CIA Torture Report: Oversight, But No Remedies Yet

The release of the executive summary of the Senate Intelligence Committee report on CIA’s post-9/11 interrogation program is, among other things, an epic act of record preservation.

Numerous CIA records that might not have been disclosed for decades, or ever, were rescued from oblivion by the Senate report and are now indelibly cited and quoted, even if many of them are not yet released in full.

That’s not a small thing, since the history of the CIA interrogation program was not a story that the Agency was motivated or equipped to tell.

“The CIA informed the Committee that due to CIA record retention policies, the CIA could not produce all CIA email communications requested by the Committee,” the report noted, explaining that the desired information was sometimes recovered from a reply message when the original email was missing.

Agency emails turned out to be a critical source of information, a fact that illuminates the Committee’s sharp response recently to the (now suspended) CIA proposal to the National Archives (NARA) to destroy most Agency emails of non-senior officials.

Thus, the gruesome record of the waterboarding of al Qaeda operative Abu Zubaydah “was referenced in emails, but was not documented or otherwise noted in CIA cables.” (This is at odds with NARA’s initial view that “It is unlikely that permanent records will be found in these email accounts that is not filed in other appropriate files.”)

The Committee report is also a remarkable demonstration of the congressional oversight function that is all the more impressive because it was performed in adverse, unfavorable conditions.

It is striking to see how the CIA sometimes treated the Senate Intelligence Committee, its leadership and its staff with the same disdain and evasiveness that is often perceived by FOIA requesters and other members of the public.

Committee questions were ignored, inaccurate information was provided, and the oversight process was gamed.

“Internal CIA emails include discussion of how the CIA could ‘get… off the hook on the cheap’ regarding [then-Committee] Chairman [Bob] Graham’s requests for additional information…. In the end, CIA officials simply did not respond to Graham’s requests prior to his departure from the Committee in January 2003,” the report said.

“I am deeply disturbed by the implications of the study for the committee’s ability to discharge its oversight responsibility,” wrote Sen. Angus King (I-Maine) in his additional remarks. “Because it appears from the study that the committee was continuously misled as to virtually all aspects of this program, it naturally raises the extremely troubling question as to whether we can trust the representations of the agency in connection with difficult or sensitive issues in the future.”

But minority members of the Committee disputed this characterization: “In reality, the overall pattern of engagement with the Congress shows that the CIA attempted to keep the Congress informed of its activities,” they wrote in their extensive dissenting views.

Perhaps the most important achievement of the Committee report was to document and memorialize the fact that agents of the US Government practiced torture. Not “harsh measures” or “enhanced techniques,” but torture.

Senator Susan Collins (R-Maine), who criticized what she said were methodological flaws in the Committee report, said in her additional views that “Despite these significant flaws, the report’s findings lead me to conclude that some detainees were subject to techniques that constituted torture. This inhumane and brutal treatment never should have occurred.”

By the same token, the most important omission from the report is the absence of any discussion of remedies.

Now that it is firmly established that “we tortured some folks,” as President Obama awkwardly put it, the question is what to do about it. Confession without atonement is incomplete.

Prosecution seems problematic for a number of reasons, including the difficulty of localizing responsibility, when it is entire institutions and not just particular officials that failed.

A different approach to the problem would start by considering the individuals who suffered abuse at the hands of the U.S. government, including a number of persons who were detained in error. Congress could now ask how some of them (i.e. those who are still alive) could be compensated in some measure for what was wrongly done to them.

Several previous efforts to seek remedies for torture were deflected by use of the state secrets privilege. In light of the detailed findings of the Senate Intelligence Committee report, that sort of evasion should be harder to sustain. Congress could accelerate a resolution of the problem with a focused investigation of what potential remedies are now feasible and appropriate.