The Senate Select Committee on Intelligence produced a 6,300-page report on the CIA’s detention and interrogation program that has still not been declassified in some form for the public to read. And, now New Yorker‘s Jane Mayer has reported on an episode involving the confirmation of a former high-ranking CIA lawyer to serve in a similar position at the Pentagon.
Sen. Mark Udall of Colorado, who serves on the intelligence committee and has been openly campaigning for the report to be released, put a “hold” on Stephen W. Preston’s confirmation. He placed the hold to get Preston to answer some questions about a conflict that has been ongoing between the CIA and the committee particularly over the report that addresses the CIA’s use of torture techniques under President George W. Bush.
Mayer obtained a copy of Preston’s answers to seven questions Udall asked. The answers suggest, as of August 9, the CIA had probably still not bothered to read the 6,300-page report.
The CIA has had since December 14, 2012, when the committee provided a copy of the report to the agency, to respond. It was given a deadline of February 15, 2013. However, “no one person at the CIA has read the full 6,300-page Committee Study.” What they have responded to is bullet points in a small 50-page summary within the report and not even a 300-page Executive Summary.
Preston explained to Udall the agency had undertaken a review and responded to to it to the “full extent believed possible given its volume and that of the underlying record material, and given very limited time constraints, imposed originally by the Committee’s 60-day deadline and, once that was exceeded, by the practical imperative to respond expeditiously following the appointment of a new Director”—John Brennan.
The acting director at the time “adopted a team approach, relying on a group of experienced intelligence officers, rather than a single individual, to conduct the review and prepare comments. He deemed it impractical to respond on a line-by-line basis to the 6,300-page report in any reasonable timeframe, so he directed the team to focus on the study’s 20 conclusions and conduct a ‘deep dive’ on a substantial portion of the study viewed as the basis for a number of the study’s central conclusions.”
Is that somehow supposed to excuse the fact that nobody read the entire report?
No member of the committee probably expected a line-by-line response or rebuttal, however, they would like to know there are people in the agency that took the time to read what was produced. It all seems like a deliberate scheme to frustrate the process.
According to Udall, the CIA offered a “broad definition” for “information obtained from CIA enhanced interrogation techniques,” which included “all information a detainee provided during or after CIA enhanced interrogation techniques, even if that information was provided several years after the use of enhanced interrogation techniques.” The committee decided not to suggest what may have happened if torture had not been used and instead explore whether it was true that this information was “otherwise unavailable” and could not have been obtained from other intelligence sources.
Preston was also asked about how the CIA had not provided accurate information on techniques they were using to Justice Department lawyers in the Office of Legal Counsel. (OLC assessed whether the techniques being used were legal.)
“I believe CIA’s efforts fell well short of our current practices when it comes to providing information relevant to OLC’s legal analysis,” he answered.
To another question, which Udall cited, Preston stated:
My understanding is that DOJ did not always have accurate information about the detention and interrogation program in that the actual conduct of that program was not always consistent with the way the program had been described to DOJ. Of particular note, I understand that, in a number of instances, enhanced interrogation techniques, specifically waterboarding, were applied substantially more frequently than previously had been described to DOJ…
Preston addressed the deliberate misleading or outright concealing of information by the CIA when reporting to the Senate committee:
Had the Executive understood and discharged its congressional reporting obligations as we have in my experience since 2009, I do not believe that the briefings on a program of this nature, magnitude and duration would have continued on a limited, leadership-only basis. Moreover, as discussed in the Agency’s response and further explored in the staff-level discussions, briefings to the Committees included inaccurate information related to aspects of the program of express interest to Members.
For additional context, The Constitution Project’s Detainee Task Force, composed of former high-ranking US government officials, put out a report on detainee treatment that found inarguably the United States had engaged in torture.
“Lawyers in the Justice Department’s Office of Legal Counsel (OLC) repeatedly gave erroneous legal sanction to certain activities that amounted to torture and cruel, inhuman or degrading treatment in violation of U.S. and international law, and in doing so, did not properly serve their clients: the president and the American people,” the Task Force found.
What the CIA was saying about how effective torture happened to be had an effect on the Justice Department.
“The purported efficacy of the techniques was essential to their authorization as legal by the Justice Department’s Office of Legal Counsel during the second Bush administration,” the Task Force concluded. “It analyzed the Fifth Amendment’s bar on executive-branch behavior that would ‘shock the conscience’; such behavior, the Justice Department reasoned, was clearly illegal. That memo, written by Assistant Attorney General Steven Bradbury, acknowledged ‘use of coercive interrogation techniques in other contexts — in different settings, for other purposes, or absent the CIA’s safeguards — might be thought to ‘shock the conscience.’’ However, the memo assured, because these techniques were effective and were “limited to further a vital government interest and designed to avoid unnecessary or serious harm, we conclude that it cannot be said to be constitutionally arbitrary.”
Udall told Mayer that he did not believe the CIA had “sufficiently acknowledge the flaws that the committee has meticulously detailed with thirty-five-thousand footnotes in six-thousand-three-hundred pages.” He, again, declared that as much of the report as possible should be declassified. “Without the right amount of sunshine, some of the problems documented in the study—to include problems that I believe still exist today—will remain uncorrected,” he added.
He stated, “The American people have the right to know what the government has done on their behalf,”
This gets to a larger issue: no persons involved in torture have been held accountable for their involvement. The Justice Department has consciously chosen not to prosecute current and former government officials. Even though the administration issued an Executive Order intended to discontinue the official use of torture or “enhanced interrogation techniques,” the Obama administration has effectively decriminalized torture. In fact, sleep deprivation and sensory deprivation through drugs that do not cause “permanent derangement” can still be used against detainees.
What Udall is doing would be a lot easier if the justice system had been brought to bear against officials, who have been granted impunity. Yet, because there has been no justice, former Vice President Dick Cheney has been able to go on a campaign (along with other former Bush administration officials) where he argues the use of “enhanced interrogation techniques” was limited, not connected to abuses in Iraq or Afghanistan and “prevented the violent death of thousands, if not hundreds of thousands, of innocent people.”
That could explain the resistance from the CIA, to releasing the report to the public in some form and going over the many meticulous details in it after actually reading the full report. It would seriously call into question former officials’ statements, not to mention foreclose the possibility of using these “enhanced interrogation techniques” again, if the agency deemed it necessary like officials did under Bush.