Roving thoughts and provocations

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The CIA’s Poisonous Tree

David Levine

The old Washington adage that the cover-up is worse than the crime may not apply when it comes to the revelations this week that the Central Intelligence Agency interfered with a Senate torture investigation. It’s not that the cover-up isn’t serious. It is extremely serious—as Senator Dianne Feinstein said, the CIA may have violated the separation of powers, the Fourth Amendment, and a prohibition on spying inside the United States. It’s just that in this case, the underlying crimes are still worse: the dispute arises because the Senate Intelligence Committee, which Feinstein chairs, has written an as-yet-secret 6,300 page report on the CIA’s use of torture and disappearance—among the gravest crimes the world recognizes—against al-Qaeda suspects in the “war on terror.”

By Senator Feinstein’s account, the CIA has directly and repeatedly interfered with the committee’s investigation: it conducted covert unauthorized searches of the computers assigned to the Senate committee for its review of CIA files, and it secretly removed potentially incriminating documents from the computers the committee was using. That’s the stuff that often leads to resignations, independent counsels, and criminal charges; indeed, the CIA’s own Inspector General has referred the CIA’s conduct to the Justice Department for a potential criminal investigation.

But the crime that we must never lose sight of is the conduct that led to the investigation in the first place. To recall: in 2002, shortly after the 9/11 attacks, the Bush administration authorized the CIA to establish a series of secret prisons, or “black sites,” into which it disappeared “high-value” al-Qaeda suspects, often for years at a time, without any public acknowledgment, without charges, and cut off from any access to the outside world. The CIA was further authorized to use a range of coercive tactics—borrowed from those used by the Chinese to torture American soldiers during the Korean War—to try to break the suspects’ will. These included depriving suspects of sleep for up to ten days, slamming them against walls, forcing them into painful stress positions, and waterboarding them.

The program was approved by President Bush himself, as well as Vice-President Dick Cheney, National Security Adviser Condoleezza Rice, Defense Secretary Donald Rumsfeld, Secretary of State Colin Powell, Attorney General John Ashcroft, and CIA Director George Tenet. John Yoo and Jay Bybee, Justice Department lawyers, wrote memos to whitewash the program. These acts were war crimes under the laws of war and grave human rights abuses. Yet no one has yet been held accountable for any of them. And the investigation by the Senate Intelligence Committee is until now the only comprehensive effort to review the extensive classified CIA records about the program.

Even before the investigation began, the CIA appears to have been aware that its interrogation practices might not withstand scrutiny. The intelligence committee’s investigation was itself sparked by a CIA agent’s destruction of ninety-two videotapes of the agency’s actual interrogations. According to accounts by former CIA officials, twelve of the tapes documented the use of “enhanced interrogation techniques,” including waterboarding. One tape showed al-Qaeda suspect Abu Zubaydah, apparently screaming and vomiting. In 2012, John Rizzo, who was the CIA’s acting general counsel at the time the tapes were made, told the BBC that a US intelligence official who reviewed the footage had found that “portions of the tapes, particularly those of Zubaydah being waterboarded, were extremely hard to watch.”

But we cannot know for certain what was on the tapes, because in November, 2005, Jose A. Rodriguez, Jr., the head of the CIA’s Directorate of Operations, the agency’s clandestine service, ordered them destroyed. He did so over the stated objections of the White House Counsel and the Director of National Intelligence, and despite their obvious relevance to numerous possible criminal investigations—of the suspects interrogated and of the CIA itself.

In 2007, when the New York Times first reported that the CIA had destroyed interrogation tapes, the Senate Intelligence Committee launched an inquiry. The CIA assured the committee that the tapes’ destruction would not hinder review of its program, because it had many cables contemporaneously describing the interrogations in detail. (These would of course be the CIA’s descriptions of what was done, not an actual record of what was done.) The intelligence committee requested access to those documents. The CIA replied, in Senator Feinstein’s words, with a classic “document dump,” giving the committee literally millions of documents, entirely unorganized and unindexed, presumably hoping to overwhelm their limited resources.

The CIA refused to allow the Senate staff to use their own computers to review the documents, insisting that they be reviewed in a separate CIA-leased facility. According to an agreement worked out between the Committee and the CIA, the agency was to provide the committee with a

’stand-alone computer system’ with a ‘network drive’ ‘segregated from CIA networks’…that would only be accessed by information technology personnel at the CIA—who would ‘not be permitted to’ ‘share information from the system with other [CIA] personnel, except as otherwise authorized by the committee.’

It soon became clear, however, that the CIA had violated the agreement. In 2010, Feinstein explained,

I learned that on two occasions, CIA personnel electronically removed committee access to CIA documents after providing them to the committee. This included roughly 870 documents or pages of documents that were removed in February 2010, and secondly roughly another 50 were removed in mid-May 2010.

Feinstein took the matter to the White House, and the CIA was compelled to apologize and to reaffirm its commitment not to interfere with the investigation. But when the CIA later learned that one of the documents the committee had received was the agency’s own internal review of the cables, directed by then-director Leon Panetta, it covertly searched the committee’s files yet again.

Why the concern over the internal review? From Feinstein’s perspective, the CIA’s real worry is that this internal review corroborates her committee’s findings about the CIA’s own abuses—and contradicts a subsequently drafted official CIA response that tries to deny or minimize CIA abuses. As Feinstein put it, “What was unique and interesting about the internal documents was not their classification level, but rather their analysis and acknowledgement of significant CIA wrongdoing.” Apparently the CIA was willing to give the Senate committee access to all evidence except the smoking gun.

So blatant is this obstruction that the CIA’s own Inspector General referred the matter to the Justice Department for a potential criminal investigation of CIA staff. In what appears to be retaliation, the CIA’s acting general counsel, Robert Eatinger, in turn asked the Justice Department to investigate the Senate committee staff regarding their access to the internal review. Eatinger, Feinstein notes, previously oversaw the CIA’s interrogation program, and is himself mentioned by name some 1,600 times in the Senate committee’s report. Evidently, however, he saw no conflict of interest in requesting a Justice Department investigation of those reviewing his own conduct.

How this controversy ultimately gets resolved, Feinstein rightly noted, “will show whether the Intelligence Committee can be effective in monitoring and investigating our nation’s intelligence activities, or whether our work can be thwarted by those we oversee.”

But even more urgent than resolution of the inter-branch dispute, is the release of the intelligence committee’s 6,300-page report. Though the committee adopted the report in December 2012, not one word of it has yet seen the light of day. That the investigation has gone on so long, cost so much (reportedly $50 million), resulted in such an extensive report, and still not been seen by the public, reflects the gravity of what is at stake here. The nation’s highest officials coldly approved war crimes and human rights abuses—and to date, no one has been held accountable in any manner for doing so.

As I have argued before, accountability comes in many forms; there is little likelihood that former officials will be criminally prosecuted, even after the report is issued. But an official report can itself be a form of reckoning. In both Canada and the United Kingdom, official inquiries have served exactly that purpose, after the US rendition of Canadian Maher Arar to Syria, and after the UK’s detention and coercive interrogation of suspected IRA members. A secret report, however, is no accountability at all. In an encouraging sign, President Obama on Wednesday said that he favors making the report public so that the American people can judge for themselves the CIA’s conduct. You can bet the CIA will fight tooth and nail to frustrate that pledge. We must insist that President Obama keep this promise.

In law, we say that torture “taints” an investigation. The legal doctrine that precludes reliance on evidence obtained from torture is called the “fruit of the poisonous tree” rule. But as this latest saga reflects, torture does far more than merely “taint” evidence. It corrupts all who touch it. The CIA’s desperate efforts to hide the details of what the world already knows in general outline—that it subjected human beings to brutal treatment to which no human being should ever be subjected—are only the latest evidence of the poisonous consequences of a program euphemistically called “enhanced interrogation.”

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