Does the Senate report on CIA torture even matter?

On Dec. 9 the Senate Intelligence Committee released the summary of its report on the Central Intelligence Agency’s detention and interrogation program. The report reveals clear violations of international law, perhaps even crimes against humanity — but it is unlikely that anyone will face justice.

While the U.S. deserves credit for acknowledging these excesses, Washington is free to do so only because of its veto-power protection at the United Nations. Ultimately, any actions taken to condemn U.S. atrocities will be purely symbolic. No other country or constellation is capable of delivering meaningful multilateral sanctions or other reprisals in the U.N.’s stead. As such, the U.S. is in a unique position, in which it can do and admit to doing virtually anything with few direct legal consequences.

Such egregious violations would typically be investigated and prosecuted in the International Criminal Court (ICC), which Washington has sought to undermine from its inception. President Bill Clinton signed onto the Rome Statute — which established the court and laid out its jurisdiction over genocide, war crimes and crimes against humanity — at the end of his term, but his successor George W. Bush withdrew the U.S. commitment before Congress ratified the agreement, precisely out of concern about U.S. policies in the wake of 9/11. As former U.S. Ambassador to the U.N. John Bolton underscored at the time, since the treaty was not ratified, the U.S. would not be accountable to the ICC unless referred by a Security Council resolution, which the U.S. could simply veto.

Since the perpetrators won’t be held accountable in international forums, the U.N. and human rights groups have called on the White House to prosecute participants in the CIA program in U.S. courts, pursuant to its treaty obligations to prevent and prosecute war crimes and crimes against humanity. However, officials in Bush’s administration approved the CIA’s enhanced interrogation program — albeit, apparently, without the president’s direct knowledge. As a result of this clearance by the White House and the Department of Justice, prosecution in U.S. courts would be difficult. Besides, President Barack Obama has already all but pardoned the participants, even those who stepped outside the permissive framework laid out by the Bush administration.

These points raise an important question: Beyond the political grandstanding, does the Senate report even matter?

The Senate’s report shows the CIA and its contractors repeatedly misled the public, the White House and other policymakers. First, the CIA oversold the effectiveness of the program, marginalizing internal voices that questioned its wisdom on tactical or moral grounds.

Second, the agency failed to disclose critical information about the scope and depravity of its operations, often stonewalling inquiries from the Senate Intelligence Committee, the representative body tasked with overseeing the CIA and other intelligence agencies. Without this external auditing — given that the internal systems for oversight have proved woefully insufficient — for all intents and purposes, the agency was acting without meaningful checks or accountability.

Third, the CIA justified its “enhanced interrogation” techniques by citing examples of these methods’ supposedly producing critical intelligence. The Senate report reveals that in all 20 cases cited by the agency, torture failed to produce actionable intelligence that was unavailable by other means. In the few instances in which the CIA got good intelligence via enhanced interrogation, it generally corroborated existing information rather than made new and important contributions.

Torture never led to the capture or killing of high-value targets, the disruption of any imminent attacks or the interception of significant national security threats. This is hardly surprising. Psychologists and psychiatrists have long argued that torture is unlikely to produce good intelligence. Even by the program’s own standards of effectiveness, enhanced interrogation was useless and malignant to U.S. interests. Nonetheless, the CIA paid more than $80 million to two psychologists to develop and administer the program despite conflicts of interest and a lack of any experience with interrogation or substantive knowledge about the Middle East or counter-terrorism.

While “surprisingly few” government agents were involved in the program, those who did had a history of bending the rules, even of abusive behavior, according to Sen. Dianne Feinstein, D-Calif., despite glaring red flags, many of these people — who should have been terminated long before 9/11 — were entrusted with such delicate work in an environment of near-total impunity.

Beyond the bad actors on the U.S. side, the CIA also relied heavily on outsourcing torture to some of the Middle East’s most repressive states — rewarding autocrats with cash payments and some measure of implied protection in exchange for their cooperation.

It is unclear whether the Senate investigation will lead to accountability or any meaningful changes in U.S. policy. The CIA’s history suggests otherwise. For instance, a 1989 CIA review of U.S. Cold War intelligence policies concluded, “inhuman physical or psychological techniques are counterproductive because they do not produce intelligence and will probably result in false answers.” The preliminary findings from this investigation prompted President Ronald Reagan to sign the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment during his final months in office. It is stunning to see the same agency whose inefficacy motivated the U.S. to sign the international prohibition against torture spearheading the egregious violations revealed in the Senate report. More needs to be done to ensure that a similar relapse does not happen again.

The public debate sparked by the report’s release gives Obama the opportunity to reform and expand oversight of intelligence, as continued overreach poses a profound threat to U.S. freedoms and democratic values. While he has ostensibly shuttered CIA black sites and put a freeze on torture (measures that are not necessarily binding for his successors), he has yet to fulfill his pledge to close the Guantánamo Bay detention facility, where many of these crimes took place. Dozens of prisoners remain held in indefinite limbo — not charged with, tried for or convicted of any crime — and force-fed if they are on hunger strike to protest their conditions. 

Beyond enhanced interrogation, the U.S. should review other ineffective counterterrorism practices — such as its extraordinary rendition, drone killing and NSA bulk surveillance programs — that seem to similarly violate international rules and norms and generate substantial blowback. Moreover, the White House cannot praise the Senate report and highlight the importance of bringing these abuses to light while fighting transparency, punishing whistleblowers with unprecedented ferocity and generally interfering with the free press.

Unless Washington backs up its mea culpa with substantive policy reforms, the Senate’s investigation will amount to little more than an exercise in futility.