TRUTH WILL OUT: THE SENATE REPORT CONTAINS SOME INCONVENIENT TRUTHS

senate_large_seal200px-CIA.svgBelow is my column today in USA Today on the torture report. This is the slightly longer version that ran on the Internet.
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As Shakespeare wrote in the Merchant of Venice, “truth will out.” The release of the report of the Senate Intelligence Committee was the long-awaited truth about one of this country’s most shameful chapters. Like water, truth has a way of finding its way out even against the determined obstruction. However, the question is what truth came out this week in the hundreds of pages of highly disturbing, and often disgusting, details of the “enhanced interrogation” program.

There are obvious “truths” about waterboarding being a crime and how torture is a poor vehicle for obtaining intelligence.

Then there are truths that are less obvious but equally clear in the pages of this report. Here are three such inconvenient truths that emerge from the Torture Report:

Truth #1: The CIA proved it is immune from legal restraints

As damaging as this report is to the reputation of the Agency, it reaffirms the underlying assumption that made the torture program possible: CIA officials enjoy effective immunity from the law.

The report details crimes that run gamut of the criminal code. It starts with torture itself that is not just a crime but a war crime. However, the report also details – and names some of those responsible – for destroying evidence, lying to Congress and obstructing investigations into the torture program. Former Director Michael V. Hayden is cited for actively telling employees to lie and for personally giving false information to Congress . CIA Deputy Director John McLaughlin was expressly called on the Senate floor by Sen. Dianne Feinstein for giving false information to Congress. CIA General Counsel Scott Muller in 2003 is quoted as lying to the White House about the existence of videotapes on the interrogations. The report details false statement after false statement given by past directors and high-ranking officials to Congress, to the White House and to the American people. It also details how, after CIA were told about inquiries into the legality of the torture program, officials promptly ordered the destruction of video tapes to get rid of the evidence.

Yet, what did all of that prove? It proved that the CIA could commit all of these crimes, even war crimes, and not face a single federal charge. Not one. The only thing more chilling than the torture carried out in our name was the fact that it was carried out with utter impunity.

Truth #2: The Justice Department First Facilitated Torture And Then Obstructed Its Prosecution

One of the least discussed “truths” in this study is the ignoble role played by the Justice Department. During the Bush Administration, figures like Jay Bybee and John Yoo issued the infamous “torture memos” that gave legal cover for the programs. The only thing more tortured than the subjects was the legal authority used to justify their abuse. However, the report also details how the Bush and Obama administrations obstructed the investigation at every turn. Six months after Congress began to investigate the program and was demanding to interview key players, Attorney General Eric Holder suddenly announced the Justice Department’s own investigation under John Durham. As soon as the Justice Department investigation was announced, virtually every key player refused to speak with congressional investigators in light of the internal investigation. As expected, Durham later found that not a single crime could be found. Not in the destruction of evidence. Not in the false statements. Certainly not in the torture itself.

Holder and the Justice Department proved as much enablers as did their predecessors in the Bush administration. Soon after taking office, President Obama shocked many by going to the CIA and assuring employees that, despite his recognition of the torture, no one would be prosecuted. Holder and the Justice Department played as great a role in fulfilling that pledge as Justice did in facilitating the program itself.

Truth #3: Torture remains a question of effectiveness for many in government

Perhaps the most chilling truth is that the CIA and key American leaders continue to deny the very premise of both international and domestic laws. The key response of the CIA was to insist that the program was “effective” – the very rationale that is expressly rejected in the Convention Against Torture and other laws. It does not matter if torture was useful or productive. It is a war crime. We should know. We wrote that language saying that no nation can justify torture due to “exceptional circumstances” or effectiveness. Yet, the very agency that committed these crimes has continued to argue that those crimes were productive exercises.

The current debate over whether torture works reveals how far we have fallen as a nation in our view of this war crime. Not only does our embrace of torture threaten our own soldiers and citizens abroad, we have lost the moral high ground internationally. The truth is that torture could easily return to the United States so long as it is viewed as a practical question instead of a moral one.

Jonathan Turley, a law professor at George Washington University, is a member of USA TODAY’s Board of Contributors.

448 thoughts on “TRUTH WILL OUT: THE SENATE REPORT CONTAINS SOME INCONVENIENT TRUTHS”

  1. I interview people for a living. There is a paucity of good interviewers on TV. Brian Lamb stands above all who I’ve seen. A good interviewer is like a good umpire, you barely notice they’re there. A good interviewer is almost always an introvert, great listeners genetically. Shrinks are supposed to be great interviewers, but some are so condescending it clouds their perception.

  2. The big problem with torture and unconstitutional activities is it corrupts the entire American justice system for you and your children here in the USA. Under Article VI [section 2] of the U.S. Constitution it is also unconstitutional to violate binding treaties on torture.

    Since 9/11 the U.S. government has already tortured and even assassinated U.S. citizens on foreign soil – without charge, trial or a guilty verdict. These citizens were NOT on any battlefield either. These examples are just the highlights, there are plenty of other evil things being done to U.S. citizens as well on U.S. soil that don’t make the newspaper. For example, blacklisting programs are being used against environmental rights activists, opponents of the death penalty, homosexuals and even Quakers in Vermont. “Terrorism” laws are being used on “non-terrorism” cases to silence legal freedom of speech exercises. Blacklisting like this can destroy livelihoods, marriages and even cause premature death. If you allow the government agencies to be lawless and not follow the U.S. Constitution these things happen to us here at home also.

    If the constitutional rule of law is optional overseas, it’s also optional here at home. It really doesn’t matter what the law or Constitution says if there is no penalty for violation and no enforcement.

    It is also important to remember that 9/11 could have been prevented by our national security agencies with existing intelligence, they had all the facts, tools and personnel they needed. Part of this story is about bureaucratic mission-creep.

  3. Olly:

    I can speak only for myself, but I don’t give anyone a pass, regardless of party affiliation, when I believe illegal or unconstitutional action has been taken.

    The law on torture hasn’t lost its reference points; it has lost its defenders. It is frequently said that truth is the first casualty of war. In my view, law is the first casualty of fear.

      1. What this country needs is an education in Logic. We have to learn not to make illogical arguments! It is it not easy to spot one at all times. The second thing this country needs is a media which will not give a platform to irrational people in their attempt not to take sides on an issue. And devote the necessary program time to a serious issue rather than the usual 10 minutes or less before they have to break for a commercial and apologizing that time will not allow for more discussion! There is no incentive for the major networks to settle an issue; rather, just air both sides of the debate in an attempt to placate all the viewers and then say, “well, we will have to leave it there for now.” Nothing is accomplished; just entertainment. And we need a media which will hold politicians accountable by challenging the logic of their arguments instead of allowing them to read from their talking points in hopes they will grace their program by their appearance in the future. When the media places reason and truth ahead of their commercial interests, this country will be the better for it.

        1. Jeff,

          I agree. I frequently am frustrated with interviews as you mention in that little time is devoted to substance and mostly overshadowed by sound bites clamoring for a reaction. It seems that fewer than ten or so actual questions are fielded and responses less than a minute or two each. While this frequently is the case, except for a few programs on Sunday which unfortunately are all politics, it is not necessarily unique to today.

          I saw this shown quite well in two interviews I watched on YouTube of Salvador Dali. One was with Mike Wallace, perhaps in the early 1960’s. It focused mostly on some of the bizarre and public actions of Dali but did spend much time into the man and his approach to art. I found it to be rather limited in depth:

          https://www.youtube.com/watch?v=0rBcAESFjBw (part 1 or 2)

          I later watched an interview with Dali taken years later by a Spanish Interviewer. The conversation/interview exceeded the American variety in terms of bringing an understanding of Dali and therefore also his contribution to the art world.

          https://www.youtube.com/watch?v=eGKKyTKVWbY (1 of 8) Subtitled.

          I invite you to watch these two as they are both interesting to our discussion. Alas, there is one hope for us in the Charlie Rose Show; my favorite.

          1. I like Fareed Zakaria, but he is limited by the constraints of commercial TV. Mike Wallace to his credit was not afraid to ask the tough and obvious question, but the problem with all these interviewers is that they do not press the politicians if they make an irrational or illogical statement. They will not say, “That is a bogus argument” or “You are either ignorant or deliberately lying.” What we need is coercive interrogation! There is a show on the BBC I remember seeing called “Hardtalk” in which the host grilled a politician for 30 nonstop minutes to the point where he was visibly shaken! The host did not politely accept his nonsensical answers; rather, he ridiculed them and would not let him off the hook. If American politicians do not have the stomach to face such a cross-examination, then they are cowards and frauds.

            BTW, has any American journalist yet posed the President the question about his responsibility under international law to prosecute those suspected of war crimes, i.e., waterboarding?

            1. Jeff – Obama requires all questions to be submitted in advance and the approved. Only approved questions may be asked.

              1. How do you know that? I don’t see a problem of being informed ahead of time of the questions that will be posed, but, of course, I do not approve of any disapproval of questions. Journalists used to be criticized for not asking a follow-up question in order to press a politician. These follow-up questions nowadays are just theater to deflect an accusation of being too soft. Politicians know that they only need to rephrase their first response before the journalist asks if they are running for president in hopes of making some news! Truly, we need to treat our politicians more like suspected terrorists.

            2. Jeff, I agree. Much of the media here takes kid gloves to politicians in interviews. You are correct about the British. One event I enjoy is watching some of the contentious Prime Minister’s Questions.

              https://www.youtube.com/watch?v=5VP_WOmW6XM

              You have to have a keen and quick wit to make it in this kind of debate. I doubt many of our politicians could handle such a system.

          2. Darren – If Charlie Rose leaned more to the middle I would agree with you. 🙂

        2. Jeff Silberman wrote: “What this country needs is an education in Logic.”

          And such education should start here on this blog. Logic is based upon premises. The logic problem in this thread is that nobody argues from what the law says. They argue instead from their perception or opinion of what the law says. They argue from what they BELIEVE the law says rather than from what the law actually says. So many times people falsely claim that the law considered waterboarding torture prior to 9/11, but nobody has cited that law and proved that premise. Every law cited has been silent about waterboarding being torture, but they just merrily go along repeating their false assertion that the law claims waterboarding is torture. It is impossible to argue with irrational monologues like this.

          The truth is that the law has not addressed waterboarding as being torture. That is why nobody prosecutes anybody for waterboarding prisoners. They violated no law; ergo, they have no case.

          As soon as somebody cites the law saying that waterboarding is torture, I will gladly concede that they have proven their argument. Otherwise, I treat it simply as their opinion. They have a right to express their opinion, just as I have to mine, but they have no right to misrepresent what the law says on the matter.

  4. Mr. Appleton,
    Leaders aren’t designated; they just lead. And the reason people may not read “statutory, treaty and case law references” is because the law has lost its reference point. It’s as subjective as points 1 through 7.

    “And as for my profession, I can only say that lawyers are not immune to any of the flaws that plague human nature.”

    That is precisely why no one should be above the law. Yet we have more than half of the participants in this blog willing to give the current Executive a standing ovation for even hinting that the rule of law doesn’t apply to his Presidency. The hypocrisy is indeed transparent.

  5. Mike A., Inga & raff,
    A couple of years ago, Jim Wright at Stonekettle Station wrote an essay called Unreasonable People. He posited a couple of observations that may be relevant here:

    You cannot reason with unreasonable people.

    And it is my policy not to engage in debate with willfully unreasonable people.

    There’s a difference between stupid and deliberately stupid.

    He goes on to say:

    And it is neither my job nor my duty to debunk the idiots or pamper the mental patients.

    In America, the Constitution may give these people the right to speak their bilge in public, but it doesn’t require that I have to respect it.

    And I do not.

    I cannot, and will not, suffer fools gladly. And I really can’t understand people who do.

    Arguing with these people, attempting to reason with them, is a lost cause – because they are not reasonable people.

    You cannot reason with unreasonable people. You can not.

    You may want to buy a large size Sharpie instead.
    http://www.stonekettle.com/2012/09/unreasonable-people.html

    1. Chuck – if people do not agree with you they are stupid and fools. Very professional of you and good professional advice.

  6. Olly:

    First, I have not been designated to “guide Turley’s many discussions,” nor would I presume to do so. Second, I have provided statutory, treaty and case law references to the law of torture when requested, as have others on this thread. No one actually reads them, of course, because it is not emotionally satisfying. Instead, people prefer to advance one or more versions of the following positions:

    1. People who act like animals deserve to be treated like animals.
    2. How can waterboarding be torture when Navy Seals are subjected to it as part of their training?
    3. Each new administration gets to define torture in a manner it deems expedient.
    4. It’s only torture if bad guys do it.
    5. Only the winners have the right to define torture.
    6. What if your wife, husband, son, daughter, best friend or the guy who fixes your car was killed by a terrorist?
    7. Anybody can hold his breath for 40 seconds.

    If you see anything in that litany meriting a thoughtful response, have at it. And as for my profession, I can only say that lawyers are not immune to any of the flaws that plague human nature. If that chaps your hide, I can only suggest that you consider a society without them.

  7. Sheesh, so if Sandi and Paul say waterboarding isn’t torture aren’t they basically saying the rule of law is subordinate to their ‘notion’ that it’s not illegal because THEY THINK it’s not torture?

    1. Inga – I am just taking the Obama ‘rule of law’ approach to the law. What I decide the rule of law is, is what it is. Surely, you can feel that. It is an emotive response to the law.

      1. I hope people who comment here watched Fareed Zakaria this morning. A former GTMO detainee in excellent English and high intelligence explained in detail why we as Americans should not torture. There are also two former interrogators that have put out a PSA saying torture does NOT work in gathering actionable information. Why people still want to excuse torturers and the torture program is pretty shameful.

      2. Why thank you Chip. I too find some of your comments instructive. If one takes the word of many interrogators, we can actually form an accurate idea that torture does NOT work to obtain actionable info. Those two guys on the PSA are not the only two former interrogators speaking out against the use of torture.

        1. Inga – there are always differences of opinion on almost any subject. I am sure they looked far and wide to find two interrogators who would fit the narrative they want to spread (Obamaspeak). Do you really think they would put on two interrogators who said that water boarding got actionable intelligence? That does not fit Obamaspeak.

      3. I’ll be happy to post a video of it when one becomes available. If you are too lazy to watch, that’s not my problem. Chip I won’t take your bait.

  8. Justa,
    Sure, right up to the point someone, advised by an attorney, says the rule of law is subordinate to MY rule. THEN WHAT!!!?

  9. So sayeth Mike Appleton from on high. Good leadership there counselor. You could take a lesson from Darren on how to communicate because doing Gruber doesn’t suit you. Instead of using that effing legal brain to guide Turley’s many discussions you just sit back and pontificate whenever the moment strikes you. What really chaps my hide is there is nothing in this country your profession hasn’t screwed up; I don’t think any other can make that claim. And because you guys have obliterated the rule of law, the rest of us have to try and figure it out so we can begin fix it. So spare me the condescending tone, it just comes off as hypocritical.

  10. The discussion concerning whether waterboarding constitutes torture has crossed the line into absurdity. It is of absolutely no legal significance whether one personally does not “consider” waterboarding to be torture. The law says that it is, and said so for many years prior to 9/11. In the wake of what occurred after that horrible day, we have been falling all over ourselves attempting to excuse our actions through the invention of euphemisms.

    We truly live in the age of revisionism. We are doing to the law of torture what David Barton has done to constitutional history, what neo-confederates have done to the history of slavery and what evangelical fundamentalists have done to the history of science: construct myths to obscure truths in order to restore the false notion of ourselves as a morally superior people favored by God. All we have accomplished in the process is to make our hypocrisy more transparent.

    1. Mike – a one who does not think water boarding is torture, I do in my heart of hearts, feel morally superior.

    2. Mike Appleton wrote: “The law says that it is, and said so for many years prior to 9/11.”

      If the law said that waterboarding is torture prior to 9/11, why has not one lawyer here been able to cite that law? You tried to cite it, but failed.

  11. Max-1, let me be clear, I don’t consider water boarding torture. I don’t think we torture our troops readying them for combat. If someone told me they knew something, I would do anything to save lives. More children lost their heads this week. I could do lots of ugly stuff to who did that. These are vile, evil people. They must be stopped, not for us alone, there are human beings in the Middle East who are losing everything. They live in UN refugee camps, in tents. That is wrong. They deserve to live their lives as they choose, as we do. When President Bush spoke to Congress and the American people the week of 9/11, he told us it would be long and hard. We’re used to getting things done and we have little patience. Instead Feinstein is screwing the CIA, who at the moment are the only ones trying to keep us safe. Holder is busy trying to get a racial war going here.

    I’ll be 73 soon, so the number of years I have left to watch the crime of “fundamentally changing” America, in a way no one envisioned or knows and it’s wrong! You can’t attack the private sector and private property owners with rule, after rule, after rule. Obama knows nothing about how jobs are created. He should get out of the way and let the engine of the private sector move steadily toward a better life for everyone. These last two years could be his legacy, if he’d just get out of the way and let the people take care of it.

    Whatever was planned hasn’t worked. And the measure of a man’s character is when he knows it isn’t working and starts to go a different direction. The American people voted for him twice. It’s time to thank them and get them back to work.

    These protests and killings happen because so many have nothing to do. We all need something we do to provide the best we life we can for our family. It isn’t government programs, if it were everybody would be doing something productive,mand they aren’t. It is corrosive for the country. This isn’t how I was raised and I have a wonderful life, so maybe that was is better.

  12. Given the fact no one here admits they would allow their loved ones to suffer and die because they won’t condone torture; what is left to debate? Torture is an ugly reality of war and peace. It will always be subject to definition and it will be used to further tyranny or oppose it. Barbarians will use it at any time and any place; civilized cultures will limit its use as a measure of last resort. Even after this report and debate are over, there will still be “techniques” used that someone will want to define as torture and someone will argue that it’s not. That, is reality.

  13. The U.S. Constitution was designed for both wartime and terrorism (without amendment).

    The US Constitution was designed for United States Citizens. I doubt the Founders envisioned it applying to everyone world wide. Those instances that you cite, which I agree are wrong, such as the FBI’s treatment of MLK jr and the lawlessness of government institutions you cite……are wrong because he is a citizen of the US and has those Constitutional protections. Those are the “perks” of being a citizen and why citizenship for non citizens should be a very very important and big deal. This is why I object to Obama handing out US Citizenship perks to illegals who have broken the law to get into this country. It is a precious thing to be an American Citizen and shouldn’t be treated like some party favor.

    If the suspects couldn’t be apprehended, both Bush & Obama could go to a federal court, then charge them in absentia in front of a jury. If the suspects were convicted they could then obtain permission from the court to proceed.

    Unless those suspects are American Citizens, there is no reason to use our justice system which is meant for American Citizens to prosecute war criminals, enemy combatants or other foreign nationals who are engaged in a terroristic war against American Citizens and our interests.

    The US Constitution protects US Citizens.

  14. Paul:

    Bush officials actually did extensive research to obtain torture techniques. Waterboarding was used during the Spanish Inquisition to torture centuries ago. The U.S. government has also prosecuted others for waterboarding during World War Two.

    A great metaphor for defining torture is “Chinese Water Torture” – maybe one drop of water is not torture but millions of drops covering 4000 days is torture. It depends on many factors like period of time and severity of each method of torture. There are even federal statutes that could be used today if the DOJ had the will to enforce them.

    In 2014, indefinite detention and blacklisting individuals would also be torture due to the period of time.

    The irony is today we even have local and state police complicit in war crimes and there is no statute of limitations on certain types of war crimes. Local and state officials have been “deputized” using federal preemption grants to blacklist their own citizens. These cases happen in the court system and don’t rely on the politicians and plaintiffs never forget.

    1. Ross wrote: “A great metaphor for defining torture is “Chinese Water Torture” – maybe one drop of water is not torture but millions of drops covering 4000 days is torture.”

      That is a great metaphor to explain how something innocuous becomes torture.

      The CIA standard set for waterboarding was a length of 40 seconds. Most people can easily hold their breath that long. I have a nephew who is becoming a Navy Seal. He can hold his breath over 4 and a half minutes.

      Khalid Sheikh Mohammed was said to be waterboarded the longest time. It was one and a half minutes during his fifth and final session. According to a former CIA official familiar with the interrogation, he said that once he broke, there was no more need for waterboarding.

    2. Ross – not to throw too big a wrench in your argument, but you really cannot have a ‘war crime’ if you do not have a war. Police can be guilty of violating the criminal rights of people, but that does not constitute a war crime.

  15. DBQ:

    The U.S. Constitution was designed for both wartime and terrorism (without amendment).

    The authorities that our national security agencies are “assuming” have to meet a certain test like combatants fighting against us on a real battlefield. If they also happen to be U.S. citizens the bar is even higher to meet.

    For the non-battlefield cases: If the suspects couldn’t be apprehended, both Bush & Obama could go to a federal court, then charge them in absentia in front of a jury. If the suspects were convicted they could then obtain permission from the court to proceed.

    Whether it’s torture, indefinite detention (which is also torture) or drone strikes what this is really about is “lawlessness” by government agencies. In past years national security agencies abused these powers to go after Baptist ministers like Martin Luther King, Jr – not for terrorism or even criminality but freedom of speech and freedom of assembly exercises (legal constitutional freedoms).

    Allegation is not proof without a fair judicial process where the “accuser” confronts the “accused” under oath.

    For real combatants on real battlefields, I agree with you.

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