On the day he walks into his seventh-floor office, if confirmed by the Senate, Mr. Panetta will be managing employees who are under federal investigation for participating in the destruction of videotapes recording the interrogations of two prisoners suspected of being members of Al Qaeda. The prosecutor in the case, John H. Durham, recently told a federal judge that he would need until the end of February to interview witnesses as he considers whether to bring criminal charges in the case.
Beyond that inquiry, Mr. Panetta is facing the prospect that Democratic lawmakers might establish an independent commission tasked with looking into the Bush administration’s counterterrorism policies, including the roles played by C.I.A. employees.
The number of employees who would be targets of such a commission is relatively small, and many within the agency were never comfortable with C.I.A. officers acting as jailers. Still, some experts said any public fact-finding inquiry could be perceived within the C.I.A. as a witch hunt.
“If Panetta starts trying to feed people to that commission, his tenure at C.I.A. will be over,” said Mark M. Lowenthal, a former senior C.I.A. official and an adjunct professor at Columbia University.
“If it happens, C.I.A. people are not going to start plotting against the president, but they are going to withdraw from taking risks, and then the C.I.A. becomes useless to the president,” Mr. Lowenthal said.
It is fairly astonishing, coming weeks after the publication of the Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, that the CIA is this threatened by an independent commission. Or that it might seem at all avoidable. Let's look at the way the CIA is described in the Senate Armed Services Inquiry Report:
From page 5:
(U) Mr. Haynes was not the only senior official considering new interrogation techniques for use against detainees. Members of the President’s Cabinet and other senior officials attended meetings in the White House where specific interrogation techniques were discussed. Secretary of State Condoleezza Rice, who was then the National Security Advisor, said that, "in the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists." Secretary Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the program and asked the Attorney General John Ashcroft "personally to review and confirm the legal advice prepared by the Office of Legal Counsel." She also said that Secretary of Defense Donald Rumsfeld participated in the NSC review of CIA’s program.
from page 6:
(U) The other OLC opinion issued on August 1, 2002 is known commonly as the Second Bybee memo. That opinion, which responded to a request from the CIA, addressed the legality of specific interrogation tactics. While the full list of techniques remains classified, a publicly released CIA document indicates that waterboarding was among those analyzed and approved. CIA Director General Michael Hayden stated in public testimony before the Senate Intelligence Committee on February 5, 2008 that waterboarding was used by the CIA. And Steven Bradbury, the current Assistant Attorney General of the OLC, testified before the House Judiciary Committee on February 14, 2008 that the CIA’s use of waterboarding was "adapted from the SERE training program."
(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released. Judge Bybee also recalled discussing detainee interrogations in a meeting with Attorney General John Ashcroft and John Yoo in late July 2002, prior to signing the OLC opinions. Mr. Bellinger, the NSC Legal Advisor, said that "the NSC’s Principals reviewed CIA’s proposed program on several occasions in 2002 and 2003" and that he "expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations."
An entire section of the Report is entitled, "JPRA and CIA Influence Department of Defense Interrogation Policies (U)"
from page 7:
(U) JPRA was not the only outside organization that provided advice to GTMO on aggressive techniques. On October 2, 2002, Jonathan Fredman, who was chief counsel to the CIA’s CounterTerrorist Center, attended a meeting of GTMO staff. Minutes of that meeting indicate that it was dominated by a discussion of aggressive interrogation techniques including sleep deprivation, death threats, and waterboarding, which was discussed in relation to its use in SERE training. Mr. Fredman’s advice to GTMO on applicable legal obligations was similar to the analysis of those obligations in OLC’s first Bybee memo. According to the meeting minutes, Mr. Fredman said that "the language of the statutes is written vaguely… Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture [is] described as anything leading to permanent, profound damage to the senses or personality." Mr. Fredman said simply "It is basically subject to perception. If the detainee dies you’re doing it wrong."
from page 16:
Conclusion 2: Members of the President’s Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA’s interrogation program during that period.
Conclusion 6: The Central Intelligence Agency’s (CIA) interrogation program included at least one SERE training technique, waterboarding. Senior Administration lawyers, including Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, were consulted on the development of legal analysis of CIA interrogation techniques. Legal opinions
subsequently issued by the Department of Justice’s Office of Legal Counsel (OLC) interpreted legal obligations under U.S. anti-torture laws and determined the legality of CIA interrogation techniques. Those OLC opinions distorted the meaning and intent of anti-torture laws, rationalized the abuse of detainees in U.S. custody and influenced Department of Defense determinations as to what interrogation techniques were legal for use during interrogations conducted by U.S. military personnel.
[emphasis supplied]
+++++
The Inquiry report contradicts the somewhat passive role of the CIA forwarded by CIA folks and people like Senator Feinstein (who is rapidly emerging as an enemy of change). The AP quotes Feinstein today:
"Senate Intelligence Committee Chairman Dianne Feinstein told The Associated
Press in an interview this week that there is a clear distinction between those
who made the policies and those who carried them out.
'They (the CIA) carry out orders and the orders come from the (National Security Council) and the White House, so there's not a lot of policy debate that goes on there," she said. "We're going to continue our looking into the situation and I think that is up to the administration and the director.'"
There are at least three issues I have with that statement. One - the Senate Armed Services Committee's report suggests that the CIA played an active role - perhaps it was the CIA who sought permission to use torture on detainees. The CIA requested a legal opinion on its interrogation techniques. And the report says that, according to Condoleezza Rice, "in the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists." And someone must have authorized CIA lawyer Fredman's meeting with GTMO staff. The Report makes it seem at least plausible that the CIA actively crafted policy with the administration.
My second issue is with those who developed and approved Standard Operation Procedures (SOPs) for interrogation within the CIA ranks. The Senate Armed Services' report describes the process on the military/GTMO end on page 10:
Following the Secretary’s December 2, 2002 authorization, senior[emphasis supplied]
staff at GTMO began drafting a Standard Operating Procedure (SOP)
specifically for the use of SERE techniques in interrogations. The draft SOP
itself stated that "The premise behind this is that the interrogation tactics
used at U.S. military SERE schools are appropriate for use in real-world
interrogations."
Obviously to ensure the success and "legality" of their maneuvers, CIA staff would have had to create a set of rules and routines for case officers and their staff to follow. In doing so, the staff involved should have appreciated their serious level of responsibility. We need to find out who wrote SOPs for the CIA and who approved them. We have a meager understanding of how this happened in the military; if only in the spirit of fairness, we must discover how similar events transpired in the CIA.
My third issue is with the complete unwillingness of Feinstein to apply the "command responsibility" standard. If the Executive Branch suggests an entire agency should ignore international law, is no one in that agency to be held responsible for the agency's complete capitulation? If a military commander is responsible for the behavior of her unit, is not SOMEONE in the CIA responsible for the behavior of an entire agency?
The principle of command responsibility "holds a superior legally responsible for human rights abuses by subordinates if the official knew or should have known about them and failed to prevent them or punish those who committed them." (Foreign Policy in Focus). Examine this chart of the CIA's chain of command (pre 9/11 commission reforms). This chart suggests that we lay all that happened under the umbrella of Operations at the feet of the Executive Secretary, the Deputy Executive Director and the Executive Director, and the Deputy Director and Director of the CIA. They implemented Bush policies, and they monitored their failures and successes.
Finally, it is in the long term political interest of the CIA to support a Congressional inquiry into their involvement in Bush interrogation policy. You may've noticed the source that suggests the CIA came to the NSC looking for approval was Rice. Cheney's narrative is similar, in recent interviews:
Soon after the Sept. 11 attacks, Cheney said, the CIA "in effect came in and
wanted to know what they could and couldn't do. And they talked to me, as well
as others, to explain what they wanted to do. And I supported it."
If the CIA would like its view that it was ignored and abused by the Bush admin. to be supported by anything more than wishful thinking, it will encourage an official investigation into how we went to war in Iraq and how our interrogation and detention policy developed. Otherwise the CIA's political enemies will make whatever claims they wish to make - and no official record will be there to call them out.
A full investigation of the CIA is necessary. It should begin early this year, and we must demand that it begins early this year.
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