“I want to be absolutely clear with our people and the world. The United States does not torture,” said George W Bush on 6 September 2006.
Bush was, for the first time, acknowledging the existence of the program that Senate intelligence committee staff investigator Daniel Jones would later expose as taking power drills to the heads of captured men; making them stand with their arms stretched above their heads for days at a time; leaving at least one of them naked until he froze to death; waterboarding them to the point of catatonia as bubbles rose from their open mouths; and inserting pureed food into their rectums while claiming it was necessary for delivering nutrients.
Details of those procedures were outlined in the 525 pages which CIA director John Brennan, Barack Obama and White House chief of staff Denis McDonough allowed to become public.
The CIA’s response to Jones’s report was split into two corps, one official and one not. The agency itself would no longer defend torture outright because that would contradict the Obama White House’s position on the unacceptability of torture. Instead, the agency would say that tortured men produced valuable intelligence, just not necessarily as the result of torture, and that the Senate could not definitively prove the torture did not produce valuable intelligence.
Brennan gave a press conference following the release of the report in December 2014. It began with him spending five minutes reciting the unfolding developments of the 9/11 terrorist attacks and crescendoed with him calling the relationship between torture and useful intelligence “unknowable”. Jones’ boss, the driving force behind the report, California Democratic Senator Dianne Feinstein unexpectedly live-tweeted responses to Brennan’s press conference as it progressed, creating the hashtag #ReadTheReport.
The second corps consisted of retired CIA directors, a group known colloquially as the “Formers”. They laid into the Senate committee with a vigor that Brennan, who still had to answer to it, could not. The Formers, who would in September 2015 attack the report in a book called Rebuttal, called the committee’s work a partisan hit job. They disdained it for not interviewing CIA officials involved in the program – all the while ignoring the fact that committee Republicans and Obama’s justice department prevented Jones from conducting those interviews. They reiterated the insistence that torture yielded a wealth of intelligence and derided the Senate report for what they called its leaps in logic. One of them was former acting director Michael Morell, a frequent television guest, who would publish a memoir in May 2015 recapitulating much of the standard CIA line.
“Morell, he presents himself as this thoughtful guy, who’s really in the weeds and knows things, but he went out and talked about how the report was inaccurate, he wrote a book with inaccuracies. He stated publicly that he had only read 300 pages of the executive summary and told Feinstein he hadn’t read the full report,” Jones said.
“It was the same problem with the agency, over and over again. Either you are knowingly spreading inaccurate information, which is pretty terrible, or you just don’t want to know, and you take a briefing with inaccurate information and you just repeat it.”
CIA spokesman Ryan Trapani said that the agency did not coordinate its response with the Formers. The Senate committee “withdrew its approval to let former officers read the executive summary prior to its release to the public, so some were not able to read or prepare responses to the accusations until [the committee] released its executive summary to the public,” Trapani said.
Glenn Carle was a CIA officer from 1985 to 2007. He knew Brennan while at the agency and respects the director’s “subtle and fair mind”. After 9/11, Carle was called upon to interrogate a terrorism suspect he now believes is innocent. Although he did not use the brutal techniques called out in the Senate report, the experience deeply affected Carle, who has become a vocal critic of the agency’s post-9/11 torture.
While Carle said the CIA often holds a legitimate feeling of besiegement against outside criticism – “We’re always the ones left holding the bag after we’re asked to mine the harbors or overthrow the government,” he noted – the fury of the CIA reactions to the Senate troubled him.
“I was dismayed by the response, which I thought was in parts intellectually shoddy, simple-minded, unnecessarily defensive, circle-the-wagons reactive and wrong and harmful,” Carle said.
He continued: “We were well outside of the bounds, and it was obvious. And part of the defense the agency used, the Bush administration used, defenders, proponents, Republicans use, is that ‘You have to understand the context of the times, we were all afraid there was going to be another attack, we had to act.’ That’s all bullshit. No, you cannot do that. Our job is not to react emotionally, and in fear, and reflexively, which is what that is a justification for doing. Our job is to get it right. Our job is to see through that and have the courage to act correctly.”
The CIA was not alone in attacking the report. The Senate committee’s Republicans, who had pulled out of the inquiry in September 2009, savaged it as a Democratic witchhunt – a critical boost for a CIA that wanted to avoid the narrative that it was pitted against the Senate.
While in 2009 the committee Republicans had urged the CIA not to grant interviews while a parallel justice department inquiry unfolded, now they attacked their Democratic colleagues for not renewing a request once the DoJ inquiry was concluded in 2012: “The committee had a window of opportunity to invite these relevant witnesses in for interviews, but apparently decided against that course of action.”
Jones said: “The Republicans were never supportive of interviews. Period. They just played games with this.”
As the CIA’s rebuttal strategy began to unfold, Democrat Mark Udall took to the Senate floor. Udall was less constrained than any intelligence committee member. He had lost his re-election campaign and had only weeks remaining in the chamber. Udall had earlier flirted with reading the entire report into the Senate record and daring the administration to prosecute him. Instead, he excoriated the White House for aligning with the “flippant and dismissive” CIA against the Senate.
“While the study clearly shows that the CIA’s detention and interrogation program itself was deeply flawed, the deeper, more endemic problem lies in a CIA, assisted by a White House, that continues to try to cover up the truth,” Udall said on 10 December 2014. He accused the White House of “letting the CIA do whatever it likes, even if its efforts are aimed at actively undermining the president’s stated [torture] policies.”
Udall continued: “Director Brennan and the CIA today are continuing to willfully provide inaccurate information and misrepresent the efficacy of torture. In other words, the CIA is lying. This is not a problem of the past.”
The report was the result of six years of Jones’s work. The seventh year was consumed by two tasks: defending the torture report against its CIA and Republican critics; and attempting to entrench its purpose – preventing torture – into law. Success would vary.
Jones still wasn’t speaking in public. He was a Senate committee staffer, although he recognized, now that North Carolina Republican Richard Burr was chairman, his position on the committee was untenable.
In his first month in office, Burr took an extraordinary step. The Senate had delivered copies of the classified report across the executive branch to the various agencies – the justice department, the Pentagon, and so forth – with equities in it. Burr, in his first month as chairman, formally requested the copies back. Burr’s home-state newspaper, the Raleigh News & Observer, editorialized that the senator preferred “to hide the misdeeds of the CIA’s secret prisons rather than have others in government review what happened”.
The ACLU, which had sued for disclosure of the document, filed an emergency motion to block Burr. In response, the administration pledged to “preserve the status quo”, meaning that it wouldn’t give the classified report back. If there was an opportunity to learn lessons from careful, private reading of the full report, the agencies did not take it – they did not even remove the 6,700-page classified report from its packaging – an issue complicated by freedom of information lawsuits that mired the documents in bureaucratic limbo. The report’s advocates considered that a final gut punch from the administration: “The point is to learn from it,” Jones noted.
Ron Wyden, the Oregon Democrat and intelligence committee member, has not given up. “I want the full report out, with necessary redactions,” he said.
Carl Levin, a recently retired Michigan Democratic senator whose chairmanship of the armed services committee made him a non-voting member of the intelligence panel, considered it a legacy issue for Obama.
“The president ended the CIA program by executive order in January 2009, as one of his first actions in office. By distributing the classified Senate study throughout the executive branch as appropriate before he leaves office, he’ll be making it less likely that his executive order will be rescinded by a future president,” Levin said.
As the public attacks on the report compounded through 2015, Feinstein opted to wage a continuous response. Jones’s new job was to pore over each criticism from the CIA Formers or other prominent surrogates and rebut them in statements Feinstein would send to reporters and place on her website. The task was not much different from how he had spent the previous six years.
The first major salvo came in the name of former Indiana Democratic senator Evan Bayh, himself a former intelligence committee member, barely a month after the Senate report was published.
After the inspector general had taken the agency to task for breaching the network firewall, Brennan asked Bayh to convene an “accountability board” to review the episode. As Bayh already served on the CIA’s advisory board, his report, unsurprisingly, exculpated Brennan, walked back the inspector general’s denouncement of the network breach, said the five CIA officials involved in the breach acted reasonably, and criticized the committee.
Bayh’s account, issued in January 2015, prominently reiterated that that the CIA and Senate lacked a “signed memorandum of understanding” limiting the agency’s role on the network – despite the sheaves of agreements in May and June 2009 between Panetta and Feinstein explicitly laying that out – and noted that the login screen on RDINet referenced the prospect of monitoring and warned of a lack of privacy expectation. Still, even Bayh found the CIA had “improper access” to the Senate files.
Jones, who said – improbably – that he doesn’t remember seeing the warning message at login, expressed exasperation with Bayh’s defense. “We went back and forth, months and months, up to the principals level, where Feinstein’s sitting across the table from Panetta … and they’re demanding these things happen, and we’re exchanging letters and we’re saying: ‘OK, we’ve reached agreement.’ It would just be absolutely ridiculous to think that after all those months of negotiations saying the CIA wouldn’t have access to our computers that we would go in there and every time we log on we’d just erase the decision that was made between the director of the Central Intelligence Agency and the chair and the vice-chair of the Senate intelligence committee.”
Unusually, Bayh’s panel was mostly anonymous. It had five members. The only other named member was Bob Bauer, the former White House counsel who had vouchsafed for the CIA no longer removing torture documents after it was caught taking 900 of them from the Senate in 2010. The other three, CIA officials, were never revealed, not even to the Senate. It is unknown if they played any role in the torture program; the CIA did not answer that question when the Guardian asked.
“The information released with regard to this matter was extraordinary. Nonetheless, some information was appropriately redacted or withheld,” said the CIA’s Trapani, citing a legal provision that affords the CIA leverage to withhold its officials’ identity.
Bayh has won the Democratic nomination for Senate in Indiana and is currently running to reclaim his old seat. He did not respond to a request for comment.
“Regarding the CIA’s search of Senate computer files and their going into the emails of Senate staff, I don’t know what to say,” said former Senate intelligence committee chairman Jay Rockefeller.
“You either have oversight and separation of powers with the checks and balances that come with that, or you don’t. It’s amazing that, once again, no one at the CIA was held accountable.”
Feinstein told the Guardian that she is not currently inclined to “rehash every interaction” in the years-long fight over her report. Instead, she pointed to the CIA’s response as an inadvertent testimony to its rigor.
“While the report has been relentlessly attacked by the CIA and former agency officials, no factual errors have been found,” she said.
“Continued efforts to obfuscate the report’s findings and justify a very dark chapter in our nation’s history do not change the facts, which stand without correction. By contrast, the CIA itself has acknowledged numerous factual errors, not only in its representations about the program but in its 2013 response to the report.”
As consuming as the rear-guard defense of the torture report was, Feinstein, no longer in possession of a gavel, pivoted to legislating the lesson that motivated it. In June 2015, by a wide bipartisan margin of 78 to 21, Feinstein and John McCain successfully passed an amendment to the annual defense authorization bill prohibiting the CIA from engaging in interrogations more brutal than an army field manual authorized. Obama signed the bill, giving the force of law to his 2009 executive order ending torture.
“Implementing all of the reforms needed to address the problems the report exposed is most important to me,” Feinstein told the Guardian, “and I am continually looking at ways to do that.”
In December 2015, Jones left the Senate. Feinstein read a tribute to Jones into the record. He joined a Washington consulting firm led by Tom Daschle, Reid’s predecessor as Senate Democratic leader, and started a firm, the Penn Quarter Group, to advise businesses and nonprofits on research and investigations.
“It was obvious I needed to leave the committee,” Jones said. While he said senators encouraged him to push back against torture in public, “I needed a break. It’s hard to describe how much of my life…” Jones trailed off.
“I was gone from the world for a number of years. It’s a bit of an adjustment to being a normal person.”
Rockefeller, the former senator and intelligence committee chairman who hired Jones in late 2006, said: “We were lucky to have him leading our investigations. He and others devoted so much of their lives to making sure this Senate study got done – and was done right.”
“Dan and his team worked under considerable pressure for more than seven years to complete the full 6,700-page classified report on the CIA program,” added Levin.
“He and his colleagues always comported themselves in a professional manner, were diligent, and maintained the highest of ethical standards throughout this ordeal, despite all of the challenges they faced.”
Jones has regrets about the way the declassified report turned out. Most prominently, Jones wishes he had gotten declassified the nearly 100-page table of contents for the full 6,700-page torture report, so readers could understand from the headings and subheadings just what the full contours of the torture was: “It has an incident on a particular day of someone’s detention, and there might be 10 pages on it. Or there might be 50 pages on it. It just shows the level of detail and how these 500 pages is just scratching the surface.”
Still, Jones considers the inquiry a success, one he attributes to the senators who took real political risks to back him and his team against the CIA.
“For those who worry that Congress is only dysfunctional, this is exhibit A to the contrary,” he said.
“This was a serious and high-stakes battle between two branches of government. And the legislative branch, in my view, ultimately won. I think our founding fathers would be very proud of Senator Feinstein and the others who worked to get this investigation completed and released.”
As the torture report receded into memory, Donald Trump won the Republican nomination, and presented an enthusiasm for torture uninterested in grappling with any critique around its immorality or ineffectiveness. Trump has pledged to bring back waterboarding “and a hell of a lot worse”.
The anti-torture law Feinstein and McCain passed is one impediment to CIA torture. But before 9/11, US laws were unequivocally against torture as well, and the adoption of torture arose due to political will driving creative lawyering. Brennan in April this year said he would refuse an order to bring back waterboarding, and in July said he would have to be fired rather than implement it. But he indicated that his departure would not necessarily be an impediment to a return to torture.
“If a president were to order the agency to carry out waterboarding or something else, it’ll be up to the director of CIA and others within CIA to decide whether or not that, that direction and order is something that they can carry out in good conscience,” he told the Brookings Institution.
The CIA’s clash with the Senate committee has faded. So has Brennan’s summer 2014 contrition, delivered to Feinstein, about spying on Jones and the committee staff. Brennan’s ire at the torture report has not.
On 9 February 2016, Brennan had a heated exchange with Wyden, who asked about the network search during an unrelated committee hearing. Brennan defended the agency’s actions and again implied that Jones had himself hacked the CIA: “Separation of powers between the executive and legislative branches, Senator, goes both ways.”
Speaking on 19 July to a friendly audience, the Intelligence and National Security Alliance, Brennan went further: “When I look at the Senate’s report on the detention interrogation program, it makes my blood boil, because although there’s a lot of things in there that were accurate, it really just focused on the shortcomings of the agency during that period in time.”
He continued: “If it was done in a more objective, nonpartisan and fair fashion, it would have put those shortcomings in better context. I fervently believe there was no agency more responsible for preventing a recurrence of 9/11 than the CIA. Unfortunately, that report I think misrepresented the totality of the worth of that program.”
Brennan has told colleagues that he wishes to remain CIA director under Hillary Clinton. In August, Morell published a New York Times op-ed excoriating Trump and endorsing Clinton, which intelligence observers understood as an audition to run Langley. For Jones, their apparent eagerness to lead the CIA is a reminder of a lack of accountability for torture and what he calls a “failed coverup” by CIA officials, aided by both the Bush and Obama administrations.
“Both Morell and Brennan are unfit to be CIA directors based off their response to the report, the way they responded to the Senate, how they view oversight. Under Brennan and Morell, the CIA is defending rectal rehydration as a ‘well-acknowledged medical technique’ – nothing to see here,” he said.
Wyden, speaking to the Guardian, said: “I’m exceptionally troubled by Director Brennan’s extraordinary efforts to resist vigorous congressional oversight. I certainly do not have confidence in the director.”
Obama has retained Brennan without a word of public criticism. He has kept his job despite the clash with his Senate overseers, just as CIA officials involved in the torture program and its misrepresentation to Congress, the Bush and Obama administrations, and the public still work at Langley.
“People who played a significant role in this program, who are in the report, continue to play significant roles in sensitive programs at the agency,” said Jones.
Carle, the former CIA officer and torture critic, disagrees that the agency needed to fire officials involved in torture to hold them accountable.
“I do know a number of officers whose careers were certainly impacted, if not derailed, as the result of all this stuff,” he said.
Speaking of Brennan’s reaction to the Senate report, Carle continued: “I know John. This was his least impressive moment. I and colleagues have been somewhat mystified that such an intelligent, subtle and open-minded man, on this point, reacted like Jose Rodriguez,” the retired CIA official and torture advocate whose destruction of videotaped interrogations began the Senate inquiry.
Udall, who had called for Brennan’s job in 2014, told the Guardian that he was “not aware that there has been accountability for what Director Brennan calls CIA’s ‘bad mistakes’.” But, he said, the CIA as a whole ought not to bear the blame for torture.
“We shouldn’t ascribe the bad behavior of some to all the employees of the CIA or of the intelligence community,” Udall said.
“The CIA writ large wasn’t responsible for developing, implementing and misrepresenting the truth about the CIA’s detention and interrogation program. In fact, a small number of CIA officers were largely responsible. It is unfortunate that the refusal of the CIA’s leadership to pursue accountability and tell the truth continues to tar the agency as a whole.”
Obama is more instinctively skeptical of the intelligence agencies than his potential successors, but the president who banned torture helped CIA officials implicated in torture endure at the agency. Obama’s deep relationship with Brennan and his early commitment not to “look backward” had profound consequences that will outlast his presidency.
“They avoided all the necessary reforms that have to happen at the CIA,” Jones said.
“To me, it’s a huge lost opportunity. Here’s an administration that came in and did all the right things within a few days, shutting down the program. But they didn’t want the independent commission. They said the Senate intelligence committee was the right place to do this. And to me, we were just never given a fair airing. No one from the White House would be briefed by us. They were briefed by the CIA.”
Udall agreed: “It is incumbent on the next administration to acknowledge these mistakes and institute the necessary reforms to restore the CIA’s reputation for integrity and analytical rigor.”
Carle is a rare former CIA official willing to praise the Senate torture report. “It captures exactly – exactly – the culture, reality, conversations, pressures, silences, actions, doubts, arguments that I lived. Absolutely, completely accurate.”
Asked if torture has left the CIA damaged, Carle said: “The CIA exists to go to the limit of what is acceptable. That’s part of what defines our raison d’être. That said, I think we did lasting harm to ourselves as an institution and as a country.”
The Senate investigation Feinstein led and Jones conducted into CIA torture is believed to be the largest in the legislative body’s 227-year history. In May 2016, the CIA inspector general’s office destroyed its only copy of the classified torture report. The agency, Yahoo reported, claims the destruction was accidental and that a copy of the report is held elsewhere at Langley. Referring to the ongoing transparency lawsuit, CIA spokesman Trapani said the agency will retain a copy “pending the final result of the litigation”.
Classified copies of the report, as well as the printed portions of the Panetta Review which Jones took in the fateful summer of 2013, remained in the Senate committee’s safe as of December 2015.
“It is my firm believe that the report will stand the test of time,” Feinstein told the Guardian, “and I am hopeful future administrations take the opportunity to learn from its conclusions.”
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