Our fierce fight over torture

By Ari Melber
March 13, 2014

The new Congress versus the CIA battle over “hacking” Senate computers and “spying” isn’t about surveillance. It’s about torture.

We have never had a full reckoning for our government’s use of torture on terror suspects after September 11. There were no prosecutions of military officers or senior officials. (One soldier was imprisoned for abuse at the Abu Ghraib prison, former Corporal Charles Graner, while four officers received administrative demerits, not prosecution.) Remarkably, there has not even been a full release of classified government investigations into U.S. torture. It’s hard to get accountability in the dark.

That repressed history is the real context for the remarkable fight that spilled into public view when Senator Dianne Feinstein (D-Calif.) spoke on the Senate floor on Tuesday.

There have been attempts by Congress, human rights groups and the press to pursue information about the torture — or “enhanced interrogation” program — that the Bush administration’s CIA began in 2002.

The exposure of torture at Abu Ghraib prison in Iraq appeared in a 2004 Seymour Hersh article in the New Yorker, not from the government. Further public reports pushed President George W. Bush to disclose and defend the program in 2006.

Leaks then surfaced about crucial evidence that documented some interrogation sessions, which could factually resolve debates between the administration and critics over how far the interrogation went. The CIA had recorded the interrogation sessions. Before Congress or independent investigations could review the video tapes, however, the CIA’s lawyers destroyed them in 2007. In many contexts, that action alone is a crime — obstruction of justice.

Congress responded to the destruction of the tapes by launching a limited review of those interrogations. In 2009, the review found the CIA sessions were different, and far harsher, than the agency had claimed.

This drove the usually hawkish Senate Intelligence Committee, headed by Feinstein, to a bureaucratic breaking point. Faced with the CIA’s apparent misrepresentations and possible criminal obstruction to cover up a possible crime, the panel held a bipartisan vote to conduct a full investigation.

The revelations about the CIA’s continued efforts to subvert that investigation is what sparked the current constitutional crisis — and the unusual floor speech by Feinstein, a longtime CIA ally.

Feinstein recounted how her committee “voted 14 to 1 to initiate a comprehensive review of the CIA detention and interrogation program,” because it learned “the interrogations and conditions of confinement at the CIA detention sites were far different and far more harsh than the way the CIA had described them to” Congress.

She recounted how Senate investigators strained to accommodate CIA requests for this “independent” review, such as going to a CIA site to review digital files that remained under the agency’s control. When the CIA learned that the Senate staff found incriminating internal CIA notes about the files, which reportedly contradicted the CIA’s public claims about the program, Feinstein said the CIA began looking into the Senate investigators’ work.

In other words, the CIA began investigating the investigators.

Feinstein says that act may be illegal, violating “the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance.”

CIA Director John Brennan responded with a parsing denial, saying there has not been a “tremendous” level of CIA spying or hacking of Congress. What about, say, a small amount of illegal spying?

Other statements from Brennan and administration officials lean heavily on capacious words like “hacking” and “spying,” which have notoriously vague meanings, and plenty of wiggle room.

It doesn’t stop there. The most dangerous part of this crisis does not turn on the definition of hacking. It doesn’t depend on whether the CIA maliciously tried to kneecap the investigation, or just found ways to accidentally kneecap it.

The most dangerous move came from what the CIA did with the information that it gleaned from monitoring the Senate.

A top CIA lawyer took one of the most severe legal actions possible — officially asking the Justice Department to consider prosecuting the Senate investigators for doing their jobs.

Feinstein, backed by colleagues in both parties, said this tactic is an illegitimate attempt to get Senate staff to back off.

“There is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime,” she said on the Senate floor. “I view the acting general counsel’s referral as a potential effort to intimidate this staff — and I am not taking it lightly.”

This week, I spoke with congressional staff members who said even a small risk of prosecution for investigating the CIA would have a chilling effect.

Feinstein also drew a direct line from the CIA’s aggressive, provocative move, which threw the grenade of a separation of powers crisis into President Barack Obama’s Justice Department — back to exposing the history of torture. Where this all started.

“The staff members who have been working on this study and this [torture] report have devoted years of their lives to it,” she explained, “They are now being threatened with legal jeopardy, just as the final revisions to the report are being made so that parts of it can be declassified and released to the American people.”

These are remarkable public charges from one of the intelligence community’s most experienced allies in Congress — that when it comes to covering up torture, the CIA will try to criminalize public service and oversight itself.

This is not an academic exercise. The CIA’s moves already have practical consequences.

Right now the Justice Department, which closed its own criminal investigation into torture by U.S. officials with no charges, is reviewing a high-level referral to investigate and possibly charge U.S. officials for investigating torture.

This is more than backward — it is dangerous for our separation of powers. Do we have a functioning democracy? Or are we sliding into a system where there are checks and balances for the rest of us, but no rules for the CIA?

Obama largely ducked the big questions on Wednesday, saying the investigations will play out, but he is “absolutely committed to declassifying” the torture report.  But it is Obama’s employee, Brennan, who has been fighting that declassification.

So who is in charge here? The president either needs to get his CIA director in check, or get a new CIA director.

 

PHOTO (TOP): A demonstration outside the Supreme Court in Washington, 2005. REUTERS/Larry Downing

PHOTO (INSERT 1): President George W. Bush, Vice President Dick Cheney (C) and Secretary of Defense Donald Rumsfeld arrive to speak at the Pentagon, May 10, 2004.  REUTERS/Kevin Lamarque

PHOTO (INSERT 2): Senator Dianne Feinstein (D-Calif.) (C), chairman of the Senate Select Committee on Intelligence, speaks to reporters after departing a full-Senate briefing at the Capitol in Washington, June 13, 2013. REUTERS/Jonathan Ernst

Photo (INSERT 3): White House counterterrorism advisor John Brennan (R) listens as President Barack Obama nominates him to become the next CIA director at the White House in Washington January 7, 2013. REUTERS/Kevin Lamarque

11 comments

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If you have been part of assasinations and torture and spying yourself it is very hard for us who are listening now to believe that you have a true concern about torture and are trying to prevent it. I mean, that congress has and still does agree with most of the regression of american freedoms and the assasinations of americans and foriegn leaders and the drug/cia/police state in the US and the other great things we do over the world at the behest of the the few who control our banks and most of the money. If you were actually trying to fix this you might be assasinated yourself. So, this is just probably posturing to give the gullible among us the oportunity to have an excuse for living in a facist state that tortures and creates wars and other emergencies so that the population is frightened and easy to control for the 1% who have all the power and money.

I always wonder if Obama realized before being president or visiting the bilderbergers who was realy in charge. He does support them now, but was he coerced like Carter? The others (reagan, bush, clinton, and bush) were all in from the get go.

Posted by brotherkenny4 | Report as abusive

By the way Dianne, the CIA has weaponized cancer, so you might want to think about that and perhaps lighten up on the hair spray and makeup, which are also cancer causing.

Posted by brotherkenny4 | Report as abusive

How did we let the conservatives take our civil liberties? How could we get SO SCARED we let the Bad Guys take over, inflicting upon us the Republican Police State?

What do we do about it??

Posted by gkam | Report as abusive

I think the article’s last two paragraphs are key. The Justice Department and CIA Director report to the President and serve at his pleasure. It is clear who ultimately has the authority and responsibility to fix this.

Republican/Democrat; it doesn’t matter. Terms like ‘Republican Police State’ are laughable when it is the Democratic President’s Justice Department appointees who are threatening prosecution of the people doing the investigation.

Posted by Randy549 | Report as abusive

John Brennan is lying. It’s time to get rid of him. Then prosecute him.

Posted by bryanric | Report as abusive

Yeah, lets all get upset that some scumbags who would be more than willing to blow up your kid’s entire school… may have been made to feel a little uncomfortable, while somebody poured some cold water in their face. Great priorities.

Just go back to your nice safe, white, suburban home Diane… Everything will be fine. Leave the safety of the country to the people who are actually anchored in reality. Maybe you could work on something more appropriate for your abilities, like running all the businesses out of CA, or outlawing plastic grocery bags.

Posted by dd606 | Report as abusive

The CIA does not follow the rules…look at what happened to me! I am a victim of CIA intimidation and harassment…and if you need help and report it…no one listens. THERE IS NO CIA OVERSIGHT!
See my blog for yourself:
http://djmatthewreece.blogspot.com

Posted by MatthewReece | Report as abusive

“The new Congress versus the CIA battle over “hacking” Senate computers and “spying” isn’t about surveillance. It’s about torture.”

Its not just about torture either. Its about interference with a congressional investigation. Almost like when Nixon fired the AG because he didnt want him investigating Watergate.

Posted by adamrussell | Report as abusive

“Yeah, lets all get upset that some scumbags who would be more than willing to blow up your kid’s entire school… may have been made to feel a little uncomfortable, while somebody poured some cold water in their face.”

I’m pretty sure it was more than just water-boarding, dd606. Not that you would care. Filth like you will do anything to feel safe – even support a vicious police state which spies on and, very soon now, tortures it’s own citizens.

Wait until it happens to YOU, or someone you care about.

Posted by SmartThinking | Report as abusive

The other problem is: Who is telling the truth? After all, all of these people are in the business of lying for a living… Pols lie… Spies lie…

Posted by edgyinchina | Report as abusive

There is no “proper” amount of torture in civilized society. If lawyers and politicians have to debate whether something is moral, ethical, or legal, you can be pretty sure it’s none of the above. Trying to play with semantics so that human beings become “enemy combatants”, and torture morphs into the tech-sounding “enhanced interrogation techniques”, you know we have lost only the “war” on terror, but the moral high ground as well. In other words, we become the very thing we are supposed to be fighting, while destroying everything noble and praiseworthy we once were.

Mark Twain said, “Patriotism is loving your country while mistrusting your government.” We have let a small, evil bunch of criminals in Washington and Wall Street flip that maxim on it’s head. And unfortunately the entire planet is paying the price.

Posted by h5mind | Report as abusive