It’s the unavoidable business of media these days to comment as quickly as possible on the story or controversy of the day, or even of the moment. TAI Online has done that with respect to the Senate Torture Report, most notably in Walter Russell Mead’s thoughtful post of December 10, but in some shorter takes of delimited aspects of the subject as well. WRM’s analysis—by showing how democracies by their nature must handle such morally fraught challenges, by linking the Torture Report to other hot-potato issues of recent harvest, and by expressing discomfort for the strong forms of both congealing partisan narratives—is easily the best of the quick responses out there. I associate myself fully with his observations, and with his discomfort.
When eruptions like the release of the Torture Report come upon us, my instinct is to wait before writing anything. Experience has taught me that some problems are genuinely hard and that I, not a journalist either by training or temperament, cannot reliably master them quickly. That handicaps me in the contemporary media races, for by the time I get around to commenting, as I am about to do now, many folks have moved on to the next big thing, or else have burrowed down into the story in such way as to obscure the bigger picture in favor of some curlicue useful for partisan combat—which brings me to my main point: Most commentary on the Torture Report is bereft of the wider context needed to understand both the subject matter and the Report itself as part of that subject matter.
Those who have immersed themselves in the detailed reporting done by the New York Times, the Washington Post, and a few other news sources will know certain key elements of the historical backstory that shaped what came after. Three are critical.
First, we were blindsided by what happened on September 11, 2001, and in its aftermath we were mostly intell-blind about al-Qaeda, a circumstance that led to a welling up of fear and even desperation about the prospect for follow-on attacks of equal or even greater magnitude. Second, in haste was the detainee interrogation job handed to the CIA, and in haste did the CIA try to get arms around its new mandate. And third, less obvious now after all that has happened, there was at the time no set policy on what torture was, which is what allowed some people in the Justice Department, feeling the same fear-induced pressure being experienced elsewhere in the government, to go both elastic and a bit ambiguous on some definitions.
But why? Why were we blindsided by 911? Why did the CIA get the handoff? Why was there no operational consensus about what torture was, or wasn’t, such that we’re still arguing the point even now? The mainstream media has not seriously pursued these questions; it has not peeled back the onion any more than it has bothered to connect the dots between, say, Benghazi 9/11/2012 and the fact that U.S. policy sired a failed state in Libya, enabling that debacle to happen. Instead, in the present case, our collective walking amnesia has fixed on the ghoulish details of some CIA behaviors that went beyond anyone’s definition of acceptable interrogation methods; on subsequent CIA covering up and holding some detainees by mistake; on two USAF psychologists who are being demonized for having inscribed a chapter of sadistic evil into American history and profited to the tune of more than $81 million for having done so; on what the President was told or knew; on what the potential criminal vulnerabilities of those involved might be to so-called international jurisdiction; on the partisan politics involved in the Report’s methodology, content, and timing; on the tradeoff between the value of lustration in making most of the Report public and the dangers to Americans it may generate; and so forth.
All these sidebars are interesting and newsworthy, to be sure, but only by going back to answer these three key questions, and only if we see these three elements of the historical backstory together, can we make sense of the Torture Report and its critics’ rebuttal. Put a bit differently, before we ponder the fate of our national soul in a hyperbolic if evanescent morality play, we should seek an objective account of what the hell actually happened to our government that it managed to behave the way it did. Dick Gregory said it best in 1968: “You should start with the truth before you tamper with it.” Amen.
If I were writing a book instead of a comment, I’d devote at least a chapter to why we were blindsided by 911. In a way I already have—and I did it before 911—in the first of three installments of the Hart-Rudman Commission Report, released on September 15, 1999. (I did not compose that little book on the post-Cold War threat environment, entitled New World Coming, entirely by myself—and I certainly didn’t get my way with regard to the title—but I did write it.) We suffered an institutionalized failure of imagination, especially an imagination of tragedy. We suffered from a Cold War hangover of lazy triumphalism that led our political class to both shrink and ignore the intelligence community and the intelligence community to summon insufficient motivation to revamp itself for a very different kind of threat environment. Some of us knew or suspected all that, and feared the consequences enough to make as big a noise about it as we could, at least two full years before 911.
Governmental institutions are conservative by nature, and the larger and older and more presumably successful they are, they more conservative they tend to be. Only disaster or truly gifted leadership can overcome that conservatism, and we suffered the former. So is the post-Cold War/pre-911 leadership of the CIA responsible for this ur-source of the fear and desperation that led to the behaviors described in the Torture Report? To one extent or another, yes. That includes Bob Gates (1991-93), Jim Woolsey (1993-95), and John Deutsch (1995-96); but above all it includes George Tenet, who had five years before 911 to redirect the Agency to take non-state-actor threats to U.S. security more seriously, and to bulk up the HUMINT assets needed to deal with them even as we drew down the resources spent on reading infrared signatures from old Soviet missile silos. He failed to use that time wisely. It was Tenet, too, whose tenure lasted until 2004, who failed to set up and oversee the interrogation program properly, allowing the excesses beyond the Justice Department elasticity that the Report has so vividly described.
It’s not just the CIA leadership that messed up on this count. So did, for the most part, our military leadership and education system. And so did President Clinton and his civilian NSC national security principals—and that includes Les Aspin, Bill Perry, Bill Cohen, Warren Christopher, Madeleine Albright, Tony Lake, and Sandy Berger. All of these experienced, intelligent, and patriotic individuals had collectively an eight-year shot at turning our great Cold War rig around; they all had the requisite ten acres or more to do the job, and again, to one degree or another, they all failed.
The young Bush 43 Administration in the period between January and September 2001 did not fare any better. The Hart-Rudman rubber-meets-road third report appeared in March 2001, explicitly warning of mass-casualty terrorism and proposing major structural changes to how we handle homeland security. It received a frosty reception from the new Administration. It was dumped into an internal committee, chaired by the Vice-President, whose body language made clear that he intended to find the deepest, darkest dungeon in the Old Executive Office Building to “file” the report. The committee he chaired was supposed to report out on October 1, 2001.
True, the Administration was not totally blind to the threat posed by al-Qaeda, which had of course attacked U.S. targets before, in 1998 and 2000. Warnings popped up in the President’s daily intelligence brief, as we know from the 911 Commission Report. But like its predecessor, the full measure of the danger eluded the Bush Administration, and likes its predecessor it never considered adjusting its national security protocols or shifting resources to achieve a higher sustained level of vigilance.
Finally on this point, the Congressional oversight function with regard to intelligence is also partly to blame. Now it is being claimed that the CIA has long gamed the oversight function, and that claim contains an element of truth. But it wasn’t a hard game to play and win. Seats on the Senate and House Intelligence Committees are prestigious; members get to know stuff their colleagues don’t. Yet the members are well practiced in not knowing too much. I am not in a position to prove it publicly, but Senator Feinstein and other Democrats on the committee responsible for the Torture Report knew a good deal more than they are willing to admit now, and what they did not know they at times chose not to know.
More to this final point, had anyone on those committees wanted to really raise a stink about anything the CIA (or the NSA) was doing, just as Frank Church did many years before and, in his own inimitable but less effective way, Daniel Patrick Moynihan did after him, they could have done so. They didn’t do anything until years after the damage was done and they did not think to release a report until the clock was ticking on their ability to do so. Had the Democrats not lost the Senate in the midterm elections, this Report might not have been issued at all. Diane Feinstein now postures as brave, moral, and forward-looking. It is, however, also possible to see her as a petty, score-settling harridan whose concern for national security takes a backseat to partisan gamesmanship—a stalking horse masquerading as a sacred cow, as Tom Stoppard once described today’s “gotcha” elite press.
What about the second element of the backstory? How did the CIA end up with the interrogation job?
Everyone seems to take for granted now that this was a “natural” CIA assignment of some sort, but it is passing strange that this should be the case. Not to belabor the background with a primer, but for those who have been watching too much crappy, self-righteous fiction on TV and in the movies, the CIA—before 911 at least—was a pretty small organization with a very minor percentage of its budget, personnel, and activity devoted to “operations”—dirty tricks, false-flagging, whacking people, and so forth. The Agency did wander off the reservation back in the day, which is what the Church Committee hearings and subsequent reforms were meant to set right. The vast bulk of CIA activity before and certainly after the mid-1970s concerned what is called collections and analysis, some of which falls under the rubric of (human) spying, but much of which is just fancified library work. As the morning of September 12, 2001 dawned, did the CIA have any significant experience with interrogating Islamist insurgents and terrorists? No. Did it have any experience with interrogating bad guys of any kind? Some; for example in Central America back in the 1980s, but nearly all of those involved in that business—and there were only a few—had long since departed the Agency.
So if the CIA was not the natural place to turn for this work, where was that place? Answer: The Defense Department. DOD has military bases stateside and abroad that included a smattering of prisons and detention centers, which is what any military must have to deal with prisoners of war and small numbers of bad actors among its own ranks. Because all militaries have such facilities, it is someone’s job to create and enforce rules concerning them. There are, actually, many someones who do that sort of thing for the U.S. military. The U.S. military took some prisoners in the 1991 Gulf War, and some interrogations took place according to these rules. These interrogations were conducted by DOD personnel who had been trained to do them, and who were accountable all the while to the JAG (Judge Advocate General) system.
So if there was an institution designed for exactly such a purpose already in place, why was the CIA anointed for the task after 911 instead? Alas, it would take another chapter to really explain all this; but, in brief anyway, what happened is not all that complicated.
Pretty quickly after 911, before any high-profile detainees were even in hand, the White House, aided by the Justice Department, ruled that al-Qaeda prisoners, if there ever were to be any, were not entitled to the protections of the Geneva Conventions. This was entirely proper. If you read the Conventions you will discover that to qualify as prisoners-of-war, combatants must wear uniforms and insignia distinguishing them from civilians (this was originally in part to protect civilians) and they must be part of a command structure such that a superior officer can affect their surrender. Neither requirement fit al-Qaeda; it was a matter of debate whether Taliban fighters in Afghanistan, once that campaign started, were entitled to the protections of the Geneva Conventions—more on that in a moment.
Then, when at an NSC meeting not long after 911 NSC Advisor Condoleezza Rice spoke as though assuming the Defense Department would handle prisoners, Defense Secretary Donald Rumsfeld remonstrated that it would do no such thing. This was not a declared war, the enemy did not deserve treatment under military protocols, and to treat them that way would contradict the President’s determination that these guys were not lawful combatants. Rumsfeld just refused to accept the mandate, and neither the President nor George Tenet nor anyone else successfully pushed back against him. And that, for lack of any other alternative, is how the CIA got stuck with the job.
Note again that the CIA had no experience, no guidelines, no trained personnel, and no facilities in which to undertake detentions and interrogations of the sort anticipated. What it did have was a surplus of pressure and roomfuls of ambient fear. This is the combination that got us the “black sites” in Pakistan, Romania, Poland, and Thailand. This is the combination that got us these two USAF psychologists, who floated to the top of the policy mix less than 48 hours after someone remembered they existed. This is the combination that got us the inexperienced personnel who broke the Justice Department’s elasticized rules, and did so in an environment in which no oversight mechanism had ever existed. This is the combination that caused the CIA to sweep up innocents and on occasion lose count of how many prisoners it was holding, again, because it had no templates or track record for doing such things. Anyone who thinks that an organization can turn on a dime and, under enormous pressure and time constraints, do stuff well for which it was not designed and has had no practice, knows nothing about organizational behavior.
As the Torture Report might have made clearer, the worst of the abuses happened when the program was very young, and it happened to a relatively small number of people. The same was true, in a DOD setting, at Abu Ghraib and—less well known—at a detention facility at Bagram (not the same as the so-called Salt Pit). Such abuses should not have happened under DOD control, or, more understandably perhaps, under CIA control. But in both cases the excesses were not long lasting and they were not, all told, extensive.
And now the third element, the definition of torture. Before 911, the general understanding of torture was that it left a mark, either physical or psychological or both. There was no codified, detailed definition of torture as it applied in interrogations outside the DOD framework, and no defined legal liability concerning it either. In the environment of shock and fear that followed 911, those responsible for national security in all Executive Branch agencies had one overriding responsibility: to prevent another attack. Erring on the side of safety made sense in this regard, as an exceptional case. That explains the Justice Department’s determination that waterboarding, for example, was not torture. It left no permanent mark. Neither did sleep deprivation. Since no one could be sure what interrogation techniques would get the best results, the general inclination was to allow all techniques short of out-and-out maiming people.
We know now that the way waterboarding was sometimes used—to create a series of near-drowning events with at least one key prisoner—went beyond the Justice Department definition of acceptable technique, as did behaviors that killed one prisoner from hypothermia and certainly abused several others. But these were new rules and they were not written in a totally unambiguous way. Torture is now against the law and the 2009 Executive Order requires everyone to follow the Army Field Manual, which, just by the way, puts the entire matter back under military jurisdiction where it belongs. That was not the case after September 11, 2001.
This is not to justify what happened; it is merely to explain how it happened. Start with acute fear, add some guilt for having been imagination-challenged types who had nevertheless been warned, toss new mandates into an institutional vacuum and stir in some vague, newly hatched definitions to boot and, well, what does anyone expect would have happened?
To explain how what happened happened is also not to be taken as shilling for the CIA. CIA shortcomings lay at or near the bottom of nearly every U.S. foreign policy disaster of recent years: The failure to anticipate and foil the 911 attacks; the failure to accurately assess Iraqi weapons-of-mass-destruction stockpiles and programs; the larger failure to understand how Iraqi society would react to foreign occupation; the failure to adequately warn decision-makers against “nation-building” quixitis in Afghanistan (“quixitis” being my term, with apologies to Cervantes, for the painful inflammation of the idealist imagination under the influence of quixotic delusions); and more besides. It also took the CIA and various Executive Branch associates more than a decade to find and dispatch Osama bin Laden, and Ayman al-Zawahiri is still wasting perfectly good oxygen somewhere; how anyone can characterize this record as some sort of triumph continues to amaze me. (Ironically, in the popular mind the CIA is most often held up to scorn for missing the decay and collapse of the Soviet Union—one of the few big deals in relatively recent years that, by any reasonable measure, it actually got right.)
Most conservatives have been intent on bashing not the CIA but the Report; yet one would think that some, at least, would take a moment to reflect on how expanded government mandates, especially when done in secret, can and often do jump the tracks. One would also think that, very much related, conservatives and liberals alike know that the behaviors described in the Report are nothing new in a generic sense. To cite just one example among a great many, note the celebrated Abrams Case of 1918-9, when the victims of the enhanced interrogation techniques of the day (being beaten, in one case to death, with truncheons and chair legs) were immigrants living in the United States. But in our world of un- and under-connected dots, in our world where the effort to seriously integrate relevant context into news narratives has taken an extended Viennese lunch break, no such knowledge is evident.
The Torture Report does not cover all of the legal and moral issues regarding detentions and interrogations that arose after 911. It does not cover what happened at Bagram, mentioned above, for example. Some bad, even deadly, things happened there, and no one has been held accountable for them.
It does not cover the whole legal sleight-of-hand that is Guantànamo Bay. GITMO should more than be shut down; the whole damned place should be given back to Cuba when time comes to fully normalize relations with a post-communist regime, a process suddenly underway as of a few days ago. We have it in the first place from the denouement of the Spanish-American War to help protect the Panama Canal, but since the Canal Zone no longer exists as sovereign U.S. territory, there is no compelling strategic rationale for keeping it. The reason that neither the Bush nor the Obama Administration has been able to shut it down, however, is clear: Congress. The Federal penitentiary system was more than adequate to handle GITMO’s rather small number of inmates even at their most numerous, but thanks to at best para-rational political cowardice in Congress, the problem and the attendant embarrassment persist. No wonder Senator Feinstein et al. decided not to have a go at GITMO.
Above all, the Report ducks the question of whether exceptional circumstances can justify exceptional but temporary exceptions to written rules. The Report claims that no actionable intelligence resulted from “enhanced” interrogation techniques; those in a position to know dispute that conclusion, and since the writers of the Report interviewed no one in a position to really know on the pretext that a Justice Department inquiry was afoot, the burden of proof falls squarely on those writers. The writers and their defenders seem not to understand that evasions and efforts to mislead under interrogation can be very useful in assembling an overall picture of the situation. They have an almost childlike appreciation of the craft which, when conjoined to a preconceived conclusion dictated by partisan politics, makes for a decidedly weak case.
My own view is that exceptional circumstances can justify exceptional but temporary expedients. It is a slippery slope, to be sure, but at the very least it forces into question judgments about what is really exceptional—and that is as it should be. If the lives of many innocents are believed sincerely to be at risk, and if it is also believed that enhanced interrogation techniques might save them, the moral calculation as to what to do cannot be cut and dry. Torture, or what comes close to it, is not “always” wrong. That is why, again in my view, there is no choice in a democracy but to trust a small number of politically accountable people to use their best judgment in extraordinary cases. Polls suggest that the vast majority of Americans agree.
That, in turn, is why it is so harmful to criminalize political judgments after the fact, for that very prospect undermines the confidence that any decision-maker can have in his or her own judgment. It tends to produce meekness and timidity in circumstances where courage and the clear assumption of responsibility best serve the public interest. And that is why President Obama’s decision, already some years old now, not to seek indictments over these issues is so wise.
Nor does the Report comment on the internal discussions that took place concerning what information, if any, the U.S. government owed the International Red Cross while all this was going on. Some argued that since the al-Qaeda prisoners were not legal combatants, there was no obligation to say anything; when it came to Afghan nationals who were part of the Taliban, some argued the same since it was not a recognized government. Others had different views not because they “liked” the prisoners more or had a sentimental streak, but because they were mindful of precedent and what it all might mean for Americans who might one day fall into captivity.
In this regard, let me conclude with a comment on what has become a widely noted statement in the Report: that some at the White House and the CIA agreed to keep Secretary of State Colin Powell “out of the loop” because if he found out what was going on he would “blow his stack”—that language courtesy of the CIA’s John Rizzo. Yes, he well might have done so. But again, no one seems to be interested in understanding why.
Colin Powell can speak for himself, and I offered my old boss room here at TAI Online to do so if he wished. He does not wish, for reasons that need not be spelled out. So it remains for me to suggest an answer: Why would he have been annoyed had he been briefed on the enhanced interrogation program as the CIA implemented it? Two reasons come to mind.
First, he was mindful of the potentially long-lasting diplomatic problems such behavior might cause. Maybe some actionable intelligence might come from it, but how does that possibility stack up against likely costs when all this becomes public?—as it invariably does sooner or later. Abu Ghraib caused the seventh floor of the State Department no end of headaches, so this premonition was not for no good reason.
Second and more basic, Powell saw 911 as representing something well short of an existential threat to the United States, and he rued our taking ourselves hostage to fear on account of it. He opposed showing the world a fearful America because it would diminish U.S. influence; he opposed doing anything that undermined a posture of strength and confidence because that would gratuitously reward a weak enemy.
In short, he was reluctant to declare the situation “exceptional” and so justify exceptions in our own behavior. He would have blown his stack not because he was or is some sort of saint or sissy, but because he would have unsentimentally concluded that this sort of thing was likely to be counterproductive. Has he been proven correct? Well, that remains a matter of opinion.