"Corroded to its core": Why the results of the Senate torture report are even worse than we thought

Georgetown University Law School's David Cole tells Salon how the "torture report" missed the whole ugly picture

Published March 6, 2015 1:30PM (EST)

  (NBC News)
(NBC News)

You remember the summary of the U.S. Senate Select Committee on Intelligence's (SSCI) so-called torture report that was released late last year, I'm sure. You remember the horror stories — the sexual assaults, the beatings, the marathon sessions of sleep deprivation, the stress positions and, of course, the waterboardings. You probably also remember the all-out media blitz unleashed by those implicated, directly or otherwise, in the summary report and its catalog of war crimes. And you no doubt remember how these same people issued a voluminous number of passionate denials that what they did was torture, too.

What you probably don't know, because only a few media outlets deigned to pay it much attention, is that there have been more previously classified torture-related documents released since. And what you probably won't be surprised to hear is that these "new" documents strongly suggest that the architects and perpetrators of the United States' global torture regime — the ones who insisted they did not torture — turn out not to have quite the recall capacities one would hope. Because, as Georgetown University law professor David Cole outlined recently in a post for Just Security, sometime between then and now, these folks apparently forgot exactly what the definition of torture was.

Recently, Salon spoke over the phone with Cole to talk about these new documents and their larger implications. Our discussion also touches on Cole's qualified criticisms of the SSCI report, as well as how accountability for these crimes — if not actual justice — may one day look. This interview has been edited for clarity and length.

Before we get into the new material, could you tell me a little bit about why you've been critical, to some degree, of the SSCI report?

There's two parts to the report. The first is the chronology, which is a very careful laying out of exactly how the CIA went about putting the torture program into practice. I think it's an invaluable part of the long-term accountability project because it really gives us details that we just did not have before about just how incompetent and abusive the program was.

The second big chunk of the report really consists of two things: one, a claim that the CIA did not, in fact, obtain any useful information that contributed to its capturing of terrorists or disrupting of plots, and secondly, that it repeatedly lied by claiming that it got useful information that helped it capture terrorists and disrupt plots — lying to Congress, lying to the White House, lying to the public, lying to the DOJ. That's the part that got the most attention. It was the first finding, for example, of the report, that the tactics were ineffective.

What was it about that conclusion you found questionable?

I think that was a mistake for a number of reasons. One, when you actually weigh side-by-side the CIA's response with respect to those 20 incidents and the SSCI's account of those 20 incidents, the CIA makes a plausible claim that in many of those instances, it did actually get useful information from detainees after they were subjected to the EITs [enhanced interrogation techniques]. Two, it's really hard, at the end of the day, to adjudicate between the SSCI's claims and the CIA's claims on that without access to the underlying documents, which, of course, the public doesn't have.

I think even if you had access to those documents it would be difficult to adjudicate because everybody's looking backwards. It's very hard to reconstruct what was actually going on in real time, so essentially what they're doing is connecting the dots after the fact. It might well be that a piece of information appears at one time through techniques other than EITs and the same piece of information appears from a detainee after he's subject to EITs, but it's only when it appears at that point in time that it actually connects up with other pieces of information in a way that actually allows them to capture somebody.

Do you think the report reveals anything about the true effectiveness of torture?

There's a certain inherent difficulty of assessing the quote-unquote "efficacy" of these tactics. By focusing on that, you miss the real reason why torture is prohibited, which is not that it never gets useful information but that it's immoral. It's illegal and immoral and prohibited under all circumstances by the Convention Against Torture. The nations of the world did not do that because they concluded that torture doesn't get useful information. By entering into that debate, I think you miss the more important reason why torture is wrong.

By entering into that debate, you also let off the hook other individuals who were just as culpable as the CIA in the torture program, namely the White House and Justice Department officials who authorized the CIA to use torture at the outset and then repeatedly thereafter when the CIA kept coming back and asking whether they really meant to authorize them. It's misleading, both in terms of the normative reason why torture is wrong and it sort of paints the CIA as the bad apple here when I think the wrong was shared by many other people who were ultimately more powerful and more difficult to hold accountable.

So this wasn't just the CIA doing its own thing — you describe it as a "rogue administration." Why do you call it that? What does that mean?

My understanding of these documents — which are on the ciasavedlives.com website, which I'm not sure anybody actually looked at — were declassified at the request of the former director of the CIA, George Tenet, in December as a response to the Senate Committee report. He perceived that by declassifying a host of previously secret CIA memos, he could demonstrate that, as the website puts it, the CIA's tactics were legal and authorized. The intention was that these documents would show that the CIA was not a rogue agency.

But that wasn't what you saw in the documents.  

I think what the documents actually show is that high-level White House officials and lawyers repeatedly authorized the CIA to engage in these torture tactics, that they share responsibility with the CIA. It doesn't exculpate the CIA but it inculpates many others, including Justice Department lawyers who repeatedly authorized the program, the legal advisers to the National Security adviser, Dick Cheney's legal adviser, and many Cabinet-level officials like the vice president, Condoleezza Rice, and John Ashcroft.

The CIA all knew that what was going on here was illegal, inhumane, cruel, degrading ... and they couldn't quite believe that they'd been given the OK. Every time the administration made a statement that suggested they might be avoiding the use of torture, the CIA comes running back to the DOJ saying, wait a minute! I thought you said we could do this! And the DOJ says, oh, yeah, don't worry about what we said in public. To me, it paints a much broader picture of wrongdoing on the part of a wide variety of actors. If the goal of this whole enterprise is accountability, it's important to paint that broader picture of wrongdoing.

How much do you accept the excuse that has been given since? How much do you think the circumstances of the times actually justified what went on?

I don't underestimate the amounts of fear and pressure under which these people were operating. I wasn't in there, but I understand that there was a tremendous amount of fear that another attack could happen and we had to do everything we could. In that sense, I think these methods were adopted by people who were trying to keep us safe. They weren't adopting these methods to be brutal for the sake of being brutal, they were adopting these methods because they thought they would help get information and I think they believed that they were, in fact, getting information. There's good faith in that sense. Nobody's acting out of their self-interest or because they're sadists.

Look, so they say, we'd like to waterboard but there's a prohibition on torture. Is waterboarding inconsistent with that? And at first Condi Rice says yes, subject to the Justice Department saying yes, and then the Justice Department says yes. They say yes on the theory that it's not torture. Then, the president, on Torture Victims Day, makes a speech in which he says we don't torture. What does the CIA do? They go running back to the White House saying, We thought you said we could do this! If they had believed initially that what they were doing was not torture, it wouldn't have bothered them that President Bush was saying that we don't torture. The very fact that they went running back for the reaffirmation is a case that they knew it was torture. They had to know that these tactics — which we had treated as torture when other countries had used them in the past — were, in fact, torture.

How should we be approaching this process of accountability?

I think in order to understand what went wrong, you have to look at the full scope of the problem. You can't look at one broken part of a machine that is corroded to its core; you can't fix that one little cylinder and think you've fixed the motor. I think it's just too easy to say, oh, the CIA pulled the wool over everyone's eyes and they're the bad guys, because that doesn't confront how not a single person who had authority — senior lawyers and Cabinet-level officials — said no when asked whether people could be waterboarded.

That suggests that it's a much broader problem, and until we recognize that in a formal, official way, I don't think we've had meaningful accountability.

What does accountability look like to you?

I've long been of the view that accountability does not require that Dick Cheney be prosecuted criminally. I think there are a variety of ways in which accountability be achieved. One is an official reckoning with what went wrong. Other countries have, in fact, pursued accountability in precisely that way; when the UK used torture tactics against IRA suspects in the early days of the Troubles, they conducted a formal inquiry and they wrote a very damning report laying out what went wrong and finding that it was both illegal and counterproductive. That was important in changing the culture in the UK.

Nobody went to jail, but that's an official form of accountability -- the closest we've gotten to any kind of official accountability is the Senate Committee report, and I think they deserve a huge amount of credit for undertaking it. Obama didn't want any inquiry. If that's the kind of accountability that we have, I think it's important that the accounting be complete, and not have the effect of minimizing blame for people who are just as culpable as the CIA but, in fact, apportioning blame fairly to all the actors who were a part of the wrongdoing.

Do you think the report’s findings reveal anything about our national values or the values of our administration?

The other thing about the wrongdoing being as extensive as it was is that it raises much deeper questions about what our nation's commitment really is to the prohibition against torture. It's one thing if an agency like the CIA, whose relation to the law has always been somewhat murky, has engaged in illegal conduct — that's one thing. To say that it wasn't just the CIA but the attorney general, the nation's highest legal officer; it was the president and the vice president; it was senior lawyers, whose job it is to say no when policy officials ask to engage in illegal conduct ... when everybody went along, that's a more challenging problem.

We need to confront the truth, if we're going to move beyond this.

By Elias Isquith

Elias Isquith is a former Salon staff writer.

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