Does it make everyone feel better to forget the past and just hold the CIA responsible for torturous interrogations at a time when America — from the White House on down — feared another attack after September 11, 2001? Does it matter that the military held more detainees, applied similarly harsh techniques and did it over a longer period of time?
Let us take a hard look at what this so-called war on terrorism has meant. But the flawed investigation by the Senate Select Committee on Intelligence is not the place to start.
Those investigators dealt only with CIA documents and did not question senior CIA officials and agency personnel involved in the interrogation programme. In addition, the panel never interviewed other officials, including those at the White House who, the panel concluded, were being misled by the agency. So, naturally, there is a selective use of information. In its defence, the panel said it could not talk to key CIA participants because of federal criminal inquiries. To fill that gap, it had access to 100 interviews by the CIA inspector general (IG) from his 2004 inquiry. That included present and former agency employees associated with the programme.
The IG questioning did not deal with interactions with the White House or other agencies. Ironically, however, the CIA IG concluded that the enhanced interrogation programme “provided intelligence that has enabled the identification and apprehension of terrorists, [and] warned of terrorist plots planned for the United States and around the world”.
That is almost opposite to one of the Senate panel’s conclusions.
I believe a thorough inquiry will show that senior FBI, CIA and Pentagon officials knew in September 2001 that gathering intelligence about an expected next strike by Al Qaida would require harsh interrogations. Six days after 9/11, president George W. Bush signed a secret covert action memo that gave the CIA unprecedented authority to “undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to US persons and interests or who are planning terrorist activities”.
It left the agency to decide who fit the bill and how to treat them.
On October 21, 2001, I wrote in the Washington Post that FBI agents were frustrated by not getting answers from more than 150 jailed alleged Al Qaida network members and that some were saying “traditional civil liberties may have to be cast aside if they are to extract information about the September 11 attacks and terrorist plans”. The FBI had sent two agents to Israel to learn how its interrogators dealt with Arab suspects, and there was talk of “extraditing the suspects to allied countries where security services sometimes employ threats to family members or resort to torture”.
As early as January 2002, National Security Council principals — aware of “potential charges of torture” — began debating whether protections of the Geneva Conventions should apply to captured Al Qaida or Taliban fighters, according to the Senate report.
CIA senior officials were under pressure, sensitive to charges that it was their failure to “connect the dots” that had led to the 9/11 attack. The CIA position was that its ability to gather critical information required relief from the Geneva Conventions’ limitations. The agency had already begun looking at other countries where it could hold its detainees so those captured would not be covered by US law. Agency officials were also concerned about a US statute that barred US citizens from committing torture outside the country.
The Pentagon also wanted clarification on how its interrogators could act, with detainees being held in Afghanistan and who would soon go to US Navy facilities at Guantanamo Bay, Cuba, where it was believed US law also would not apply.
On February 7, 2002, Bush signed a memorandum stating that the Third Geneva Convention did not apply to the conflict with Al Qaida. It also concluded that Taliban detainees were, along with Al Qaida members, unlawful combatants, meaning they did not qualify as prisoners of war and did not have Geneva legal protections.
A line in the Bush order said it would be “policy” for US armed forces “to treat detainees humanely” under certain circumstances, but by design it made no reference to the CIA. Within months, the US military and CIA began using enhanced interrogation techniques in Afghanistan and at Guantanamo Bay.
It was not new for the CIA, where an interrogation training manual declassified in 1994 outlined various isolation and disorientation procedures, including one similar to waterboarding. Within the US Defence Department, conversations had already begun that December to explore the use of SERE (survival, evasion, resistance and escape) on detainees — training practices that had been used to prepare agents for capture. These included sleep deprivation, stripping and stress positions and in some cases a brief waterboarding session. John Walker Lindh, an American captured in Afghanistan and turned over to the US Army on December 7, 2001, was stripped, bound to a gurney and blindfolded while in custody.
By March 28, 2002, with the capture of Al Qaida logistics chief and recruiter Abu Zubaida, the CIA already was using harsh interrogations that included nudity, sleep deprivation and loud music or noise. By June, it decided it needed additional legal authority — including for waterboarding — to get information from Zubaida. It opened another round of talks with the White House and Justice Department — all meant to make certain that agency officers would not face prosecution.
The ruling it got from Justice was eventually described by former assistant attorney general Jack Goldsmith: “Violent acts aren’t necessarily torture; if you do torture, you probably have a defence; and even if you don’t have a defence, the torture law doesn’t apply if you act under the colour of presidential authority.”
As the Senate Armed Services Committee said in its 2008 report, senior government officials “redefined the law to create the appearance of their legality, and authorised their use against detainees”.
Thirteen years after the fact, there is plenty of blame to spread around inside and outside government for what went on in the name of America’s security.
— Washington Post
