With today’s release of what is being shorthanded as the “torture report” (in reality, an executive summary less than one-tenth the size of the full classified document), America now has the printed consensus behind President Barack Obama’s August admission (for lack of a better word): “We tortured some folks.”
“While the Office of Legal Counsel found otherwise between 2002 and 2007, it is my personal conclusion that, under any common meaning of the term, CIA detainees were tortured,” said Sen. Diane Feinstein, D-Calif., chairwoman of the Senate Intelligence Committee.
But, as noted in today’s release, the Bush OLC knew they were doing legal gymnastics. White House lawyers specifically asked the Attorney General for “a formal declination of prosecution, in advance” for anyone the US oversaw who employed the techniques we now all understand to be torture. They knew in advance that the acts that were illegal, so they asked — in advance — for a blanket amnesty.
They knew it was illegal then, so what does that mean today?
As is implied by Feinstein’s use of those dates, and was likely inferred by most who heard the president this summer, the summary of the Senate Select Committee on Intelligence torture report is looking backward (something Obama pooh-poohed in his earliest days in office), with the assumption that after 2007, or at least after the 2009 handover at the White House, everything changed.
But it is the reference to the OLC findings — in the summary and in Feinstein’s statement — that sort of strips the insulation off that convenient construct.
The post-9/11 torture program is dated to a September 17, 2001, Memorandum of Notification (MON, aka the “Gloves Come Off” finding) — notably a day after Vice President Dick Cheney’s TV appearance with Tim Russert, where Cheney and Russert blithely concurred it was time for the US to embrace the “dark side” — which was used as cover and as the foundation for subsequent findings by the Bush Administration’s legal team.
But that 2001 finding doesn’t have an expiration date, and there is no evidence of an Obama-era finding that directly controverts the Gloves Come Off memorandum. In fact, there is evidence that the Obama administration continues to operate under that finding (or did until at least 2012).
The finding that authorized the torture program also authorized drone strikes without notable process or oversight. Just three days into office, Obama OK’d a strike inside Pakistan that reportedly killed 11 civilians, and over the course of 2009, the CIA — Obama’s CIA — conducted 52 drone strikes, killing hundreds.
The drone strike that killed Anwar al-Awlaki, an American citizen, in 2011, was launched without due process and again, under the legal cover of the 2001 MON. And, as has been noted by Marcy Wheeler, when the 2nd Circuit Court of Appeals ruled in 2012 that Obama could withhold the language in legal findings that authorized the torture programs, it did so under the authority of that seminal memorandum.
In fact, in that 2nd Circuit ruling, the court made specific reference to an ongoing program: “We give substantial weight to the Government’s declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity.”
So, what to make of Feinstein’s assessment that programs detailed in the report and still permissible and possibly active under the cover of the Gloves Come Off memorandum were “morally, legally and administratively misguided?”
Feinstein purposely put her statements in the past tense. The president, too, would like this to be all about looking backward. “Today's report can help us leave these techniques where they belong — in the past,” said Obama in a post-release statement. And it may be true that, under the Obama administration, inside the United States, or in facilities under the direct control of the US (yes, that, too, is a loophole), the waterboarding, beatings, rapes, and other barbaric forms of “interrogation” have stopped, but that should give Feinstein, Obama or any of the program’s critics little comfort.
First, how do any of them know?
More disturbing, in a way, than the torture summary’s details of serialized brutality is its accounting of systemic deception.
“The CIA repeatedly provided inaccurate information to the Department of Justice, impeding a proper legal analysis,” stated the report. The CIA did the same for the Congressional committees tasked with Intelligence oversight. Beyond simply conducting “interrogations” in a manner “far worse than the CIA represented,” as the report detailed, Intelligence officials lied to specific members of Congress about the very existence of these programs — members who not only had full authority to ask, but members who were required by law to be fully informed.
And second, though the president would like to use this moment, as he said, to only look forward and not “refight old arguments,” by not releasing the full language of the torture memoranda, by not publicly issuing a new memorandum that finds the Bush-era rulings to be invalid and, indeed, to keep operating some programs under the authority granted by the people who are now publicly deemed responsible for authorizing torture, there is no assurance that another leader wouldn’t pick up where the Bush administration left off. Indeed, there is no assurance that, given some new terrorist attack or heinous provocation, the current president’s CIA wouldn’t return to the methods they practiced from at least 2002 to 2007 (because, you know, practice makes perfect).
Obama makes a point in today’s statement to say he formally ended “one element of our nation’s response to 9/11 — the CIA’s detention and interrogation program,” but by making sure to specify, he is specifically leaving the door open on other actions permitted under findings generated by the Bush OLC. It is well and good that Obama “will continue to use [his] authority as President to make sure we never resort to those [torture] methods again,” but being a little bit moral is about as plausible as being a little bit pregnant. Until the current president repudiates the legal directives of the Bush administration in an open and adjudicated fashion, this report and the crimes it details, are just as much his baby as anyone’s.