In the [Obama administration's] view, a commission would expose secrets without any means of determining whether they’re properly protected or not, and they’ve been warned that the nation’s spy services would simply cease to function effectively if they’re forced to surrender exacting details about their immediate past conduct. The administraiton further worries that the Commission would be carried out in the context of vengeance and would not focus the rage on lessons learned for the future. This, again, is the point of view senior administration officials; it may or may not be my own.

My emphasis. On the effectiveness point, the history of the CIA is a history of telling Congress that looking at its operations too deeply will cause the entire apparatus to shatter. If it’s true, then the nation isn’t getting what it should be getting for its $50 billion annual intelligence budget anyway. But it’s a dubious point. The CIA did not cease to function “effectively” after the Church/Pike commissions in the 70s; after the 9/11 Commission and the Silberman/Robb Commission and the Intelligence Reform Act of the 2000s. It entered periods of adjustment after its excesses were exposed. Many if not most of those excesses resulted from the magical thinking of policymakers, a point often lost in the rush to blame CIA for assorted failings.

But speaking of those commissions. The recent history of the United States proves that it’s possible to have a thoroughgoing inquiry about the most politically explosive and potentially toxic events in American history and emerge with a consensus. The 9/11 Commission was not without its flaws, but it demonstrated that a group of wise men can avoid rancor, maintain the good faith of both political parties, display independence, yield an authoritative history of an American trauma and do this all in an election year.

That commission didn’t recommend prosecutions. Indeed, it labored to avoid placing guilt, to the point of copping out. That may or may not be appropriate in this case — let an investigation determine that conclusion — and I’m don’t mean to suggest that a truth commission on torture needs to follow the 9/11 Commission to the “T.” But its example refutes the idea that a commission into torture is necessarily an instrument of persecution and vindictiveness. That’s probably why its executive director favors repeating the experience.

Today, though, Pelosi openly dared the CIA to escalate. “I am saying that the C.I.A. was misleading the Congress and at the same the administration was misleading the Congress on weapons of mass destruction,” she said in a press conference. You can read Marcy on that, too. I’ve got a request out to CIA for a response and will post it when I have it.

Lawrence Wilkerson, the former chief of staff to Colin Powell, and Robert Windrem at the Daily Beast further develop the charge that the torture was about yielding information to justify the invasion of Iraq. (Wilkerson repeatedly refers to “my investigations” into Dick Cheney, which seems… bizarre. What investigations?) Josh Marshall thinks this, combined with Pelosi’s j’accuse, “has to create much more pressure to clarify what happened.” Let’s add one more piece to that — something that former State Department counselor Philip Zelikow said yesterday. Zelikow told a Senate Judiciary subcommittee that when he argued in favor of scaling back the CIA’s interrogation regime, his bureaucratic counterweights in the Bush administration would reply, “We briefed the following members of Congress — name name name name name name name — and they didn’t have a problem with this.”

Zelikow is in favor of “a thorough inquiry” into the Bush administration’s experiment with torture, “yielding a public report.” That looks increasingly where this is going.

“The arguments I was making were pretty profound,” answered Zelikow. “Because if I was right, their whole interpretation of the CID standard [the standard for "cruel, inhuman and degrading treatment," forbidden by the Convention Against Torture and by the U.S. Constitution] was fundamentally unsound.”

So they had “a few options,” Zelikow said. One is, “let’s take another look at this” and see if there’s any validity to the different opinion, or, “they could say, Zelikow, this shows how rusty you are in practicing law. We need to tell you why you’ve misunderstood this area of the law.”

But in fact, said Zelikow, “they didn’t do any of those things.” They chose a third option. “They just said, ‘we don’t want to talk about it.’”

And it’s that third option — intentionally burying your head in the sand — that demonstrates bad faith and an intent to ignore the relevant law, as the legal ethics expert David Luban testified.

“Last week he retracted that,” Ali Soufan responded.

Graham: “Can you say there was no good information” resulting from torture?

Emphasizing he’s speaking from his first-person experience, “I would like you to evaluate what we got before” torturing Abu Zubaydah, Soufan replies. Graham: “One of the reason these interrogation techniques have survived for 500 years is because they work.”

Soufan: “There are a lot of people who find it easier and aren’t smart enough” to interrogate someone without torture. Graham finishes by saying Soufan isn’t the “only repository” of information on interrogation.

“I have nothing but the highest regard for this gentleman,” Graham alleges.

One aspect of Ali Soufan’s interrogation of Abu Zubaydah that’s now somewhat cleared up, according to the ex-FBI agent’s opening statement: the FBI and the CIA/SERE-contractor team were in a back-and-forth during the spring of 2002 for how to interrogate him, with each side attempting to win. The “contractor” — probably James Mitchell — “insisted on stepping up the notches of his experiment,” even after Abu Zubaydah apparently stopped cooperating with coercive interrogations. That contractor  “requested the authorization to place Abu Zubaydah in a confinement box” — which Soufan saw as “borderline torture.” He doesn’t give a precise breakdown of when this all happened, but indicates he “was pulled out” by FBI Director Robert Mueller after that; and it all occurred before the August 1, 2002 OLC legal memoranda blessing Abu Zubaydah’s torture. (He wrote in his April New York Times op-ed that it happened in June 2002; the Justice Department’s Inspector General 2008 report suggests it was around mid-May.)

By contrast, here’s how Soufan interrogated an al-Qaeda operative known as Abu Jandal after 9/11. He “advised him of his rights” — what he acidly calls an “Informed Interrogation Approach” — and then the interrogation allegedly reaped:

extensive information on Osama bin Laden’s terror network, structure, leadership, membership, security dtails, facilities, family, communication methods, travels, training, ammunitions, and weaponry, including a breakdown of what machine guns, rifles, rocket launchers, and anti-tank missiles they used. He also provided explicit details of the 9/11 plot operatives and identified many terrorists who we later successfully apprehended.

But nothing on how Saddam Hussein was working with al-Qaeda, so you know you can’t trust a detainee who wasn’t placed in a confinement box with an insect. Indeed, Soufan references Ibn Sheikh al-Libi’s torture, noting that it led to “false information on Iraq, al-Qaeda and WMD.”  Information obtained through torture provides “no way to know whether the detainee is being truthful or just speaking to either mitigate his discomfort or to deliberately provide false information.” Agents therefore chase “false leads” and waste valuable time and resources.

Just as no accounts of information obtained through torture should be taken at face value, neither should Soufan’s account of information obtained without torture. A thorough investigation has to follow up what he’s said to determine its veracity against other information.  But this is an interesting insight: “Nor can it be said that the harsh techniques were effective, which is why we had to be called back in repeatedly.” That, at least, is one explanation for the FBI’s frequent 2002-2004 participation in military and CIA interrogations that I wondered about in my piece yesterday.

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The issue is not whether the CIA program of extreme physical coercion produced useful intelligence; it is about its net value compared to the alternatives. And, even though the program might have some value against some prisoners, it has serious drawbacks just in the intelligence calculus, such as … constraints in getting the optimal team of interrogators … whether the program actually produces much of the time sensitive current intelligence that is one of its unique justifications; loss of intelligence from allies who fear becoming complicit in a program they abhor … poorer reliability of information obtained through torment; possible loss of opportunities to turn some captives into more effective and even cooperative informants; and problems in devising an end-game for the eventual trial or long-term disposition of the captives.

Additionally, he says that the State Department under Secretary Condoleezza Rice in 2005 — who, as national security adviser in July 2002, gave the CIA the policy go-ahead to torture al-Qaeda detainee Abu Zubaydah before the Justice Department’s Office of Legal Counsel ruled on the legality of the proposed interrogation regime — urged reliance on a “cruel, inhuman and degrading” standard when considering what to allow in interrogation.

Last thing: Zelikow says the State Department is currently reviewing his 2005 memo for “possible declassification.” At last: confirmation that not all copies of the memo were destroyed by the Bush administration — and that the State Department actually has a copy.

Then it gets a little more difficult to understand. Graham says he “takes a back seat to no one” in his love of the law, and adds that the Bush administration’s Office of Legal Counsel issued guidance about U.S. anti-torture statutes “in a way I wouldn’t have looked at them” and that he “disagree[s]” with. Waterboarding, for instance, is illegal, and he tells any member of the armed services “you will be prosecuted” for doing so. But it’s … OK for the CIA because “the Geneva Conventions did not apply in the war on terror.” That, however, was a unilateral declaration by the … Office of Legal Counsel.

Meanwhile, the chairman of today’s hearing, Sen. Sheldon Whitehouse (D-R.I.) is lambasting the Bush administration’s “avalanche of lies” about the efficacy of torture.