The Torture Problem Is Going to Get Worse

Obama ruled out most prosecutions of CIA officers who participated in torture. But there are plenty of people left to investigate, John Sifton writes, and plenty of creative ways to do it.

In releasing several Bush-era memos from the Justice Department’s Office of Legal Counsel approving the CIA’s interrogation program including torture on Thursday, President Barack Obama announced that the administration would not investigate CIA personnel who relied on the memos while taking part in the program.

“In releasing these memos,” an administration statement read, “it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” In a separate statement, Attorney General Eric Holder added: “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.”

The CIA psychologist who crafted the torture program and got rich doing so—what better witness could there be for a congressional investigation?

Like several already-released general memos, yesterday’s memos contain deeply flawed legal analysis interpreting the federal torture statute—“malpractice bad” as one former government attorney told me. The newly released memos are especially warped because they apply the incorrect legal reasoning to actual techniques.

The memos include detailed instructions, in cold clinical terms, of how to hit detainees, throw them into walls, confine detainees in small boxes, deprive them of sleep, and waterboard them. And the instructions are saturated with the twisted mix of force and precaution: You may slap, but only in a specific way; you may throw the detainee into a wall, but you have to hold his head just so to avoid whiplash; you may put an insect in a box with a detainee, but if it’s a stinging insect, you inform the detainee that the sting will not cause severe pain or death. And medical personnel must be present at all times to ensure the overall safety of the detainees.

One of the later memos, the memo written in May 2005 by Steven Bradbury, who succeeded Jay Bybee as head of the OLC, contains an especially disturbing detail: Deep in the document (footnote 28), Bradbury reveals that the interrogation of CIA detainee Abu Zubaydah produced a substantial amount of false intelligence, yet at one point CIA headquarters ordered interrogators to waterboard Zubaydah “one more time,” even though interrogators had decided he was now “compliant.” Part of the footnote is redacted, but the context seems to suggest that the additional torture produced false or useless intelligence.

Now the administration wants CIA officers who implemented these compassionately implemented torture techniques to know that they won’t be investigated and that the administration will defend them if they are investigated.

Dennis Blair, the Director of National Intelligence, went even further, stating, “We will absolutely defend those who relied on these memos and those guidelines.” Blair’s statement attempts to portray the interrogation methods as understandable, arguing that the techniques were conducted in the aftermath of the September 11 attacks, whereas while “read on a bright, sunny, safe day in April 2009, [they] appear graphic and disturbing.” (Blair is apparently unaware of his inadvertent allusion to the opening sentence of George Orwell’s 1984:“ It was a bright cold day in April, and the clocks were striking thirteen.” )

The president states that he respects “the strong views and emotions that these issues evoke.” He eludes to the “dark and painful chapter in our history,” but concludes that “at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past.” His statement speaks of the country’s “ability to right its course in concert with our core values, and to move forward with confidence.” And it concludes with a vacuous call to unity through forgetfulness: “We must resist the forces that divide us, and instead come together on behalf of our common future.” Crafted to sound like Lincoln, Obama’s words in the context of CIA torture ring as hollow as ping-pong balls.

Outrage aside, a major question is still raised: Do the statements actually change anything? Putting aside the dull rhetoric, all the statements actually say is that persons who relied on legal advice should not be prosecuted. In several respects, that point is hardly earth-shattering.

First, it should be recalled that much of the Obama position is already federal law: An amendment in the Detainee Treatment Act of 2005—crafted as a compromise between Vice President Dick Cheney and Sen. John McCain of all people—already creates a partial legal defense to prosecution of CIA officers who engaged in illegal acts while acting in reliance on advice of counsel that those acts were “legal.” (President Obama, as a senator, voted for that legislation.) If the Obama Department of Justice prosecuted lower-level CIA officers, many would likely invoke that defense, and many prosecutions could be derailed.

Second, it should be noted that the statements’ language, like the earlier legislation, really only applies to persons who relied reasonably and in good faith. The Obama administration has said nothing about people who initiated and crafted the program, the lawyers who drafted the memos, officials who solicited the memos, White House officials who instructed lawyers how to write the memos, and CIA officers who provided erroneous facts and analysis used in the memos’ arguments. Nor do the statements say anything about people who may have used the memos in bad faith. If prosecutors can show that a CIA officer or official, or anyone else, knew that the acts were illegal and that the memos were just incorrect legal cover, those cases can be prosecuted.

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Third, the statements only refer to prosecution. Nothing specific in the statements precludes other forms of investigation, such as congressional hearings or special commissions. Congress can still rake people over the coals: whether former White House officials or CIA officials. And attorneys who were involved in writing the memos can be investigated by bar committees and disbarred.

Fourth, not all of the torture was conducted in reliance on the legal memos. The August 1, 2002, memorandum by former OLC head Jay Bybee, for instance, focusing on the case of the first CIA detainee Abu Zubaydah, refers to aggressive interrogations already under way. This point has already appeared in reporting by New Yorker journalist Jane Mayer, in an International Committee of the Red Cross report issued last week, and within a Department of Justice Inspector General report from late 2008. In short, CIA was already torturing Abu Zubaydah before the August 2002 memo; all the memo did was provide a more regulated system for the abuse. And it should also be noted before August 2002, the CIA rendition program was already under way, in which detainees arrested in other countries were being transferred to countries like Egypt to be tortured by local authorities, with CIA standing by. Prosecutions for that program also remain possible.

The fact is that few people are clamoring for rank-and-file CIA officers to be prosecuted. The idea endorsed by most advocates for accountability is that the architects and overseers of the program be investigated. That includes White House leaders, including President Bush himself and the “principals group” that approved the program—Dick Cheney, Condoleezza Rice, Donald Rumsfeld, John Ashcroft, Colin Powell—as well as senior White House attorneys who played a part in drafting the memos, including Cheney’s senior aide David Addington, OLC lawyers John Yoo, Jay Bybee, and Steven Bradbury. It also includes senior CIA leadership who played a role in crafting the program and soliciting an after-the-fact legal memo to justify the techniques: George Tenet and senior executive officers such as former Deputy Director John McLaughlin, former Executive Director Alvin (“Buzzy”) Krongard, former deputy director of operations James Pavitt, and former directors of the Counterterrorism Center like Jose Rodriquez.

Other relevant CIA senior leaders include executive officers in the Operations Directorate who have been promoted and currently run day-to-day CIA operations, including Pavitt’s deputy Stephen Kappes, who serves as the deputy director of CIA, and Kappes’ deputy Michael Sulick, who runs the Operations Directorate. It would also include John Rizzo, the CIA Acting General Counsel in 2002, who remains the Acting General Counsel today.

One thing to add: The memos also spell out the central involvement of a certain CIA contractor—a psychologist from a military agency who played a major role in coming up with the techniques that were used in the CIA program. The psychologist is not named in the memos but his identity has been reported elsewhere: James E. Mitchell.

Mitchell, who does not appear to have a psychology license and has not conducted any relevant academic research on the methods he advocated, played a central role in convincing the CIA that the abusive techniques would be effective. And he did quite well for himself as a CIA contractor: Since 2006, he has built his family a large luxury house on lakefront property north of Tampa, Florida; he also bought a Lexus SUV and his wife a convertible BMW. The CIA psychologist who crafted the torture program and got rich doing so—what better witness could there be for a congressional investigation?

The best hope for accountability now lies with the Congress. Possibly public outrage about the memos may force Congress to hold more rigorous hearings, and the hearings may prompt further outrage that could force Obama to appoint a special prosecutor—again, not to focus on the rank-and-file but on the officials who crafted the program. An added political benefit for Obama would be the political cover: He can claim he tried to move on but the public furor forced him to appoint the prosecutor.

The bottom line is that the scandal is not going away. When the high-value detainees who were in the CIA program are moved into civilian courts in the United States, likely sometime later this year, further details about the abuse will emerge. President Obama’s statement seeking to dispel the issue has not put it to rest.

John Sifton is a private investigator and attorney based in New York City. His firm, One World Research, carries out research for law firms and human-rights groups, including in South Asia, the Middle East and North Africa. He has conducted extensive investigations into the CIA interrogation and detention program.