On Rereading the Torture Report – SSCI Focus Gave Too Many Perpetrators a Pass

I have an opinion piece in today’s New York Times Sunday Review provocatively titled (by the NYT editors), “Did the Torture Report Give the CIA a Bum Rap?” Why now, and why this intervention, some might ask?  Like many others, I commented on and wrote about the Torture Report when it was initially released in December, but the demands of the 24-hour news cycle meant that I – and I’m certain, everyone else who commented in that first week – did so without having had time to read the report and its responses in full.  The SSCI Report’s executive summary is 525 pages, and the responses by the CIA and the Republican minority members of the SSCI total 303 pages.  No one could possibly have read it all in those first few days.  And of course, by the time one could read it all, the news cycle had moved on.

But I have now read the released documents in full, and as I argue in the Times piece, having done so I am left with a very different impression.   In particular, the report’s focus on whether torture “worked” and whether the CIA lied about that issue seems misguided, and very possibly unfair to the CIA.  In the Times piece, I explain why the report is unfair in this regard, and why it matters.  In short, I conclude, the SSCI should have focused less on whether the tactics “worked,” and more on whether the tactics were legal.  Had it done so, the report would have offered a more comprehensive account of what went on. And since this may be the closest we come to official accountability, it is essential that we understand the problem in its full scope.

The SSCI report can be divided into two parts. The first, a detailed chronology of how the program developed, and how it went awry, is invaluable.  It’s a devastating account, one that the CIA largely does not dispute, and should play an important role in deterring future government officials from venturing down this road again.   It is nothing less than a service to the nation.

But the second part of the report, and frankly the part that got more emphasis from the committee and from the commentators (myself included), concerned the efficacy of the program, and the CIA’s claims in that regard. The SSCI examined 20 instances in which the CIA had asserted that information obtained from detainees subjected to coercive interrogations had helped capture terrorists and disrupt plots. In each instance, the SSCI points to evidence obtained from other sources, or from detainees before the CIA tortured them, that plausibly led to the captures and disruptions.  It then concludes that since the CIA claimed otherwise, it was lying.  This part of the report is also carefully and meticulously done.  It does not in any way read, as some have charged, as a strained effort to reach a predetermined result, but as a careful and thoughtful examination of the record.

But the CIA’s response goes through the same incidents, and in each case, makes a plausible case that in fact, information obtained from detainees after they were subjected to coercive tactics, did play an important part in leading the agency to the perpetrators.  The CIA’s response is also careful, meticulous, and detailed.  For details on some of their responses, see my Times piece.

To determine whose account is right would require, at a minimum, access to the underlying CIA documents, which remain classified.  But many of the CIA’s accounts are plainly plausible on their face.  I didn’t have space to discuss this in the piece, but I suspect that even if one saw the underlying documents, it would be difficult, and perhaps impossible, to resolve the disputes.  That’s because, as we saw with the 9/11 Commission, it’s one thing to connect the dots retrospectively, and another thing entirely to do so in real time. The reality is almost surely that many people were engaged in looking for terrorists, that they were sifting through thousands of bits of data, and that it may well be impossible in hindsight to reconstruct the actual links that led to a particular capture.  Reconstructing how any particular case was “broken” will often be susceptible to multiple different interpretations.

Reading these documents in full also led me to conclude that the SSCI should not have focused so intently on trying to prove that torture does not “work” — and that the CIA lied about that.  I doubt in the end that one could ever prove that coercion does not work.  Every individual is different, and while some suspects may react most positively to rapport-building, others may react to threats and coercion.  The prevalence of coercive interrogation around the world (and, in milder but still coercive forms at home), is surely in some part due to a sense that coercion works to get at least some suspects to talk some of the time.  And while it may, of course, lead them to lie, so, too, may rapport-building or indeed any form of interrogation.

The report should not have focused so much attention on whether the CIA’s tactics worked, and instead should have addressed the more important – and answerable — question, namely, whether they were illegal.   We ban torture not because it is ineffective, but because it is morally wrong to treat another human being in this way.  Could we imagine a Senate committee after the Civil War asking whether slavery “worked,” or after World War II asking whether genocide “worked.”  That’s the wrong question.

By focusing on whether the CIA’s program worked, and whether the CIA lied, moreover, the SSCI effectively gave a pass to others who were at least as culpable as the CIA in all of this: the Justice Department lawyers who authored repeated legal memos saying that these plainly illegal tactics were lawful; the Cabinet-level officials and their advisors who okayed a program that they should have known was patently illegal; and President Bush and Vice President Cheney, who also said yes when their obligation, under the law and morality, was to say no.   The problem here was not, as the SSCI report implies, a rogue agency that lied to everyone else. The problem was that no one with the authority to say no had the courage to do so – within and without the CIA. 

About the Author(s)

David Cole

National Legal Director of the ACLU and Professor at Georgetown University Law Center Follow him on Twitter (@DavidColeACLU).