Part IV CIA Torture Report: No looking back: the CIA torture report's aftermath by Spencer Ackerman from The Guardian
No looking back: the CIA torture report's aftermath
The CIA attacks the Senate’s published findings on torture, a report
that was the result of six years of work by Daniel Jones. Now he sets
out to defend it
“I want to be absolutely clear with our people and the world. The
United States does not torture,” said George W Bush on 6 September 2006.
Bush was, for the first time, acknowledging the existence of the
program that Senate intelligence committee staff investigator Daniel
Jones would later expose as taking power drills to the heads of captured
men; making them stand with their arms stretched above their heads for
days at a time; leaving at least one of them naked until he froze to
death; waterboarding them to the point of catatonia as bubbles rose from
their open mouths; and inserting pureed food into their rectums while
claiming it was necessary for delivering nutrients.
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Details of those procedures were outlined in the 525 pages which CIA director John Brennan, Barack Obama and White House chief of staff Denis McDonough allowed to become public.
The CIA’s response to Jones’s report was split into two corps, one official and one not. The agency itself would no longer defend torture outright
because that would contradict the Obama White House’s position on the
unacceptability of torture. Instead, the agency would say that tortured
men produced valuable intelligence, just not necessarily as the result of torture, and that the Senate could not definitively prove the torture did not produce valuable intelligence.
Brennan gave a press conference following the release of the report
in December 2014. It began with him spending five minutes reciting the
unfolding developments of the 9/11 terrorist attacks and crescendoed
with him calling the relationship between torture and useful
intelligence “unknowable”.
Jones’ boss, the driving force behind the report, California Democratic
Senator Dianne Feinstein unexpectedly live-tweeted responses to
Brennan’s press conference as it progressed, creating the hashtag
#ReadTheReport.
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CIA director John Brennan reacts to the Senate torture report
The second corps consisted of retired CIA directors, a group known
colloquially as the “Formers”. They laid into the Senate committee with a
vigor that Brennan, who still had to answer to it, could not. The
Formers, who would in September 2015 attack the report in a book called Rebuttal,
called the committee’s work a partisan hit job. They disdained it for
not interviewing CIA officials involved in the program – all the while
ignoring the fact that committee Republicans and Obama’s justice
department prevented Jones from conducting those interviews. They reiterated the insistence
that torture yielded a wealth of intelligence and derided the Senate
report for what they called its leaps in logic. One of them was former
acting director Michael Morell, a frequent television guest, who would
publish a memoir in May 2015 recapitulating much of the standard CIA line.
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“Morell,
he presents himself as this thoughtful guy, who’s really in the weeds
and knows things, but he went out and talked about how the report was
inaccurate, he wrote a book with inaccuracies. He stated publicly that
he had only read 300 pages of the executive summary and told Feinstein
he hadn’t read the full report,” Jones said.
“It was the same problem with the agency, over and over again. Either
you are knowingly spreading inaccurate information, which is pretty
terrible, or you just don’t want to know, and you take a briefing with
inaccurate information and you just repeat it.” CIA
spokesman Ryan Trapani said that the agency did not coordinate its
response with the Formers. The Senate committee “withdrew its approval
to let former officers read the executive summary prior to its release
to the public, so some were not able to read or prepare responses to the
accusations until [the committee] released its executive summary to the
public,” Trapani said.
Glenn Carle was a CIA officer from 1985 to 2007. He knew Brennan
while at the agency and respects the director’s “subtle and fair mind”.
After 9/11, Carle was called upon to interrogate a terrorism suspect he now believes is innocent.
Although he did not use the brutal techniques called out in the Senate
report, the experience deeply affected Carle, who has become a vocal
critic of the agency’s post-9/11 torture.
While Carle said the CIA often holds a legitimate feeling of
besiegement against outside criticism – “We’re always the ones left
holding the bag after we’re asked to mine the harbors or overthrow the
government,” he noted – the fury of the CIA reactions to the Senate
troubled him.
“I was dismayed by the response, which I thought was in parts
intellectually shoddy, simple-minded, unnecessarily defensive,
circle-the-wagons reactive and wrong and harmful,” Carle said.
He continued: “We were well outside of the bounds, and it was
obvious. And part of the defense the agency used, the Bush
administration used, defenders, proponents, Republicans use, is that
‘You have to understand the context of the times, we were all afraid
there was going to be another attack, we had to act.’ That’s all
bullshit. No, you cannot do that. Our job is not to react emotionally,
and in fear, and reflexively, which is what that is a justification for
doing. Our job is to get it right. Our job is to see through that and
have the courage to act correctly.”
The CIA was not alone in attacking the report. The Senate committee’s
Republicans, who had pulled out of the inquiry in September 2009,
savaged it as a Democratic witchhunt – a critical boost for a CIA that
wanted to avoid the narrative that it was pitted against the Senate.
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While
in 2009 the committee Republicans had urged the CIA not to grant
interviews while a parallel justice department inquiry unfolded, now
they attacked their Democratic colleagues for not renewing a request
once the DoJ inquiry was concluded in 2012: “The committee had a window
of opportunity to invite these relevant witnesses in for interviews, but
apparently decided against that course of action.”
Jones said: “The Republicans were never supportive of interviews. Period. They just played games with this.”
As the CIA’s rebuttal strategy began to unfold, Democrat Mark Udall
took to the Senate floor. Udall was less constrained than any
intelligence committee member. He had lost his re-election campaign and
had only weeks remaining in the chamber. Udall had earlier flirted with
reading the entire report into the Senate record and daring the
administration to prosecute him. Instead, he excoriated the White House
for aligning with the “flippant and dismissive” CIA against the Senate.
“While the study clearly shows that the CIA’s detention and
interrogation program itself was deeply flawed, the deeper, more endemic
problem lies in a CIA, assisted by a White House, that continues to try
to cover up the truth,” Udall said on 10 December 2014. He accused the
White House of “letting the CIA do whatever it likes, even if its
efforts are aimed at actively undermining the president’s stated
[torture] policies.”
Udall continued: “Director Brennan and the CIA today are continuing
to willfully provide inaccurate information and misrepresent the
efficacy of torture. In other words, the CIA is lying. This is not a
problem of the past.” The
report was the result of six years of Jones’s work. The seventh year
was consumed by two tasks: defending the torture report against its CIA
and Republican critics; and attempting to entrench its purpose –
preventing torture – into law. Success would vary.
Jones still wasn’t speaking in public. He was a Senate committee
staffer, although he recognized, now that North Carolina Republican
Richard Burr was chairman, his position on the committee was untenable.
Richard Burr, right, with Dianne Feinstein and Ron Wyden
Photograph: Pablo Martinez Monsivais/AP
In his first month in office, Burr took an extraordinary step. The
Senate had delivered copies of the classified report across the
executive branch to the various agencies – the justice department, the
Pentagon, and so forth – with equities in it. Burr, in his first month
as chairman, formally requested the copies back. Burr’s home-state
newspaper, the Raleigh News & Observer, editorialized
that the senator preferred “to hide the misdeeds of the CIA’s secret
prisons rather than have others in government review what happened”.
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The
ACLU, which had sued for disclosure of the document, filed an emergency
motion to block Burr. In response, the administration pledged to
“preserve the status quo”, meaning that it wouldn’t give the classified
report back. If there was an opportunity to learn lessons from careful,
private reading of the full report, the agencies did not take it – they did not even remove the 6,700-page classified report from its packaging
– an issue complicated by freedom of information lawsuits that mired
the documents in bureaucratic limbo. The report’s advocates considered
that a final gut punch from the administration: “The point is to learn
from it,” Jones noted.
Ron Wyden, the Oregon Democrat and intelligence committee member, has
not given up. “I want the full report out, with necessary redactions,”
he said.
Carl Levin, a recently retired Michigan Democratic senator whose
chairmanship of the armed services committee made him a non-voting
member of the intelligence panel, considered it a legacy issue for
Obama.
“The president ended the CIA program by executive order in January
2009, as one of his first actions in office. By distributing the
classified Senate study throughout the executive branch as appropriate
before he leaves office, he’ll be making it less likely that his
executive order will be rescinded by a future president,” Levin said.
As the public attacks on the report compounded through 2015,
Feinstein opted to wage a continuous response. Jones’s new job was to
pore over each criticism from the CIA Formers or other prominent
surrogates and rebut them in statements Feinstein would send to
reporters and place on her website. The task was not much different from
how he had spent the previous six years.
The first major salvo came in the name of former Indiana Democratic
senator Evan Bayh, himself a former intelligence committee member,
barely a month after the Senate report was published.
Evan Bayh
Photograph: Win McNamee/Getty Images
After the inspector general had taken the agency to task for
breaching the network firewall, Brennan asked Bayh to convene an
“accountability board” to review the episode. As Bayh already served on
the CIA’s advisory board, his report, unsurprisingly, exculpated
Brennan, walked back the inspector general’s denouncement of the network
breach, said the five CIA officials involved in the breach acted
reasonably, and criticized the committee.
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Bayh’s
account, issued in January 2015, prominently reiterated that that the
CIA and Senate lacked a “signed memorandum of understanding” limiting
the agency’s role on the network – despite the sheaves of agreements in
May and June 2009 between Panetta and Feinstein explicitly laying that
out – and noted that the login screen on RDINet referenced the prospect
of monitoring and warned of a lack of privacy expectation. Still, even
Bayh found the CIA had “improper access” to the Senate files.
Jones, who said – improbably – that he doesn’t remember seeing the
warning message at login, expressed exasperation with Bayh’s defense.
“We went back and forth, months and months, up to the principals level,
where Feinstein’s sitting across the table from Panetta … and they’re
demanding these things happen, and we’re exchanging letters and we’re
saying: ‘OK, we’ve reached agreement.’ It would just be absolutely
ridiculous to think that after all those months of negotiations saying
the CIA wouldn’t have access to our computers that we would go in there
and every time we log on we’d just erase the decision that was made
between the director of the Central Intelligence Agency and the chair
and the vice-chair of the Senate intelligence committee.”
Unusually, Bayh’s panel was mostly anonymous. It had five members.
The only other named member was Bob Bauer, the former White House
counsel who had vouchsafed for the CIA no longer removing torture
documents after it was caught taking 900 of them from the Senate in
2010. The other three, CIA officials, were never revealed, not even to
the Senate. It is unknown if they played any role in the torture
program; the CIA did not answer that question when the Guardian asked.
“The information released with regard to this matter was
extraordinary. Nonetheless, some information was appropriately redacted
or withheld,” said the CIA’s Trapani, citing a legal provision that affords the CIA leverage to withhold its officials’ identity.
Bayh has won the Democratic nomination for Senate in Indiana and is
currently running to reclaim his old seat. He did not respond to a
request for comment.
“Regarding the CIA’s search of Senate computer files and their going
into the emails of Senate staff, I don’t know what to say,” said former
Senate intelligence committee chairman Jay Rockefeller.
“You either have oversight and separation of powers with the checks
and balances that come with that, or you don’t. It’s amazing that, once
again, no one at the CIA was held accountable.”
Feinstein told the Guardian that she is not currently inclined to
“rehash every interaction” in the years-long fight over her report.
Instead, she pointed to the CIA’s response as an inadvertent testimony
to its rigor.
“While the report has been relentlessly attacked by the CIA and
former agency officials, no factual errors have been found,” she said.
“Continued efforts to obfuscate the report’s findings and justify a
very dark chapter in our nation’s history do not change the facts, which
stand without correction. By contrast, the CIA itself has acknowledged
numerous factual errors, not only in its representations about the
program but in its 2013 response to the report.”
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Daniel Jones: the Senate staffer spied on by the CIA
As consuming as the rear-guard defense of the torture report was,
Feinstein, no longer in possession of a gavel, pivoted to legislating
the lesson that motivated it. In June 2015, by a wide bipartisan margin
of 78 to 21, Feinstein and John McCain successfully passed an amendment
to the annual defense authorization bill prohibiting the CIA from
engaging in interrogations more brutal than an army field manual
authorized. Obama signed the bill, giving the force of law to his 2009
executive order ending torture.
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“Implementing all of the reforms needed to
address the problems the report exposed is most important to me,”
Feinstein told the Guardian, “and I am continually looking at ways to do
that.”
In December 2015, Jones left the Senate. Feinstein read a tribute to Jones into the record. He joined a Washington consulting firm led by Tom Daschle, Reid’s predecessor as Senate Democratic leader, and started a firm, the Penn Quarter Group, to advise businesses and nonprofits on research and investigations.
“It was obvious I needed to leave the committee,” Jones said. While
he said senators encouraged him to push back against torture in public,
“I needed a break. It’s hard to describe how much of my life…” Jones
trailed off.
“I was gone from the world for a number of years. It’s a bit of an adjustment to being a normal person.”
Rockefeller, the former senator and intelligence committee chairman
who hired Jones in late 2006, said: “We were lucky to have him leading
our investigations. He and others devoted so much of their lives to
making sure this Senate study got done – and was done right.”
“Dan and his team worked under considerable pressure for more than
seven years to complete the full 6,700-page classified report on the CIA
program,” added Levin.
“He and his colleagues always comported themselves in a professional
manner, were diligent, and maintained the highest of ethical standards
throughout this ordeal, despite all of the challenges they faced.”
Jones has regrets about the way the declassified report turned out.
Most prominently, Jones wishes he had gotten declassified the nearly
100-page table of contents for the full 6,700-page torture report, so
readers could understand from the headings and subheadings just what the
full contours of the torture was: “It has an incident on a particular
day of someone’s detention, and there might be 10 pages on it. Or there
might be 50 pages on it. It just shows the level of detail and how these
500 pages is just scratching the surface.”
Still, Jones considers the inquiry a success, one he attributes to
the senators who took real political risks to back him and his team
against the CIA.
“For those who worry that Congress is only dysfunctional, this is exhibit A to the contrary,” he said.
“This was a serious and high-stakes battle between two branches of
government. And the legislative branch, in my view, ultimately won. I
think our founding fathers would be very proud of Senator Feinstein and
the others who worked to get this investigation completed and released.”
As the torture report receded into memory, Donald Trump won the
Republican nomination, and presented an enthusiasm for torture
uninterested in grappling with any critique around its immorality or
ineffectiveness. Trump has pledged to bring back waterboarding “and a
hell of a lot worse”.
The anti-torture law Feinstein and McCain passed is one impediment to
CIA torture. But before 9/11, US laws were unequivocally against
torture as well, and the adoption of torture arose due to political will
driving creative lawyering. Brennan in April this year said he would
refuse an order to bring back waterboarding, and in July said he would
have to be fired rather than implement it. But he indicated that his
departure would not necessarily be an impediment to a return to torture.
“If a president were to order the agency to carry out waterboarding
or something else, it’ll be up to the director of CIA and others within
CIA to decide whether or not that, that direction and order is something
that they can carry out in good conscience,” he told the Brookings Institution.
The CIA’s clash with the Senate committee has faded. So has Brennan’s
summer 2014 contrition, delivered to Feinstein, about spying on Jones
and the committee staff. Brennan’s ire at the torture report has not.
On 9 February 2016, Brennan had a heated exchange
with Wyden, who asked about the network search during an unrelated
committee hearing. Brennan defended the agency’s actions and again
implied that Jones had himself hacked the CIA: “Separation of powers
between the executive and legislative branches, Senator, goes both
ways.”
February 2016: CIA director John Brennan refuses to admit CIA unauthorized search of Senate files was improper
Speaking on 19 July to a friendly audience, the Intelligence and National Security Alliance, Brennan went further:
“When I look at the Senate’s report on the detention interrogation
program, it makes my blood boil, because although there’s a lot of
things in there that were accurate, it really just focused on the
shortcomings of the agency during that period in time.”
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He
continued: “If it was done in a more objective, nonpartisan and fair
fashion, it would have put those shortcomings in better context. I
fervently believe there was no agency more responsible for preventing a
recurrence of 9/11 than the CIA. Unfortunately, that report I think
misrepresented the totality of the worth of that program.”
Brennan has told colleagues that he wishes to remain CIA director under Hillary Clinton. In August, Morell published a New York Times op-ed excoriating Trump and endorsing Clinton,
which intelligence observers understood as an audition to run Langley.
For Jones, their apparent eagerness to lead the CIA is a reminder of a
lack of accountability for torture and what he calls a “failed coverup”
by CIA officials, aided by both the Bush and Obama administrations.
“Both Morell and Brennan are unfit to be CIA directors based off
their response to the report, the way they responded to the Senate, how
they view oversight. Under Brennan and Morell, the CIA is defending
rectal rehydration as a ‘well-acknowledged medical technique’ – nothing
to see here,” he said.
Wyden, speaking to the Guardian, said: “I’m exceptionally troubled by
Director Brennan’s extraordinary efforts to resist vigorous
congressional oversight. I certainly do not have confidence in the
director.”
Obama has retained Brennan without a word of public criticism. He has
kept his job despite the clash with his Senate overseers, just as CIA
officials involved in the torture program and its misrepresentation to
Congress, the Bush and Obama administrations, and the public still work
at Langley.
“People who played a significant role in this program, who are in the
report, continue to play significant roles in sensitive programs at the
agency,” said Jones.
Carle, the former CIA officer and torture critic, disagrees that the
agency needed to fire officials involved in torture to hold them
accountable.
“I do know a number of officers whose careers were certainly
impacted, if not derailed, as the result of all this stuff,” he said.
Speaking of Brennan’s reaction to the Senate report, Carle continued:
“I know John. This was his least impressive moment. I and colleagues
have been somewhat mystified that such an intelligent, subtle and
open-minded man, on this point, reacted like Jose Rodriguez,” the
retired CIA official and torture advocate whose destruction of
videotaped interrogations began the Senate inquiry.
Udall, who had called for Brennan’s job in 2014, told the Guardian
that he was “not aware that there has been accountability for what
Director Brennan calls CIA’s ‘bad mistakes’.” But, he said, the CIA as a
whole ought not to bear the blame for torture.
“We shouldn’t ascribe the bad behavior of some to all the employees of the CIA or of the intelligence community,” Udall said.
“The CIA writ large wasn’t responsible for developing, implementing
and misrepresenting the truth about the CIA’s detention and
interrogation program. In fact, a small number of CIA officers were
largely responsible. It is unfortunate that the refusal of the CIA’s
leadership to pursue accountability and tell the truth continues to tar
the agency as a whole.”
Obama is more instinctively skeptical of the intelligence agencies
than his potential successors, but the president who banned torture
helped CIA officials implicated in torture endure at the agency. Obama’s
deep relationship with Brennan and his early commitment not to “look
backward” had profound consequences that will outlast his presidency.
“They avoided all the necessary reforms that have to happen at the CIA,” Jones said.
“To me, it’s a huge lost opportunity. Here’s an administration that
came in and did all the right things within a few days, shutting down
the program. But they didn’t want the independent commission. They said
the Senate intelligence committee was the right place to do this. And to
me, we were just never given a fair airing. No one from the White House
would be briefed by us. They were briefed by the CIA.”
George Bush: 'The United States does not torture'
Delivering a speech on the ‘war on terror’ on 6 September 2006. Photograph: MCT via Getty Images
Udall agreed: “It is incumbent on the next administration to
acknowledge these mistakes and institute the necessary reforms to
restore the CIA’s reputation for integrity and analytical rigor.”
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Carle
is a rare former CIA official willing to praise the Senate torture
report. “It captures exactly – exactly – the culture, reality,
conversations, pressures, silences, actions, doubts, arguments that I
lived. Absolutely, completely accurate.”
Asked if torture has left the CIA damaged, Carle said: “The CIA
exists to go to the limit of what is acceptable. That’s part of what
defines our raison d’être. That said, I think we did lasting harm to
ourselves as an institution and as a country.”
The Senate investigation Feinstein led and Jones conducted into CIA
torture is believed to be the largest in the legislative body’s 227-year
history. In May 2016, the CIA inspector general’s office destroyed its
only copy of the classified torture report. The agency, Yahoo reported,
claims the destruction was accidental and that a copy of the report is
held elsewhere at Langley. Referring to the ongoing transparency
lawsuit, CIA spokesman Trapani said the agency will retain a copy
“pending the final result of the litigation”.
Classified copies of the report, as well as the printed portions of
the Panetta Review which Jones took in the fateful summer of 2013,
remained in the Senate committee’s safe as of December 2015.
“It is my firm believe that the report will stand the test of time,”
Feinstein told the Guardian, “and I am hopeful future administrations
take the opportunity to learn from its conclusions.”
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