The Lawyer and The Caterpillar

In "1984," George Orwell's classic novel on the evils of totalitarianism, the agents of Big Brother break down the will of resisters by throwing them in a dreaded torture chamber known as Room 101. The idea behind Room 101 is to expose interrogation subjects to whatever they fear most. The protagonist in the novel, Winston Smith, fears rats. Confronted with a cage full of rats when he enters Room 101, Smith breaks down and betrays his lover, Julia, as an enemy of the state. (Article continued below...)

In the real world of a democracy facing the threat of terrorism, torture is a much more complicated business. After 9/11 the CIA was under relentless pressure to break terror suspects in time to head off a second attack. In March 2002, the CIA captured Abu Zubaydah, believed then to be a high-level Qaeda mastermind. Abu Zubaydah apparently feared insects. Someone at the CIA came up with the idea—right out of "1984," it would seem—of putting him in a small, dark box and letting an insect crawl on him. But since this was America, and not Orwell's fantasy police state, the CIA first had to get permission from a lawyer at the Department of Justice. Parsing statutes against torture, the lawyer (Jay Bybee, then chief of Justice's Office of Legal Counsel) ruled that Abu Zubaydah's interrogators could not tell the suspect that the insect was venomous because, under the law, prisoners could not be threatened with imminent death. However, Abu Zubaydah could be placed in a "confinement box" with a harmless insect as long as he was told nothing about it. The CIA had proposed using a caterpillar.

In the end, nothing came of it. This particular method of "enhanced interrogation" was never used on Abu Zubaydah. He was, however, interrogated in other severe ways—"waterboarded" (simulated drowning), deprived of sleep for days, slammed into walls--methods discussed and approved at the highest levels of the White House. The catch is that Abu Zubaydah was not, in fact, a top Osama bin Laden lieutenant or even a senior member of Al Qaeda; he arranged logistics at the Afghan training camps. According to the FBI, which initially questioned him, most of the useful intelligence he shared came out before he was roughed up.

The real world is never as neat as the imagined one. Political campaigns, like futuristic parables, are a kind of make-believe. Running for president, Barack Obama was able to denounce the torture tactics the Bush administration used and to declare, "If crimes have been committed, they should be investigated." But after his election, Obama said he wanted his administration to look forward, not backward. If only it were so simple. Last week Obama--over the CIA's bitter opposition—authorized the release of Justice Department documents spelling out in great detail the enhanced interrogation techniques used by the CIA and permitted by Justice Department lawyers. That decision alone was one of the hardest the new president has had to face, say his aides.

But the Obama administration is not off the hook. Though administration officials declared that CIA interrogators who followed Justice's legal guidance on torture would not be prosecuted, that does not mean the inquiries are over. Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. has discussed naming a senior prosecutor or outside counsel to review whether CIA interrogators exceeded legal boundaries--and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Some Justice officials are deeply troubled by reports of detainee treatment and believe they may suggest criminal misconduct, these sources say. Even if prosecutions prove too difficult to bring, an outside counsel's report could be made public. For his part, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, is still pushing for a "truth commission." In a democracy, the wheels of justice grind on--and the president, for good reason under the rule of law, does not have the power to stop them.

The debate about releasing the memos was forced by a Freedom of Information Act lawsuit brought by the American Civil Liberties Union. More than a month ago, Holder and White House counsel Gregory Craig recommended releasing the memos, partly on the grounds that the Obama administration wasn't using the techniques anymore and should not be put in the position of covering up for its predecessors. President Obama seemed onboard. But several administration officials who wished to remain anonymous discussing internal deliberations say the reaction at the CIA was indignant. Exposing some of the nation's most sensitive secrets would tear up the country's most prestigious intelligence service, its defenders argued. New CIA Director Leon Panetta was put on the spot. A former congressman and White House chief of staff in the Clinton administration, Panetta came with few ties to the intelligence community. Panetta needed to show he would stand up for his troops, the officials say, so he did, protesting that releasing the documents would destroy morale.

After several intense cabinet meetings, Obama appeared to back down and go along with a Panetta proposal to heavily "redact"—black out—all references to specific interrogation techniques, say the administration sources. But this would make the release meaningless, argued others, and Obama began to swing back again. Panetta had one ally, John Brennan, a former agency official who is now Obama's chief counterterrorism adviser. But Adm. Dennis Blair, the national intelligence director, backed a more complete release, and so did Secretary of Defense Robert Gates, a Bush holdover (and former CIA director). In the end, Obama approved the disclosure of the documents, along with a strongly worded statement that agency professionals "who acted reasonably and relied upon legal advice from the Depart-ment of Justice" will be held blameless.

"As a practical matter, it's over—nobody is going to get prosecuted," says Robert Bennett, the Washington lawyer whose clients include Jose Rodriguez, the former chief of the CIA's clandestine service, who has been under investigation for his November 2005 decision to destroy 92 videotapes showing the interrogation of Abu Zubaydah. But what if evidence emerges that CIA officials (or contractors, who actually conducted most of the interrogations) went beyond the boundaries that the Justice Department erected? The CIA has consistently denied wrongdoing, but an intriguing footnote to one of the memos says that an internal CIA investigation found that there might have been "unnecessary use of enhanced techniques" against one Qaeda suspect. The memos released last week would be comical if they weren't so tragic about the level of legal hairsplitting. In the case of Abu Zubaydah, the Justice Department lawyer instructed that as long as the CIA did not tell him anything about the insect, and the insect was non-stinging, "the insect's placement in the box would not constitute a threat of severe physical pain or suffering to a reasonable person in his position." Just how a lawyer sitting in his office in Washington, D.C., would know what a "reasonable person in his position" might think is unclear.

Especially if that person, as in Abu Zubaydah's case, had been kept awake with manacles for up to a week at a time, slammed into a wall (but not one that was rock-solid, and no more than 20 or 30 times) and repeatedly doused with cold water (but not colder than 41 degrees!). "In practice, these methods were nothing short of brutal," says Jameel Jaffer, a lawyer for the ACLU. It is likely that the public will continue to learn more as lawsuits and congressional or administration investigations go forward.

It is not hard to imagine the impact of all this scrutiny and exposure on the CIA. A longtime CIA official who recently retired ruminated, not for attribution, about the low state of morale at the agency. Old intelligence hands are made weary and cynical by a familiar cycle: a crisis happens (in this case, September 11); the CIA is ordered to take the gloves off; agency officials protest that they will be blamed if anything goes wrong; they are reassured by the politicians and lawyers that they will be protected. But things go wrong (as they usually do in the murky world of covert operations), and the agency is hung out to dry. In a democracy, that's the way it really works. No one should be surprised if, after the next terrorist attack, the intelligence community is blamed for being risk-averse. Still, the CIA and the Justice Department have to obey the rules.