As the Senate report on CIA interrogations courses through the national media this week, the once-popular notion that the Bush administration never really tortured anyone, or engaged only in "torture-lite," is no longer a tenable position. Still, the most expansive look to date at post-9/11 interrogation policy has generated nothing like universal outrage or condemnation. For every American who believes that those who participated in waterboarding, "rectal rehydration," and other depraved interrogation tactics ought to be prosecuted (per U.S. treaty obligations), many more would rather stop short of censure and move on. And that isn't just because Republicans have mischaracterized the report as partisan.
The impulse to forgive and forget unlawful torture is inseparable from the belief held by many that Bush administration officials, CIA interrogators, and private contractors acted in good faith to protect America and shouldn't be punished for doing so. If that were true, legal accountability for torturers would still be necessary to preserve a core civilizational taboo (as bygone Americans understood when joining a treaty that banned torture in literally all circumstances).
But the conceit that the CIA engaged in a relatively forgivable form of torture is wrong (even assuming a logic where there's such a thing as forgivable torture). The Senate report makes the untruth of this conceit abundantly clear, yet the conceit survives.
Here are its core tenets:
- After 9/11, the U.S. captured a lot of al-Qaeda terrorists.
- Torturing them was effective in gaining important intelligence.
- In the aftermath of 9/11, there was broad support for subjecting terrorists to these brutal tactics, because no one knew if more devastating attacks were imminent.
- The professionals at the CIA diligently did what they thought they had to do.
This would be a lot more plausible (though still not actually true) if every last tortured prisoner was like Khalid Sheikh Mohammed. But the attempt to portray the CIA's torture program as relatively forgivable falls apart when examined beside the facts. Let's take a smart, intellectually honest torture-opponent's assessment of CIA interrogations as our illustration of the spy agency being given too much credit. Ross Douthat begins by harkening back to the September 11 terrorist attacks.
"In the immediate aftermath of 9/11, amid the shock the attack produced and because of what seemed like an immense knowledge deficit about what our enemies were capable of doing," Americans feared that more mass casualty attacks were imminent, he argued. "This belief shaped the decisions made by senior policymakers as well as the attitudes of the general public, and it was shared by leaders of both parties, however leading Democrats prefer to cast their position nowadays."
He continued, "the pervasiveness of that belief, especially in those first anthrax days, has to shape on how we retrospectively assess the decision to push the envelope," adding, "this was a path our entire government took, with a public consensus at its back." He sees these as mitigating factors, but consider what his analysis leaves out.
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"Of the 119 known detainees," the Senate intelligence committee report declares, "at least 26 were wrongfully held and did not meet the detention standard in the September 2001 Memorandum of Notification." They "remained in custody for months after the CIA determined that they did not meet the standard," and one of these improperly detained prisoners, Abu Hudhaifa, "endured 66 hours of standing sleep deprivation and ice water baths," ABC News notes, "before being released because the CIA discovered he was likely not the person he was believed to be."
In other words, even if you're someone who is inclined to give the CIA a break for torturing al-Qaeda members, there is no reason to give them a moral or legal pass for that most serious of all negligent acts save homicide: carelessly torturing an innocent. Nor is there any reason to excuse holding prisoners without cause for months. It isn't as if they thought releasing those men sooner would cause another 9/11. Isn't being so careless as to torture an innocent something worth punishing? Or is it somehow okay if the same program tortured other people who weren't innocent?
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The Senate report notes that "at least five CIA detainees were subjected to 'rectal rehydration' or rectal feeding without documented medical necessity." They were effectively anally raped. Perhaps the American people would've endorsed that tactic in the weeks after 9/11 had the CIA been transparent about it. But the fact that it's only now making is way to the public cuts against the narrative that "this was a path our entire government took, with a public consensus at its back." In fact, Team Bush went out of its way to hide many of its actions, with President Bush explicitly saying that the U.S. does not torture. And another section of the Senate report notes that the CIA misled even executive branch overseers about "(1) the conditions of confinement for detainees, (2) the application of the CIA's enhanced interrogation techniques, (3) the physical effects of the techniques on detainees, and (4) the effectiveness of the techniques."
Even prior to that, "at the direction of the White House, the secretaries of state and defense—both principals on the National Security Council—were not briefed on program specifics until September 2003." If the CIA had consensus support for its program right after 9/11, that's because it hid it from many who would've destroyed that consensus. And, of course, many in the FBI did object to what the CIA was doing. The narrative portraying such broad agreement with the CIA's actions is wrong.
The worst of them would've never gotten majority support.
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According to the Senate report, "untrained CIA officers ... conducted frequent, unauthorized, and unsupervised interrogations of detainees using harsh physical interrogation techniques that were not—and never became—part of the CIA's formal 'enhanced' interrogation program." So even if you're inclined to give a pass to CIA agents who were "just following orders" and legal guidelines handed down by the Office of Legal Counsel, why would you absolve from legal accountability the people responsible for sending untrained CIA officers to torture prisoners in ways that weren't even approved by torture-friendly lawyers? The most defensible instances of U.S. torture aren't, I don't think, actually defensible—but they certainly don't justify the least defensible torture sessions. The bundling of all torture into "the interrogation program" is meant to obscure the fact that particular individuals perpetrated lots of discrete, illegal, indefensible acts.
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The Senate report states that "numerous CIA officers had serious documented personal and professional problems—including histories of violence and records of abusive treatment of others—that should have called into question their suitability to participate in the CIA's Detention and Interrogation Program," as well as "their employment with the CIA, and their continued access to classified information," and that "in nearly all cases, these problems were known to the CIA prior to the assignment of these officers to detention and interrogation positions."
Even a bureaucracy that reluctantly concluded torture was necessary to prevent another 9/11 would have known that the tactics they were preparing to use were as vulnerable to abuse as anything humans do. If their deeds were as forgivable as their defenders seem to imagine, they would've taken great care to prevent any more abuse than they felt national security required them to mete out. Instead, CIA officials knowingly sent violent abusers to carry out torture on their behalf. And that is yet another reason why the CIA does not deserve a reprieve from prosecution.
Even after the fact, the report states:
The CIA rarely reprimanded or held personnel accountable for serious and significant violations, inappropriate activities, and systemic and individual management failures. Significant events, to include the death and injury of CIA detainees, the detention of individuals who did not meet the legal standard to be held, the use of unauthorized interrogation techniques against CIA detainees, and the provision of inaccurate information on the CIA program did not result in appropriate, effective, or in many eases, any corrective actions.
CIA managers who were aware of failings and shortcomings in the program but did not intervene, or who failed to provide proper leadership and management, were also not held to account.
Should they be held to account, whatever one thinks of CIA torture in the abstract?
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Those facts all lead to this: The CIA's torture program was not just a forgivable lapse into reluctant brutality after the trauma of 9/11–it was a shockingly careless enterprise, rife with lies to overseers and criminally negligent behavior with consequences as serious as death. It exceeded even the substantial (if dubious) legal cover given by the Office of Legal Counsel, and included secret measures like "rectal feeding" that would have almost certainly stoked a public backlash. And I haven't even mentioned the many lies that CIA officials fed to Congressional overseers without ever being punished. Additionally, there is strong circumstantial evidence suggesting that U.S. torture had as much to do with recruiting intelligence operatives and getting intelligence in preparation for the push to war in Iraq as it did with discovering an imminent terror plot. And, of course, the torture mindset spread to Abu Ghraib, among other places.
There is no CIA torture program that would've been defensible. Even so, it's important to realize that America's post-9/11 torturing was far less defensible, in planning and execution, than even many torture opponents are making it out to be. Many aspects of it obviously failed consequentialist tests even at the time. And the number of egregious, needless abuses perpetrated by the CIA under Bush and Dick Cheney makes the case for punishing torturers especially strong. Had another country behaved just as we did, few Americans would object to prosecutions.
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