem to be an integral part of any “preliminary review” that Holder may be contemplating.

The vagueness of the guidelines isn’t the only evidence of bad faith on the part of the Justice Department’s lawyers. Just take a look at Footnote 26 of the IG report.

The footnote makes clear that the Justice Department lawyers at the Office of Legal Counsel accepted the CIA’s explanation that waterboarding would cause no lasting harm because the technique is used in a more limited way on U.S. soldiers in their Survival, Evasion, Resistance and Escape, or SERE, training, which teaches them to withstand an enemy interrogations.

Footnote 26 points out, however, that medical professionals told the inspector general that “the SERE waterboard experience is so different from the subsequent Agency usage as to make it almost irrelevant,” and “there was no a priori reason to believe that applying the waterboard with the frequency and intensity with which it was used by the psychologist/interrogators was either efficacious or medically safe.”

In fact, critics of the CIA program have been making the point for months now that repeated, persistent near-drowning, days at a time of sleep and food deprivation, painful stress positions and the range of other techniques used on terror suspects is different when used in the context of a real interrogation by hostile forces, than it is in military simulations by fellow troops.

Maybe it’s possible that the lawyers didn’t think of that themselves. Similarly, maybe it’s possible that, as they wrote in their legal memos, they believed that these techniques would not “shock the conscience” — the Supreme Court’s standard for determining when government officials have violated the Fifth Amendment’s requirement of due process. (The lawyers concluded in their memos that none of these techniques rose to that level.)

Maybe these lawyers were just taking the information they were given and doing what they were told. Still, it would seem that a serious prosecutor probing whether CIA interrogators broke the law would have to ask how and why the Justice Department’s lawyers advised the interrogators based on a factual scenario that seems patently implausible.

Holder’s announcement that he’ll open this preliminary review has provoked reactions ranging from praise to outrage. The Center for Constitutional Rights said Monday that “Responsibility for the torture program cannot be laid at the feet of a few low-level operatives.” While some CIA agents may have gone beyond the limits set out by the lawyers “who twisted the law to create legal cover for the program,” the group stated, “it is the lawyers and the officials who oversaw and approved the program who must be investigated.” The organization called on Holder to appoint an independent special prosecutor “with a full mandate to investigate those responsible for torture and war crimes, especially the high ranking officials who designed, justified and orchestrated the torture program.”

Others, such as former FBI and Defense Department interrogators, have praised the decision to investigate, but called for a broader probe by an independent commission as well. “A nonpartisan, independent commission with subpoena power should assess the deeply flawed policy making framework behind the decision to permit torture and cruelty,” wrote former FBI official Jack Cloonan, and Defense Department interrogators Steven Kleinman and Matthew Alexander to the chairmen of the House and Senate Judiciary and Intelligence Committees.

And Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) himself issued a statement on Monday saying that the CIA report “underscores why we need to move forward with a Commission of Inquiry, a nonpartisan review of exactly what happened in these areas, so that we can find out what happened and why. Who justified these policies? What was the role of the Bush White House? How can we make sure it never happens again? Information coming out in dribs and drabs will never paint the full picture.”

Whether as part of the criminal probe by Durham or as part of a broader investigation by an independent prosecutor or commission, a more thorough investigation may be unavoidable — at least, if the CIA inspector general report receives the careful reading it deserves.

Comments

27 Comments

trippin
Comment posted August 25, 2009 @ 11:18 am

Cheney released a statement, always talking about the poor agents in lieu of himself. He said they “deserve our gratitude” for protecting us from attacks, meaning of course HE deserves gratitude, not a prison sentence.

What “attack” were we protected from? The one with Iraq's WMD? Does he think anyone but a rabid right wing xenophobe war monger dupe believes a word he says? Once he's been proven a liar, he's a liar. I'm surprised his mother didn't teach him that.

If Cheney was so concerned with the CIA, why did he destroy their reputation by demanding they produce intelligence that comported with his lies? This is nothing but more of the same: the torture program utilized techniques designed to elicit false confessions, and were targeted to get someone to say Hussein was connected with 9/11.

We need to get this madman into an orange jumpsuit and reclaim America from the murdering neocons.


johnhkennedy
Comment posted August 25, 2009 @ 2:32 pm

The Torture Memos are part of a criminal conspiracy to avoid compliance with our Federal Torture Laws.

Our Federal Laws forbid all torture, not just the approved torture conjured up by Bush's conniving lawyers in a conspiracy with Bush and Cheney to get around our laws.

It is good start that Attorney General Holder appointed an independent counsel to investigate some of the torture crimes committed by some of those CIA agents that followed the already illegal torture guidelines from Bush Administration lawyers. But it is not enough to prosecute the low level agents. Those that conspired to cause torture Must Be Prosecuted.

Our Federal Torture Law is unambiguous in that all torture is proscribed. Even attempts to get around the law or render the law moot are equally illegal with the same penalties as actually torturing and are described as the crime of conspiracy in the same law.

US soldiers are instructed that they have a responsibility to resist illegal orders. The CIA certainly falls into that same category. Many of their operatives come to them from the military. Don't all Americans have the responsibility to know the law applicable to their particular Government missions?
Including Presidents? And Vice Presidents?

KEEP ASKING ALL POLITICIANS AT ALL PUBLIC EVENTS

“WHY DO YOU SUPPORT TORTURE?”
If they aren't actively calling for enforcement of our Federal Torture Laws,
They ARE Supporting Torture.

SIGN THE PETITIONS
Demanding
both a Commission of Inquiry
and prosecution for all those leaders
in Bush's Administration that
Conspired to Torture at ANGRYVOTERS.ORG

http://ANGRYVOTERS.ORG

Only Prosecution Stops Torture!
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snoailey
Comment posted August 25, 2009 @ 6:32 pm

i think Eric Holder, should leave well enough alone. The CIA did a great job keeping us safe and i would like it to stay that way. The terrorist deserve what they get, considering they killed thousands, and laughed about it , on 9/11. This isn't a game. The terrorists want the US destroyed. We have to be strong.


johnhkennedy
Comment posted August 25, 2009 @ 6:52 pm

Test posting


johnhkennedy
Comment posted August 25, 2009 @ 6:56 pm

If you want the prosecution of the higher ups, know that this process is just getting started. AG Holder, Obama and our Democrats will need a lot of support from us and we will need to push them hard to prosecute executives such as Bush and Cheney.

SIGN THE PETITIONS
Demanding
both a Commission of Inquiry
and prosecution for all those leaders
in Bush's Administration that
Conspired to Torture
at http://ANGRYVOTERS.ORG


John DeFlumeri Jr
Comment posted August 25, 2009 @ 8:18 pm

Leave the CIA alone and let them conduct their business, which is preventing attacks on America by any means that they think will work. Torture the terrorists if we need to, it is the right thing to do!


knowbuddhau
Comment posted August 26, 2009 @ 2:25 pm

How do you know if the CIA did a great job if they won't tell us what they did? What about the 100 dead detainees, 8 of whom were clearly tortured to death? Have you even looked at, much less read, the CIA IG report?

Who, exactly, are “the terrorists”? Have you noticed that bin Laden himself is still at large? How does the brutalization of innocent people, sold into detention or mistakenly swept up in a raid, keep us any safer?

Take the story of Dilawar, the focus of the award-winning movie, “Taxi to the Dark Side.” Did he “deserve” to be beaten to death?

I don't think you're well informed on this issue. It sounds, to me, like you're just indulging in wishful thinking.

News flash: torture has never kept anyone safe. You seem to equate being strong with being brutal: is there no strength in our faith in democracy? “Do as we say or we'll kick your ass until you do, and even then in some cases.” Is that what you suggest as a foreign policy?

It isn't “well enough,” and it needs to be appraised with eyes wide open.

I dare you to read Andy Worthington's blog, and then come back here with a well reasoned, evidence-based argument for your uninformed assertions. For example, here's a selection describing the people on whom you would visit inhuman brutality, just because someone in authority tagged them with the T word. Are you that easily duped into giving up your privileges as a citizen?
~~~~~~~~~~~~~~~~~~~~~
Arrogance And Torture: A History of Guantánamo
By Andy Worthington
http://www.andyworthington.co.uk/2009/08/21/arr…

At the time, the administration claimed that the prisoners were “the worst of the worst.” On January 22, defense secretary Donald Rumsfeld declared, “These people are committed terrorists. We are keeping them off the street and out of the airlines and out of nuclear power plants and out of ports across this country and across other countries.” On a visit to Guantánamo on January 27, he claimed that the prisoners were “among the most dangerous, best-trained, vicious killers on the face of the earth.”

In the weeks that followed, however, this hardcore rhetoric slipped, when Brig. Gen. Mike Lehnert of the Marines, who was the prison’s first commander, admitted, “A large number claim to be Taliban, a smaller number we have been able to confirm as al-Qaeda, and a rather large number in the middle we have not been able to determine their status. Many of the detainees are not forthcoming. Many have been interviewed as many as four times, each time providing a different name and different information.”

Although no one knew it at the time, this frank admission neatly encapsulated all that was wrong with Guantánamo. Following a Military Order issued in November 2001 and an Executive Order issued in February 2002 (PDF), the administration had labeled all the prisoners as “unlawful enemy combatants,” who could be held without charge or trial, and had, moreover, deprived them of the protections of the Geneva Conventions, but in fact little was known about any of them.

In Afghanistan, where most of the prisoners had been held and processed before their long flight to Guantánamo, in brutal, makeshift prisons inside the US bases at Kandahar airport and Bagram airbase, the US military had been ordered to dispense with the Geneva Conventions’ Article 5 competent tribunals. The hearings, which involved calling witnesses close to the time and place of capture, were a traditional manner of separating soldiers from civilians caught up in the fog of war. During the first Gulf War, for example, the military held 1,196 competent tribunals, and in nearly three-quarters of them the prisoners were found to be innocent and were subsequently released.

Moreover, as Chris Mackey (the pseudonym of a former interrogator at Kandahar and Bagram) explained in his book The Interrogators, this lack of screening was compounded by instructions from the Pentagon, which stipulated that all “non-Afghan Taliban/foreign fighters” were to be sent to Guantánamo. As Mackey noted, “Strictly speaking, that meant every Arab we encountered was in for a long-term stay and an eventual trip to Cuba.” The same, it transpired, happened to the majority of the 220 or so Afghans who were also bound like beasts and flown to Guantánamo.

It took years for the truth to emerge: that there had been no screening process for the “worst of the worst,” and that, although perhaps 40 of the 779 prisoners who have been held at Guantánamo were involved with al-Qaeda, the other 95 percent were either completely innocent men — humanitarian aid workers, missionaries, economic migrants, drifters or others fleeing religious persecution — or foot soldiers for the Taliban, recruited to fight an inter-Muslim civil war that began long before 9/11.

Some of these men may well have held anti-American sentiments — based, it must be said, on America’s foreign policy, rather then a hatred of Americans and American values — but few, if any had any meaningful knowledge of al-Qaeda, the 9/11 attacks, or any other terrorist plots (until a handful of significant prisoners were transferred into Guantánamo from secret CIA prisons in September 2006), and no one knew the whereabouts of Osama bin Laden, despite being asked ad nauseam.
~~~~~~~~~~~~~~~~~~~~~~~~~~~


knowbuddhau
Comment posted August 26, 2009 @ 3:24 pm

Word! I bow in your virtual direction.


BEN1234
Comment posted August 28, 2009 @ 6:03 am

On announcement of preliminary review of the interrogations of prisoners in Guantanamo in regard to few cases to find out if federal law had been violated in connection of specific oversea location detainee, at the same moment CIA Inspector General came up with the suggestion for a broader investigation in connection with a dozen cases already investigated.

From the article it transpired that the matter of investigations into some specific cases taken up with the suspicions of interrogation techniques being carried out may have violated the law. it is reported that the investigations taking place already are confronted with serious difficulties in the absence of video taps that had been burnt earlier.

In addition to another problem is the guidelines governing the detention and interrogation of detainees were approved by Justice Department lawyers, wherein the report also suggests that the way the guidelines were written and approved was so vague as to encourage their violation.

All these and many more like unwritten approval to interrogate the detainees also may have grossly violated the continuation of interrogation, and may have definitely helped in creating the scope for the interrogators to violate the federal law.

The manner in which the Justice Department handled the whole issue clearly points out that it was helping an evil designed clandestine inhumane torturing program with an ulterior motive at the instance of the people at the helm of the countries affairs involving a handful of congressional representatives showing enthusiasm to torture under cover of the state sponsored operation with legal coverage thought to have been afforded by the Justice Department.

It is a matter sustained meticulous investigation to find out how far the connected people at higher echelons, the departments including the Justice Department and people of respective departments were involved including the enthusiastic members of the congress in the planning and running the operation of interrogation torture cell.

It now remains to be seen as to what comes out after one broad investigation covering all terms of reference is ordered and the team investigating the matter confines itself to the facts relevant to the issue so as to meticulously cover the events without any miss and ambiguity.

After the investigation and on submission of the report the authority may just take action as per the justified suggestions on the findings of the investigation committee.


Eyepublius
Comment posted August 30, 2009 @ 12:55 am

For those who say, “those practices kept us safe,” then how come so many world-wide bombings took place as the torture was taking place? Looking the other way or looking forward and not back to the crimes is just plain wrong. I am reminded of Justice Robert Jackson's summation at Nuremberg in July 1946 – in part this:

“The record is full of other examples of dissimulations and evasions. Even Schacht showed that he, too, had adopted the Nazi attitude that truth is any story which succeeds. Confronted on cross-examination with a long record of broken vows and false words, he declared in justificationand I quote from the record:

“I think you can score many more successes when you want to lead someone if you don't tell them the truth than if you tell them the truth.”

“This was the philosophy of the National Socialists. When for years they have deceived the world, and masked falsehood with plausibilities, can anyone be surprised that they continue their habits of a lifetime in this dock? Credibility is one of the main issues of this Trial. Only those who have failed to learn the bitter lessons of the last decade can doubt that men who have always played on the unsuspecting credulity of generous opponents would not hesitate to do the same, now.

“It is against such a background that these defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this Trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: “Say I slew them not.” And the Queen replied, “Then say they were not slain. But dead they are…”

“If we were were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no slain, there has been no crime.”


Swami_Binkinanda
Comment posted August 31, 2009 @ 11:37 pm

Moral fail.


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johnhkennedy
Comment posted September 4, 2009 @ 11:39 am

Of course DOJ should investigate all of the Bush-Cheney crimes. It is a crime Not To Investigate & reduces any Voter's respect for our Laws #fb

KEEP ASKING ALL POLITICIANS AT ALL PUBLIC EVENTS

“WHY DO YOU SUPPORT TORTURE?”
If they aren't actively calling for enforcement of our Federal Torture Laws,
They ARE Supporting Torture.

SIGN THE PETITIONS
Demanding
both a Commission of Inquiry
and prosecution for all those leaders
in Bush's Administration that
Conspired to Torture at ANGRYVOTERS.ORG

http://ANGRYVOTERS.ORG

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avoiceofreason
Comment posted September 24, 2009 @ 12:33 am

They all fear even a small narrow investigation because that is how Watergate started. This thing will unravel quickly and the truth will out.


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johnhkennedy
Comment posted October 17, 2009 @ 9:05 pm

Do not understand why Holder & Obama are delaying a full investigation of all of those who conspired to torture in violation of our Federal Anti-Torture Laws?

Are they waiting for the statute of limitations to run out so they can avoid having to do their job? Aren't they for Enforcing our Federal Laws?

Make them do it soon!

Put yourself out for the Truth. Get out in the streets in front of your Congressional Representative's office and raise hell.
Start your own “prosecution” protest group.

KEEP ASKING ALL POLITICIANS AT ALL PUBLIC EVENTS
“WHY DO YOU SUPPORT TORTURE?”
If they aren't actively calling for enforcement of our Federal Torture Laws, They DO Support Torture and a dual standard of Justice.

SIGN THE PETITIONS
Demanding
prosecution for all those leaders
in Bush's Administration that Conspired to Torture at ANGRYVOTERS.ORG
http://ANGRYVOTERS.ORG

Only Prosecution Stops Torture, Abuse of Power, our Constitution, & Rule Of Law


Hawaiianstyle
Comment posted October 18, 2009 @ 6:30 pm

The idea that the CIA's torture practice followed or was no more dangerous than the SERE's procedures misses the point.

It should be noted that the CIA's use of these practices puts the US on a par with the countries that we claim are “third world” terrorist countries with barbarous practices.

Further it puts our troops and mercenaries in a position of jeopardy by allowing those countries and organizations to rationalize to the world that their treatment of our men is no different than our treatment of theirs.

Finally the argument should be settled by simply pointing out that aside from being nonproductive as useful intelligence it is inhuman, cruel and barbaric.


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Are they waiting for the statute of limitations to run out so they can avoid having to do their job? Aren't they for Enforcing our Federal Laws?


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