The Unbelievably Shocking and Corrupt Tactics the CIA Used to Hide Their
Torture Practices
March 6, 2015
The following is an excerpt from Lords of Secrecy: The National Security Elite and America’s
Stealth Warfare [3] by Scott Horton. Reprinted with permission from Nation
Books [4].
PROLOGUE
ON MARCH 11, 2014, California Sen. Dianne Feinstein stepped to the well of
the Senate to deliver a speech exposing in stark terms a struggle between
congressional investigators and their oversight subject: the Central
Intelligence Agency. Feinstein was an unlikely critic of the practices of the
intelligence community. The wife of investment banker Richard C. Blum, who
managed enormous capital investments in corporations serving the American
defense and intelligence communities, Feinstein had distinguished herself among
Senate Democrats as a staunch CIA defender. In her long service on the Senate
Intelligence Committee, which she had chaired since 2009, Feinstein established
close personal ties with key senior agency figures—championing the candidacy of
former deputy director Stephen Kappes to head the agency after Barack Obama was
elected.
Patiently and meticulously, Feinstein unfolded the string of events that
led her committee to launch the most exhaustive congressional probe of a single
CIA program in the nation’s history. “On December 6, 2007, a New York Timesarticle
revealed the troubling fact that the CIA had destroyed video tapes of some of
the CIA’s first interrogations using so-called enhanced techniques,” she
stated.
CIA director Michael Hayden had assured congressional overseers that they
had no reason to be concerned: routine written field reports, what Hayden
called CIA operational cables, had been retained. These documents, Hayden said,
described “the detention conditions” of prisoners held by the CIA before it
decided to shut down the program as well as the “day-to-day CIA
interrogations.” Hayden offered the senators access to these cables to prove to
them that the destruction of the tapes was not a serious issue. Moreover, he
reminded them that the CIA program was a historical relic: in the fall of 2006
the Bush administration ended the CIA’s role as a jailer and sharply curtailed
its program of “enhanced interrogation techniques” (EITs)—specifically
eliminating techniques that most of the international community, including the
United States in the period before and after the Bush presidency, had viewed as
torture, such as waterboarding.
Nevertheless, the Senate committee had never looked deeply into this
program, and Hayden’s decision to offer access to the cables opened the door to
a careful study, which was accepted by then-chair Jay Rockefeller. Early in
2007, two Senate staffers spent many months reading the cables. By the time
they had finished in early 2009, Feinstein had replaced Rockefeller as
committee chair, and Barack Obama had replaced George W. Bush as president.
Feinstein received the first staff report. It was “chilling,” she said. “The
interrogations and the conditions of confinement at the CIA detention sites
were far different and far more harsh than the way the CIA had described them
to us.”
This first exploration of the dark side of CIA prisons and torture led
committee members to recognize a serious failure in its oversight
responsibilities. The committee resolved with near-unanimity (on a 14–1 vote)
to launch a comprehensive investigation of the CIA program involving black
sites and torture.
But the CIA was not simply going to acquiesce to a congressional probe into
the single darkest and most controversial program in the organization’s
history. Since it could not openly do battle with its congressional overseers,
the agency turned to a series of tactics that it had honed over the difficult decades
following the Church Committee inquiries of the mid-1970s. Throughout the
subsequent decades, the CIA complained loudly about the burdens of oversight
and accountability—while almost always getting its way.
Indeed, the dynamics had changed dramatically after the coordinated
terrorist attacks on the World Trade Center and the Pentagon on September 11,
2001. In the ensuing years, the CIA’s budget ballooned to more than double its
pre-2001 numbers. Moreover, it got the go-ahead to launch programs previously
denied or sidetracked, and clearance to encroach on the Pentagon’s turf through
extensive operations using armed predator drones. Washington, it seemed, had
forgotten how to say no to Langley. Still, the operation of the black site and
EIT program involves a strikingly different dynamic—because the spring that fed
it came not out of Langley but from the office of Vice President Dick Cheney,
inside the White House.
Senior figures in the CIA, including the agency’s senior career lawyer,
John Rizzo, fully appreciated that the black sites and the EITs presented
particularly dangerous territory. Exposure of these programs could damage some
of the agency’s tightest points of collaboration with foreign intelligence
services—authoritarian regimes such as Egypt, Jordan, Morocco, Pakistan,
Thailand, and Yemen, as well as among new democracies of Eastern Europe, like
Lithuania, Poland, and Romania. British intelligence had been deeply involved
and feared exposure, considering the domestic political opposition and the
rigorous attitude of British courts.
CIA leadership was also focused on the high likelihood that the program,
once exposed, would lead to a press for criminal prosecutions under various
statutes, including the anti-torture act. It therefore moved preemptively,
seeking assurances and an opinion from the Justice Department that would serve
as a “get out of jail free” card for agents involved in the program. But when
those opinions were disclosed, starting hard on the heels of photographic
evidence of abuse at the Abu Ghraib prison in Iraq—much of it eerily similar to
techniques discussed in the Justice Department opinions—a political firestorm
erupted around the world. The Justice Department was forced to withdraw most of
the opinions even before George W. Bush left Washington.
Leon Panetta, arriving at the CIA in 2009, found top management preoccupied
with concerns about fallout from this program.
The CIA chose to react to plans for a congressional probe cautiously, with
a series of tactical maneuvers and skirmishes. Its strategy was apparent from
the beginning: slow the review down while hoping for a change in the political
winds that might end it. And from the outset it made use of one essential
weapon against its congressional overseers—secrecy. For the agency, secrecy was
not just a way of life; it was also a path to power. It wielded secrecy as a
shield against embarrassing disclosures and as a sword to silence and threaten
adversaries. It was an all-purpose tool.
* * *
The agency’s first line of defense was to insist on what at first blush
were minor inconveniences: congressional staff could not sit in their offices
on Capitol Hill—not even if secured and cleared for the examination of
classified materials. Instead, they had to travel to a CIA-leased facility in
suburban Virginia to do so. Moreover, the investigators could not use
congressional staff computers for these purposes. Materials were to be
installed on “a stand-alone computer system” furnished by the CIA but with its
own “network drive segregated from CIA networks” and under the control of the
Senate. These requests seemed innocuous, and consequently Feinstein and her
vice chair, Missouri Sen. Kit Bond, agreed to them. Later these measures would
provide cover for more devious antics.
Before any materials could be turned over, the CIA insisted on its own
review to be certain that the documents were relevant to the committee’s
request and were not subject to a claim of executive privilege. As it turns
out, more than 6 million pages of documents were covered by the Senate request.
It would take many months to review them all—and that of course meant a delay
of many months before the Senate researchers could do so. The CIA, guided by
its lawyers, thus assumed a posture that was common for American corporate
lawyers engaged in high-stakes commercial litigation—“discovery warfare.”
The adversary’s requests for documents could not be denied but could be
slowed down, complicated, and subjected to privilege claims. But this was not a
billion-dollar battle between corporate giants with comparable legal rights. It
was an exercise of democratic process in which the Senate was discharging its
constitutional duty of oversight over an organ of the executive branch, the
CIA. The agency’s right to assert claims of privilege was at best legally
doubtful, and its insistence on the need to test the materials for relevance
was still thinner gruel. Even if irrelevant, the CIA would have no right to
withhold the documents from the investigators. Moreover, the Senate, and not
the CIA, was the ultimate judge of relevance for these purposes.
Even more absurd, in order to avoid wasting valuable man-hours of CIA
agents on this review process, the CIA proposed bringing in outside
contractors—not government employees—to complete it. In order to filter
submissions to its congressional overseers, the CIA decided to let another team
of persons, who otherwise would not have reviewed these documents, read and
evaluate all of them. As they did so, the review team simply dumped the documents
(which ultimately would amount to 6.2 million pages) on the committee, without
offering them any index, organization, or structure. Delay was clearly the
principal operating motivation for the CIA.
Furthermore, the CIA soon turned its skills of spycraft against its
congressional overseers. “In May of 2010, the committee staff noted that
documents that had been provided for the committee’s review were no longer
accessible,” Feinstein noted in her speech. When confronted about this, the
committee’s CIA interlocutors responded with a series of lies. First they
denied that the documents had been removed, then that it was a problem for
personnel servicing the computers. Finally they asserted that the “removal of
the documents was ordered by the White House.” But the White House denied this
and provided further assurance that the CIA would stop accessing the
committee’s computers and removing documents.
That same year, committee investigators made another curious discovery. As
the Senate committee was reviewing the documents, some CIA staffers were doing
the same and were preparing an internal memorandum that summarized them,
apparently intended as a document to brief Director Panetta. This document was
also delivered to the committee and reviewed by its investigators. It would
play a critical role after December 2012, when the committee delivered a
6,300-page study with a 480-page executive summary from its report to the White
House and CIA for review and comment.
True to its slow-walking strategy, the CIA took more than six months—until
June 27, 2013—to respond. When it did so, the earlier confidential response was
backed by the curiously coordinated crossfire of an assortment of actors—former
CIA directors and senior officials, disgraced former CIA agents whose
involvement in the torture program was documented in the report, and media
figures, often with close ties to the Bush administration authors of the
program.
Their message was simple: waterboarding has produced major breakthroughs
and disrupted actual terrorist plots, ultimately putting American Special
Forces in a position to kill Osama bin Laden in the Abbottabad raid of May 2,
2011. However, the CIA’s own records furnished no support for these claims.
This unofficial CIA response was driven heavily by apparent leaks from
within the agency, and the hand of Director John O. Brennan was later revealed
in the process. While the agency’s defenders concentrated their fire on
specific facts found and conclusions drawn by the report, it would turn out
that the CIA’s own internal review had come to most of the same conclusions.
This was hardly surprising, since both the committee and the CIA were
summarizing the same documents.
Both the internal Panetta report and the Senate committee report
scrutinized the documents and evidence and found nothing to support claims that
torture, particularly waterboarding, produced anything that materially advanced
the search for terrorist leaders or planned strikes; both apparently concluded
that these claims were unfounded. That produced intense embarrassment for the
CIA and exposed the CIA’s criticism of the Senate report as disingenuous—as
Feinstein noted, it stood “factually in conflict with its own internal review.”
Even more worryingly, while the Senate report was for the moment holding
back from policy recommendations and other action, it set the stage for a
high-stakes game on accountability for torture, including unexplained homicides
involving prisoners.
The CIA had thus far escaped meaningful accountability through a
combination of internal reviews and an independent examination of these
questions through a special prosecutor appointed by the Bush administration
Justice Department. In the end, the special prosecutor, John Durham, focused on
a handful of cases involving homicide. He did not exonerate those involved but
opted not to file charges on the basis of prosecutorial discretion. Durham had
apparently concluded that the prosecution would inevitably involve the
disclosure of highly classified information—including the Justice Department’s
authorization of torture and the CIA’s use of it—that would harm the interests
of the United States (or, more particularly, the Justice Department and CIA).
He therefore dropped the investigation, even though the evidence collected had
already proven sufficient in some instances for successful prosecutions in the
military justice system.
In the second half of 2013 and the early months of 2014, the feud between
the CIA and the Senate oversight committee continued to percolate. The roles
played by the White House and President Obama himself were consistently
ambiguous. On one hand, Obama assured Feinstein, other key members of Congress,
and significant supporters who felt strongly about the issue that he was
“absolutely committed to declassifying that report.” On the other hand, aides
quickly clarified that it meant only the 480-page executive summary,and
only after the CIA and other agencies had reached a consensus with the White
House on redactions from the report.
Obama’s key spokesman on the issue continued to be his former
counterterrorism adviser, John O. Brennan, a career CIA man whose own
involvement with the program was never fully clarified, and whose hostility to the
Senate investigation and report could hardly be contained. By March 2013,
Brennan had succeeded Panetta as head of the CIA.
As this controversy developed, it became clear that Senate investigators
had read the agency’s own internal review and therefore knew that the agency’s
criticisms of the report were specious. This had stung figures at the CIA who
were trying to manage the fallout from its torture and black site programs. The
CIA never actually contacted the Senate committee and asked how it had come by
the Panetta review. Instead, perhaps convinced that the information had been
gained improperly (though that is a strange word to apply to an oversight
committee’s examination of documents prepared by the agency it is overseeing),
someone at the agency decided to break into the Senate computers and run
searches.
On January 15, 2014, Brennan met with Feinstein and had to acknowledge that
the CIA had run searches on the Senate computers. Far from apologizing for this
intrusion, Brennan stated that he intended to pursue further forensic
investigations “to learn more about activities of the committee’s oversight
staff.”
The Senate committee responded by reminding Brennan that as a matter of
constitutional separation of powers, the committee was not subject to
investigation by the CIA. It also pressed to know who had authorized the search
and what legal basis the CIA believed it had for its actions. The CIA refused
to answer the questions.
By January 2014, before Feinstein gave her speech, the controversy had reached
a fever pitch. Reports that the CIA had been snooping on the Senate committee
and had gained unauthorized access to its computers began to circulate in the
Beltway media. Through its surrogates, the CIA struck back. Unidentified agency
sources asserted that Senate staffers had “hacked into” CIA computers to gain
access to the Panetta report and other documents. The staffers had then
illegally transported classified information to their Capitol Hill offices,
removing it from the secure site furnished by the agency.
In addition, the Justice Department had become involved. The CIA inspector
general, David Buckley, had reviewed the CIA searches conducted on Senate
computers and had found enough evidence of wrongdoing to warrant passing the
file to the Justice Department for possible prosecution. Perhaps in a
tit-for-tat response and certainly with the aim of intimidating his
adversaries, the acting CIA general counsel, Robert Eatinger, had made a
referral of his own, this time targeting Senate staffers and apparently
accusing them of gaining improper access to classified materials and handling
them improperly. Secrecy was unsheathed as a sword against an institution
suddenly seen as a bitter foe: the US Congress.
Scott Horton is a contributing editor at Harper’s magazine
and a recipient of the National Magazine Award for reporting for his writing on
law and national security issues. Horton lectures at Columbia Law School and
continues to practice law in the emerging markets area. A lifelong human rights
advocate, Horton served as counsel to Andrei Sakharov and Elena Bonner, among
other activists in the former Soviet Union.
[6]
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[4] http://www.publicaffairsbooks.com/nation-books
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[6] http://www.alternet.org/
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[2] http://www.nationbooks.org/
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[4] http://www.publicaffairsbooks.com/nation-books
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[6] http://www.alternet.org/
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