The Cost-Benefit Analysis: The Preventive Value of the Senate Torture Report

Amidst the full-throated defense of the CIA’s interrogation tactics (see, e.g., Cheney – “I’d do it again”), the President’s refusal to state whether or not abusive interrogations yielded actionable intelligence, John Brennan’s suggestion that future administrations might want to resurrect the use of enhanced interrogation techniques, and the dominant assumption that the perpetrators of torture and other abusive interrogation practices will escape prosecution, at least in the United States,  it is easy to wonder what will keep us from repeating the same mistakes again.

The Senate Report provides the answer.

Read it. Disagree with it. Question it. But whatever one thinks about whether or not the Senate should have interviewed CIA officials, and whatever one thinks about some of the overarching conclusions, one key takeaway seems beyond dispute: No future administration official can assume that future uses of torture and abuse – or any other top secret government programs – will be forever shielded from the public eye.

We know this from the Snowden revelations. We know this from the reporters and other outside groups began uncovering the existence of secret prisons and use of so-called “enhanced interrogation techniques” years ago.  And we now have the Senate Torture report, along with the detailed rebuttals, to confirm it.   Actions that were meant to be permanently shrouded in secrecy, that weren’t even initially revealed to then-Secretary of State Colin Powell for fear that he would “blow his top,” and that were intentionally designed to evade judicial review, are now being debated on media outlets all over the world.

Proponents of the CIA’s actions are quick to remind us that the costs of such disclosures are high. They cite the increased threat levels to U.S. personnel abroad, the potential loss of intelligence cooperation with key allies, and the potentially negative effect on the fight against ISIS. They are right to be concerned. The costs are enormous. Let’s catalog just a few: 

First, even before the release of the report the CIA’s actions were causing significant friction with key allies. The report indicates that media reports as early as 2005 and 2006 led to allies curtailing intelligence cooperation with the United States and demanding the closure of detention centers on their soil.  Any future administration will have to grapple with the fact that no nation is going to want to partner with a revitalized CIA detention and interrogation program, or any other U.S.-initiated torture or abuse, for fear that their involvement will be disclosed.

Second, as a corollary of the first, there has been fall out for other operations. Starting in late 2005, for example, NATO and Canadian forces in Afghanistan reused to turn over detainees to the U.S. custody due to fears of potential mistreatment. (Detainees were instead turned over to Afghan National Directorate of Security, also well-known for its use of torture and abuse.)

Third, as we have learned the hard way, there is no satisfactory end game when one start with torture and other abuse. A disposition plan proposed for Abu Zubaydah was “isolation and incommunicado” for the remainder of his life – otherwise known as a perpetual state of enforced disappearance. The trials of Khalid Sheikh Mohammed and the other masterminds of 9/11 are now forever tainted by torture and other abuse, and other prosecutions were halted before they even began because of the gaining of key evidence.

Fourth, even apart from the immediate jump in the threat level, there is a real risk to U.S. persons abroad over the long-term, given the possibility that our enemies will seek to replicate interrogation techniques they now know were employed by the CIA.  Already, we have seen American hostages forced to wear orange jumpsuits, mimicking the orange jumpsuits worn by detainees in Guantanamo Bay.  The consequences of CIA practices being mimicked as well is devastating.

Fifth, the ability to promote the United States’ agenda, which as Senator John McCain reminds us, includes the promotion of our values and ideals, is significantly undercut by the revelations of the United States’ actions. It is hard to be demanding that other nations abide by the rule of law when we are seen as ignoring long-standing and non-derogable prohibitions on torture.

Sixth, the officials involved, while likely to escape prosecution in the United States, are nonetheless at risk of prosecution elsewhere. At a minimum, officials that were involved in the development of the interrogation program and are named in the report are likely to avoid international travel for the near future, given the possibility that other nations might seek to arrest and prosecute them.  Few responsible leaders would want to expose their employees to such a risk.

Hence the optimism. Even if one could somehow read through all the available reporting and still believe that the incommunicado detentions and abusive interrogations were somehow justified or lawful, how could it possibly be worth the costs? 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).