Threading the Needle on Interrogation Reform

Former Bush administration officials have criticized President Barack Obama for approving the release of memos offering details of CIA interrogation techniques, arguing the disclosure will hurt national security and give terrorists an advantage. But CFR counterterrorism expert Daniel B. Prieto disagrees, noting that many of the techniques described were already in the public domain. "Even before these memos were made public, a committed terrorist operative could have known about and could have prepared themselves for facing these techniques," Prieto says. The more significant aspect of the memos’ release, he says, is the insight they provide into the rationale for authorizing harsh interrogation methods. Yet Prieto says despite anger over revelations of the program, it will be hard to prosecute its architects.

On April 16 the Justice Department, with President Obama’s approval, released four memos outlining in graphic detail interrogation methods approved for CIA use against al-Qaeda suspects. First off, what have we learned from these memos, and what have we learned about the effectiveness of the techniques the memos describe?

It’s been widely reported that President Obama struggled significantly and went back and forth on whether to release the memos. It’s also been reported that a critical factor in his final decision was that many of the interrogation techniques described in the memos were already known publicly, as a result of past disclosures in media, and, in particular, from the recent disclosure by Mark Danner in the New York Review of Books of details from the 2007 ICRC [International Committee of the Red Cross] report on detainee treatment. That said, we learned two things from the disclosure of the memos and from the Senate Armed Services Committee report. First, there is a new and disturbing level of detail, basically an instruction manual describing how individual techniques were to be carried out. Second, we gained a much greater level of insight into the logic and reasoning that Bush administration lawyers used, and upon which senior Bush administration policymakers relied, to determine the contours and limits of the interrogation techniques, and to justify the interrogation policies. That’s really the interesting piece as we go forward--understanding how contorted aspects of the legal reasoning became in order to justify many of the techniques that were used.

Contorted? How so?

Many of the allowable techniques are ones that have been used by totalitarian regimes, the Chinese Communists during the Korean War and Cold War-era Soviet bloc countries. Developing questionable legal justifications for the use of such techniques by the United States is Orwellian.  And, as we know, three of the memos, the ones from 2002, were eventually withdrawn by the OLC [Office of Legal Counsel] as being legally flawed.

There was a piece in the New York Times [on April 22] detailing how the Central Intelligence Agency (CIA) framed its interrogation approach by mimicking a U.S. military training program that prepared personnel to withstand torture techniques. What does it tell us about the intelligence community in the post-9/11 era, that the CIA was looking to the military for guidance?

The very fact that there was so much time and effort spent on deciding very precise limits on these techniques indicates the level of concern that existed in the military and the intelligence community about the legality of the techniques that were being contemplated. Let’s look at the mental and legal gymnastics that went into specifying the particular limits of certain individual techniques. For the technique that they called "walling"-getting slammed against a "fake wall"--there was extreme care that went toward ensuring that the detainee’s neck was supported by a towel. So there was clearly a concern not to inflict certain types of injuries on the person being interrogated. These indicate efforts to approach but not cross a notional line in the definition of torture in American law. In the waterboarding description, it’s my understanding that there were very specific time constraints put on that-forty seconds of pouring water at any particular time, no more than twelve minutes in total per day. And the water used had to be a saline solution so as not to disturb the level of electrolytes in the detainee’s blood. The same is true of using a technique where the detainee was hosed down with cold water. The water had to be at a certain prescribed temperature, and the duration of the interrogation technique had to be such that it did not approach the level at which the person being interrogated would suffer hypothermia.

The challenge with American law is that the definition of torture relies on language that is open to interpretation. What constitutes "severe" physical and mental pain and suffering? What behavior meets the "shocks the conscience" standard? I certainly think that to many a reasonable person, these techniques shock the conscience. And, in my view, resorting to these techniques certainly betrayed American values and undermined the United States’ hard-earned reputation as a country committed not only to its national security, but also to human rights and civil liberties. So even if defenders of these techniques insist on arguing that the techniques were within the letter of the law, it is absolutely clear that the techniques violated the spirit of the law.

We can’t avoid the question of effectiveness, regardless of what may or may not be new in these memos. So specifically on waterboarding, the memos note that the procedure was carried out 266 times on two prisoners, though they are vague on whether the interrogations were successful. Were they?

Talking about the efficacy of these techniques and trying to come up with utilitarian justification is a difficult conversation to have, and it’s a troubling path to go down. Two observations. First, from a moral perspective, there should be bright lines about what the United States will and will not do. And determining those boundaries is--or at least should be--a policy decision, more than it should rely on hairsplitting legal interpretations. The United States should simply put its foot down and say that there are certain things that the United States does not and will not do. Second, relying on the supposed efficacy of certain harsh techniques has been the bulwark of the argument made by many defenders of these techniques for a number of years now. A number of senior Bush administration officials, including the president himself and including Vice President [Dick] Cheney, said, "Look, these techniques helped save lives." What’s interesting to me is that as more revelations come out, there may be an increasing discrepancy between the claim that the techniques prevented imminent attacks versus claims that they were useful to gain general intelligence but really weren’t absolutely necessary to prevent an imminent attack.

But the story is not over, is it? Cheney has already said there are other memos out there that need to be declassified that prove these techniques work.

There is clearly room for more daylight to be shined on these issues. That is why the Senate Select Committee on Intelligence announced in March, and should soon start, its inquiry into the value and utility of the intelligence that was obtained by using harsh techniques. But advocates for using these techniques ultimately rely on what I call the "Jack Bauer scenario," something familiar to anyone who has seen the TV show "24." It’s the hypothetical scenario, the ticking time bomb, the nuclear weapon about to go off in New York. The scenario is in many ways a fiction. There’s a real intellectual flaw in trying to base difficult and complex policy choices on scenarios so implausible and unlikely. It’s a recipe for crafting unsound and unsustainable policies where the risk of overreach and potentially criminal behavior rises significantly. To be sure, the threat of terrorism is significant and real. But the likelihood of capturing a terrorist at a moment that they possess information so critical and so time sensitive that it warrants torture is miniscule to nonexistent.

John Brennan, Obama’s senior national security aid, reportedly lobbied against the release of these memos. How significant is that gap between some members of the White House and the intelligence community?

The president is in a very tough spot in terms of how to move past the Bush legacy while trying to build much-needed national consensus on how we deal with terrorism going forward. He’s trying to thread the needle. It was a bold move to release the memos and at the same time say, "We’re not going to prosecute line-level operatives who employed these interrogation techniques."

Obama’s choice to indemnify CIA operatives who engaged in these techniques goes some way to undercutting arguments made by former [head of the CIA] Michael Hayden and [former] Attorney General Michael Mukasey in a recent Wall Street Journal op-ed. They argued that Obama’s actions amount to a breach of faith from the intelligence community. If anything, the president was highly cognizant of the risk of creating a schism with the intelligence community, and his announcement went some distance to try to make sure minimize the likelihood of that. This was also reflected in his speech to CIA employees at Langley a few days later. His focus on responsibility resting with people who crafted the policies and legal justifications is, in many ways, an attempt to act in good faith relative to the intelligence community.

As to whether disclosure of the memos harms national security because it allows terrorists to better prepare for what they might face, that risk might be overstated. Even before release of these memos, it had been widely reported that the techniques in question were based on the SERE techniques--waterboarding, immersion, forced nudity, isolation, slaps to the face and belly, stress positions, sleep disruption and sensory deprivation--that were used to train and prepare U.S. soldiers for treatment they might face in captivity. Even before these memos were made public, committed terrorist operatives could have known about and could have prepared themselves for facing these techniques.

Brennan reportedly worried these memos might become an embarrassment to foreign governments that cooperated with the United States on issues like rendition. We’re also seeing some foreign courts threaten to bring charges against former Bush administration officials. Given these concerns, how might the disclosure of these memos affect American intelligence cooperation with foreign allies?

I tend to view the release of these memos as not really adding that much more difficulty to those relationships, certainly no more than did the disclosure of the CIA prisons and the cooperation of some European governments in maintaining those facilities overseas. So I don’t see anything new here that makes it more difficult for us to get along with our European and other foreign counterparts.

Now, let’s turn to the possible pursuit of prosecutions by certain foreign governments against former senior Bush Administration officials. There’s certainly an enormous amount of goodwill in foreign capitals right now for President Obama. Many of these governments are keen to give the president room to try to address these issues first and to allow the United States time to go through its own process of fact-finding in these areas. I doubt that it is at the top of the agenda in many foreign capitals to create sideshows and political theater going after American officials. For example, in Spain, even though Judge Baltasar Garzón Real [a magistrate who gained prominence in 1998 for issuing an arrest warrant for former Chilean dictator Augusto Pinochet] has recommended pursuit of cases against former senior American officials--Cheney, [former Defense Secretary Donald] Rumsfeld, former Attorney General [Alberto] Gonzales--Spain’s attorney general has recommended that the case be dropped. I do think that there will be, hopefully, forbearance in European countries’ pursuit of these cases while the United States seeks to get its own house in order.

So how does the Obama administration move forward and begin to mend the divide, both domestically and abroad? Criminal prosecutions? A so-called truth commission?

The challenge President Obama faces is complex. First, how do you move forward on complicated detention and torture issues in a decisive and definitive manner so that continued arguments about the past do not bog down his administration and sap the political capital that he needs to deploy elsewhere in order to address the economic and financial crisis and an unquestionably ambitious policy agenda? Second, how do you rectify mistakes in U.S. counterterrorism policy and craft new policies in a way that engenders consensus? Is it even possible to do that? There was a Pew poll in early 2008 that illustrated the stark partisan divide in the United States on detainee interrogations.  According to the poll, 66 percent of Republicans felt that torturing terror suspects is often or sometimes justified, whereas Democrats believed the exact opposite--60 percent felt that torture is rarely or never justified.

It is in this political context that the president has the difficult task of forging new and sustainable counterterrorism policies that enjoy broad bipartisan support. Whether accountability for past mistakes takes the form of criminal prosecutions or so-called truth commissions, the risk President Obama faces is how divisive and rancorous such proceedings could be in an already deeply divided country. What can he do to ensure that such proceedings are not perceived by many as a political witch hunt? Stuart Taylor at The National Journal recently argued that what makes the most sense is a nonpartisan 9/11-type commission. To lead such a commission, Taylor recommended [Senator] John McCain [R-AZ] as someone with the stature, moral standing on issues of torture, and a record of independence from Bush and Obama that would be needed to grant bipartisan legitimacy to the effort.

The decision by President Obama to not pursue prosecutions against CIA operatives appears based on a very clear-eyed and pragmatic calculus. First, he is trying to sustain a relationship with the intelligence community in the face of protests by a number of current and former senior intelligence officials who argued against the declassification of the memos. Second, his decision may mark a recognition of how difficult it might have been to secure criminal convictions against those who conducted coercive interrogations. As discussed earlier, the torture laws leave room for interpretation. The 2006 Military Commissions Act revised the 1996 War Crimes Act in a way that narrowed what is considered a criminal breach of Common Article 3 of the Geneva Conventions. Further, the 2005 Detainee Treatment Act provided protection for interrogators against civil and criminal liability so long as they were acting in good faith to implement techniques that they believed were authorized.

This leaves open the possibility of criminal prosecutions against the architects of the interrogation techniques and the lawyers who helped justify those techniques. President Obama has indicated that he will rely on the Justice Department to determine how to proceed with potential criminal investigations. If such investigations are pursued, the immense challenge will be to somehow counter the crippling perception that the effort is a purely partisan endeavor and to create a process that is perceived as fair and does not devolve into a circus.