Jonathan Ernst/Reuters
Jonathan Ernst/Reuters

A tale of two torture reports

We already know the CIA misled the Justice Department; the Senate’s report should be made public

March 25, 2014 7:00AM ET

Two leaders of President Barack Obama’s party in Congress, Senate Majority Leader Harry Reid and Senate Select Committee on Intelligence (SSCI) Chairwoman Dianne Feinstein, have accused the Central Intelligence Agency of attempting to intimidate Senate staffers for their work on a still-classified 6,000 page report on the agency’s post-9/11 detention and interrogation program. Feinstein first made the charges in a speech on the Senate floor on March 11. Reid followed on March 19 with letters to CIA Director John Brennan and Attorney General Eric Holder, charging that the “CIA has not only interfered with the lawful congressional oversight of its activities but has also seemingly attempted to intimidate its overseers by subjecting them to criminal investigation.”

One portion of the SSCI report is particularly crucial for understanding why the CIA would risk alienating Congress to this degree. A 128-page section of the committee’s report examines misrepresentations that the CIA made to the Department of Justice about its detention and interrogation program. CIA officials still defend the program’s legality on the basis of a series of opinions by the Justice Department’s Office of Legal Counsel (OLC) finding that the agency’s black site program did not violate the criminal prohibitions on torture and war crimes. But those OLC opinions rested on a foundation of claims by the CIA about the safety and efficacy of “enhanced” interrogation techniques. According to Feinstein, many of these claims were made by Robert Eatinger, the same CIA official who recently recommended SSCI staffers for possible prosecution.

Although we have not read the SSCI report, we contributed to another report on torture published nearly one year ago by the Task Force on Detainee Treatment, which conducted an independent investigation for the Constitution Project, a Washington, D.C., think tank that seeks bipartisan consensus on issues concerning the Constitution, rule of law and criminal justice. Unlike the SSCI, the task force had no ability to subpoena documents or access classified information, and its report did not mention Eatinger by name. But we did find major inaccuracies in the information that the CIA provided the Department of Justice about the torture program.

When it was seeking legal reauthorization of the torture program in 2004 and 2005, the CIA did not merely claim that detainees had, at some point after being brutally interrogated, provided some useful pieces of information. Rather, the agency said that “the intelligence acquired from these interrogations has been a key reason why al-Qa’ida has failed to launch a spectacular attack in the West since 11 September 2001.”

The CIA misled the Justice Department. They told the OLC that it was only after subjecting Zain Abidin Mohammed Husain Abu Zubaydah to “enhanced” techniques that he “identified KSM [Khalid Sheikh Mohammed] as the mastermind of the September 11 attacks” and provided information that led to the detention of José Padilla in May 2003. As detailed in the task force’s report, this chronology is false. Abu Zubaydah identified Mohammed as the Sept. 11 mastermind during FBI interrogation long before the CIA was authorized to torture him in late 2002 — and Padilla was actually detained in May 2002, before the CIA tortured Abu Zubaydah. Public record evidence also contradicts the CIA’s claim that its “enhanced” interrogation of Mohammed and several other detainees led to the discovery of a plot to fly hijacked airliners into a skyscraper in Los Angeles and the capture of a 17-member terrorist cell tasked with carrying out the attack.

These are not trivial errors. The OLC’s reauthorization of the black site program in 2005 was based on its acceptance of CIA claims that interrogators inflicted only as much pain as necessary to obtain “vital, actionable intelligence that might avert an attack against the United States or its interests.” The task force found a great deal of evidence in the public domain — far more than can be discussed here — refuting this premise. According to a number of senators, the Intelligence Committee’s report disproves it far more conclusively, using the CIA’s own records.

Proof that the legal authorization for torture rested on false claims by the CIA will be embarrassing and painful for the officials involved. But in the words of Sen. John McCain, it may also enable us to finally “reach a consensus in this country that we will never again engage in these horrific abuses and that the mere suggestion of doing so should be ruled out of our political discourse, regardless of which party holds power.”

We live in a democracy, and the American people have a right to know what was done in our name. Instead of continuing to ask the public to trust them, Obama and the intelligence community owe us the truth. They must declassify the Senate report. 

Katherine Hawkins was the investigator for the Constitution Project’s Task Force on Detainee Treatment. 

Alka Pradhan is a counterterrorism counsel for Reprieve U.S. and a member of Abu Wa’el Dhiab’s legal team. She was also a counsel for the Constitution Project’s task force on detainee treatment, a bipartisan group of former U.S. officials who concluded that force-feeding procedures at Guantánamo are abusive.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.

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