Congress, Constitutional Law, Criminal law

SENATE REPORT: U.S. TORTURE PROGRAM “MORE BRUTAL” THAN PREVIOUSLY DISCLOSED AND CIA OFFICIALS GAVE FALSE INFORMATION TO CONGRESS

CIAsenate_large_seal The Senate report is out and linked below. It is remarkable in both its candor and breadth. I was particularly moved by watching Sen. John McCain, a victim of torture, explaining to his colleagues why this country must not only condemn this torture program but come clean about our failure to meet the fundamental values that define us as a people. It was a true profile of courage — an all too rare moment in our contemporary politics where a politician transcends politics and stand boldly on a higher moral ground. What McCain showed was the difference between a politician and a statesman. He proved himself to be the latter this afternoon.


220px-john_mccain_official_portrait_with_alternative_background225px-dianne_feinstein_official_senate_photoWhile I have been critical of Feinstein in the past, I considered this speech to be also her finest hour. While I have criticized the lack action from the committee over the years on this issue, Feinstein did overcome considerable pressure from the intelligence community to bury the report. As the video below shows, McCain called the use of the torture was “shameful” regardless of whether it was effective.

What is most remarkable is the direct identification of people like Hayden, Muller, and others who are accused of giving false information to Congress. This record is combined with the admission that dozens of videotapes were destroyed shortly after the CIA was informed that the legality of the program had been raised. The absence of any criminal charges creates an obvious and troubling disconnect given this lengthy account.

It was equally chilling to not only read of the death of one detainee of possible hyperthermia but the fact that two psychologists created a company and received $80 million for their clearly unethical role in the torture program.

Notably, while the President has repeated his condemnation of the program, there remains a disconnect with the actions of his Administration. The CIA continues to oppose the release of the report and, more importantly, shows a continuing failure to appreciate the depth of the criminal character of this torture program. The CIA issued a statement that again claims that the program was “effective.” As I have discussed in prior columns, it does not matter whether torture is effective or ineffective. It is not just a crime but a war crime. The continued effort of the CIA to claim that it got something positive from torture only reaffirms the view of a rogue agency.

Here is the report: Senate Report

386 thoughts on “SENATE REPORT: U.S. TORTURE PROGRAM “MORE BRUTAL” THAN PREVIOUSLY DISCLOSED AND CIA OFFICIALS GAVE FALSE INFORMATION TO CONGRESS”

  1. I hope people realize that this report would not be made had it not been for John Kiriakou (sorry for prior misspelling) who, is behind bars for confirming it’s existence… For all we know, had it not been for him or some other whistle blower, we might still be interviewing Mike Hayden on TV granting him a platform to keep on catapulting the propaganda…

    CIA Had Propaganda Campaign Which Involved Leaking Classified Information to Sell Torture
    http://dissenter.firedoglake.com/2014/12/10/cia-had-propaganda-campaign-which-involved-leaking-classified-information-to-sell-torture/
    http://static1.firedoglake.com/47/files/2014/12/Screen-shot-2014-12-10-at-12.33.28-PM.png

  2. Eric:

    Since I still have a day job, I am unable to respond as quickly as I would like to comments that I believe merit a response. There have been a number of rather disturbing posts on the subject of torture, but I will focus here only on what I perceive to be your erroneous, and even dangerous, explication of the doctrine of implied repeal. Since I have been a trial and appellate lawyer for forty years, I have more than a passing knowledge of the rules of statutory interpretation. Most of them, as you know, are of common law origin.

    As far as I can tell, the earliest reference to implied repeal appears in a case decided by Lord Coke in 1614 in which he notes that it has application only in situations in which the provisions of two statutes are “plainly repugnant” to each other. Dr. Foster’s Case, 77 Eng.Rep. 1222 (K.B. 1614).

    Here in Florida the courts have consistently held that a later statute will not be found to implicitly repeal provisions in a prior statute unless “irreconcilable conflict between the later statute and the earlier statute shows legislative intent to repeal.” Olmstead v. Federal Trade Commission, 44 So.3d 76 (Fla. 2010). The Olmstead decision was rendered in response to a question certified by the 11th Circuit Court of Appeal.

    An illustrative example of the correct application of the doctrine can be found in the case of Town of Indian River Shores v. Richey, 348 So.2d 1 (Fla. 1977). In that case a municipal ordinance prescribed the qualifications and registration procedures for voters residing in Indian River Shores. The court held that a later adopted state statute standardizing the requirements for all Florida voters superseded the local ordinance and impliedly repealed any conflicting provisions.

    In short, there are several elements which must be satisfied before a later statute will be deemed to wholly or partly repeal a prior statute. First, the two statutes must contain conflicting language. Second, the conflict must be “plainly repugnant” or “irreconcilable.” Third, effectuation of the later statute must logically compel the conclusion that the legislative body intended to revoke or repeal the conflicting provisions in the prior statute.

    The cases also uniformly hold that implied repeal is not favored in the law. The reason for that, of course, is that courts are obligated to reconcile statutory conflicts whenever possible in accordance with the rule that all statutory enactments are presumed to be valid and binding statements of legislative intent and should be given effect if that can be accomplished.

    Your effort to apply the doctrine to a perceived conflict between the AUMF and laws prohibiting torture fails because none of the elements necessary to invoke the doctrine are present. A directive to take “necessary and appropriate” action, or words to that effect, in order to accomplish a specific military purpose, does not create a conflict with the laws governing the conduct of war in any respect.

    Your argument to the contrary attempts to create an implied conflict by ascribing a strained meaning to the relevant phrases. More specifically, your argument relies on the premise that the President could reasonably read the authorization to mean that he or she may take such measures as he or she may deem necessary or desirable without reference to legality. The problem is that this approach violates the first rule of statutory construction, which is that words in a text are to be given their ordinary and customary meaning.

    Your argument is also dangerous because it advances the notion that presidential power is presumptively unlimited in the absence of specific limitations imposed by Congress. This is an extension of the Cheney doctrine, the false theory of the unitary executive. It is also a virtual invitation to tyranny.

  3. Dear President Barack “only look forward” Obama,
    The Nation now looks forward to the prosecution of Bush era torture architects.

  6. IF/THEN

    TORTURE = Enhanced interrogation

    then

    RAPE = Enhanced sexual experience

    How much longer will America keep playing like it’s 1984 doubleplus good?

  7. OK
    So here’s a question:
    Will John McCain, since McCain is now calling the CIA out as this being the “greatest stain” on America, will he support the defunding of the CIA or will he leave it in place?

  11. Senator John McCain in 2008…
    Voted to keep torture in place.
    Allowed “additional techniques”…

  12. Carol
    Precedence… e.g. #1
    http://s.hswstatic.com/gif/water-boarding-1.jpg
    This picture of US soldiers supervising the waterboarding of North Vietnamese prisoners was published in a US newspaper in 1968, resulting in an investigation and convictions. [Source: Bettmann / Corbis]

    Because the CIA wasn’t up to speed destroying evidence then, this US soldier was convicted of acts of WAR CRIMES for water boarding (aka water TORTURE)

  13. It is amazing how some people can excuse torture for political reasons. Even John McCain, who has some skin in the game, agrees that it was torture. Even if you do not “believe” the Senate report, it makes no difference whether torture is legal. It is illegal under domestic law and international law. This document comes right out of the emails of the CIA. People should be in jail.

  15. Paul C
    I’ll put it this way:
    Any man that can confuse consensual sex with acts of RAPE either has a rape in his background he’s running from or is attempting to excuse some future RAPE he may or may not commit… Or has lost his white all together.

    Shaking my head…

  16. Paul C
    Go ahead and purposefully excuse and confuse this issue with consent vs. non consensual.

    Again, we RAPED some folks.

    how confused are you?0

  17. Up next:
    “It was just a few folks…”

    And thus the Manson defense rests your Honor…
    It was just a few folks.

    1. Max-1 – given the circumstances behind this report I have problems with the whole report.

    1. Max-1 – a one-sided report is released by the Senate, even you cannot buy into all of the crap they are laying out there.

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