By Dan Froomkin
1:00 PM ET, 04/23/2009
There's so much movement on the torture front these days that it's hard to keep track. It also can be hard to distinguish between what has long-term significance and what doesn't.
A big media focus today is on whether President Obama's reversed himself on Tuesday when he said he is not opposed to some "further accounting of what took place during this period" and said he could not rule out criminal prosecution for senior officials. There's also a lot of attention on whether Obama has lost control of the message.
No one will remember either of these issues a few days from now. What is significant, however, is that the idea of launching some sort of investigation into torture and other abuses committed by the Bush administration is now very much back on the national agenda. So which way should we go? It's an exciting debate we have ahead of us.
Also significant is yesterday's release of a new official timeline establishing that waterboarding, which is nearly universally considered to be torture, was explicitly approved by senior White House officials in the summer of 2002.
But to me, the most significant news of the day can be found on today's New York Times op-ed page, where former FBI supervisor Ali Soufan persuasively and memorably rebuts the misinformation being spread by those complicit in torture.
A question from a reader in my live chat yesterday helped me clarify my own response to the dead-enders, led by former vice president Dick Cheney, who insist that what they call "enhanced interrogation techniques" averted further terrorist attacks.
The point is this: Any assertions from these people should presumptively be considered misinformation. These are the same people who lied to us over and over again about the reasons for going to war, about the war, about our entire detainee policy (remember: "we don't torture"?) -- and about who was responsible for the endemic abuse.
As most of us recoiled with horror over the soulessnes of the legal memos released last week and their repulsive attempts to rationalize the indefensible, it was easy to overlook how much of what the lawyers said they'd been told by the CIA was lies.
Among the many lies that jumped out for me, but hasn't gotten attention, was the CIA's assurance to Justice Department lawyers, quoted in the August 1, 2002, memo that Abu Zubaida, the first detainee to be tortured by direct order of the White House, was mentally healthy enough to be able to withstand waterboarding and the like without any long-term mental health effects.
Here's what the memo said, documenting the CIA's recitation of facts: "Through reading his diaries and interviewing him, you have found no history of 'mood disturbance or other psychiatric pathology[,]' 'thought disorder[,] ... enduring mood or mental health problems.' He is in fact 'remarkably resilient and confident that he can overcome adversity.'"
And yet, according to investigative reporter Ron Suskind, in his book The One Percent Doctrine, Zubaida was overtly mentally ill. In fact, in that diary the CIA mentioned, Zubaida "wrote of his exploits in the voice of three people: Hani 1, Hani 2, and Hani 3" -- a boy, a young man and a middle-aged man, Suskind wrote. He also quoted the FBI's top al Qaeda analyst as saying: "This guy is insane, certifiable, split personality."
Anyhow, so along comes Soufan, who shares his first-hand knowledge of the interrogations.
"One of the most striking parts of the memos is the false premises on which they are based," he writes. The first, dated August 2002, grants authorization to use harsh interrogation techniques on a high-ranking terrorist, Abu Zubaydah, on the grounds that previous methods hadn't been working. The next three memos cite the successes of those methods as a justification for their continued use.
"It is inaccurate, however, to say that Abu Zubaydah had been uncooperative. Along with another F.B.I. agent, and with several C.I.A. officers present, I questioned him from March to June 2002, before the harsh techniques were introduced later in August. Under traditional interrogation methods, he provided us with important actionable intelligence.....
"There was no actionable intelligence gained from using enhanced interrogation techniques on Abu Zubaydah that wasn't, or couldn't have been, gained from regular tactics. In addition, I saw that using these alternative methods on other terrorists backfired on more than a few occasions — all of which are still classified. The short sightedness behind the use of these techniques ignored the unreliability of the methods, the nature of the threat, the mentality and modus operandi of the terrorists, and due process.
"Defenders of these techniques have claimed that they got Abu Zubaydah to give up information leading to the capture of Ramzi bin al-Shibh, a top aide to Khalid Shaikh Mohammed, and [Jose] Padilla. This is false. The information that led to Mr. Shibh's capture came primarily from a different terrorist operative who was interviewed using traditional methods. As for Mr. Padilla, the dates just don't add up: the harsh techniques were approved in the memo of August 2002, Mr. Padilla had been arrested that May."
Soufan concludes: "It was the right decision to release these memos, as we need the truth to come out. This should not be a partisan matter, because it is in our national security interest to regain our position as the world's foremost defenders of human rights. Just as important, releasing these memos enables us to begin the tricky process of finally bringing these terrorists to justice."
Scott Shane writes in the New York Times: "Senior Bush administration officials, led by Vice President Dick Cheney and cheered by many Congressional Republicans, are fighting a rear-guard action in defense of their record. Only by using the harshest methods, they insist, did the intelligence agency get the information it needed to round up Qaeda killers and save thousands of American lives.
"Even President Obama's new director of national intelligence, Dennis C. Blair, wrote in a memorandum to his staff last week that 'high value information came from interrogations in which these methods were used,' an assertion left out when the memorandum was edited for public release. By contrast, Mr. Obama and most of his top aides have argued that the use of those methods betrayed American values — and anyway, produced unreliable information. Those are a convenient pair of opinions, of course: the moral balancing would be far trickier if the C.I.A. methods were demonstrated to have been crucial in disrupting major plots."
I disagree: The moral balancing isn't the least bit tricky if torture didn't work. In fact, in that case, there's no argument at all. Even if it did "work," of course, there are plenty of reasons to oppose it. But this is why Cheney is trying so desperately to keep his argument alive; if he concedes it, it would be like forfeiting the whole game.
Shane also points out, by the way, that the CIA apparently didn't give traditional interrogation much if any time to work on Khalid Sheikh Mohammed. "The memorandum says that 'before the C.I.A. used enhanced techniques,' Mr. Mohammed 'resisted giving any answers to questions about future attacks, 'Simply noting, "Soon, you will know." '
"But the same memorandum reveals in a footnote that Mr. Mohammed, captured on March 1, 2003, was waterboarded 183 times that month. That striking number, which would average out to six waterboardings a day, suggests that interrogators did not try a traditional, rapport-building approach for long before escalating to their most extreme tool."
"Condoleezza Rice, John D. Ashcroft and other top Bush administration officials approved as early as the summer of 2002 the CIA's use of harsh interrogation methods on detainees at secret prisons, including waterboarding...
"At a time when the Justice Department is deciding whether former officials who set interrogation policy or formulated the legal justifications for it should be investigated for possible crimes, the new timeline lists at least a dozen members of the Bush administration who were present when the CIA's director or others explained exactly which questioning techniques were to be used and how those sessions proceeded....
"After the leak in 2005 of a Justice Department memo that narrowly defined the type of activity that would constitute torture, Rice traveled to Europe in an effort to quell the international uproar. As her trip was getting underway, she said: 'The United States government does not authorize or condone torture of detainees. Torture, and conspiracy to commit torture, are crimes under U.S. law, wherever they may occur in the world.'"
And there's an awful lot being written on how all this effects Obama.
Dan Balz and Perry Bacon Jr. write in The Washington Post: "The legacy of George W. Bush continued to dog President Obama and his administration yesterday, as Congress divided over creating a panel to investigate the harsh interrogation techniques employed under Bush's authorization and the White House tried to contain the controversy over the president's decision to release Justice Department memos justifying and outlining those procedures....
"Obama has drawn sharp criticism from former vice president Richard B. Cheney, former CIA directors and Republican elected officials for releasing the memos. Those critics see softness in the commander in chief. He faces equally strong reaction from the left, where there is a desire to punish Bush administration officials for their actions and to conduct a more thorough investigation of what happened.....
"Obama apparently believed he could avoid what is now playing out." But now, Obama and his aides "have been drawn into a debate they did not foresee. The president has a full plate, domestically and internationally. He had hoped that, in winning the election and moving quickly to change his predecessor's policies, he could close the books on Bush's presidency.
"Instead, he has found in his first months how difficult that is. Hopes for an immediate change in tone have withered. Republican opposition to his economic policies remains nearly unanimous. With this latest controversy, he is learning that neither the opponents nor the defenders of Bush's presidency are ready to move on."
John Dickerson writes for Slate: "It may be time for an Obama do-over speech on the issue of torture. It's a form we've come to recognize—whether on the issue of bonuses for AIG executives or his relationship with his former pastor. He makes a declaration, the issue gets away from him, the political pressure builds, and he must rush in with a new declaration to contain the fallout."
Howard Fineman writes for Newsweek: "His response has been halting and hesitant. His message has been uncharacteristically muddied. And he is paying the price, at least in terms of message control."
Howard Kurtz writes for The Washington Post: "President Obama, who has called for looking forward, not backward, now finds himself in the situation he had hoped to avoid. By first ruling out and then opening the door to prosecuting officials from the previous administration, Obama has triggered political passions on both sides. At a time when his focus ought to be on the moribund banking system and the ailing economy, he has unleashed a furious debate about the past."
Sam Youngman writes for the Hill: "The day after opening a can of worms by saying he is open to a truth commission to investigate the authors of the controversial Bush-era enhanced interrogation memos, the White House stressed Wednesday that President Obama is neither proposing nor initiating those proceedings or the formation of a truth commission.
"White House press secretary Robert Gibbs, talking to reporters aboard Air Force One as the president traveled to Iowa, said any decision to prosecute the authors of the legal memos would come from the Justice Department and 'it has to be done outside of the realm of politics.'"
Stephen Collinson writes for AFP: "Gibbs said flatly that a flurry of news reports proclaiming the administration had switched course on delving further into those behind methods like near drowning, or waterboarding, were wrong....
"The spokesman also rejected calls by the American Civil Liberties Union (ACLU) for the appointment of an independent prosecutor to probe the torture issue.
"'The lawyers that are involved are plenty capable of determining whether any law has been broken,' Gibbs said."
For what it's worth, I have a fairly benign explanation for the ostensible reversal, as I articulated yesterday in my live chat.
Here's my guess. Obama has no appetite for "looking backward" as he has so much on his plate "looking forward." So he was never going to be the guy pushing for an investigation. On the other hand, he wasn't going to be the guy who actually blocked an investigation, either.
He thought he had found an acceptable compromise by releasing memos he was indeed morally bound to release, while making clear that the front-line guys who did what they were told was legal wouldn't be prosecuted. This was clever because the advocates of prosecution are focusing their efforts much higher up the chain of command.
Then, I think, White House Chief of Staff Rahm Emanuel stepped on it. His statement on a Sunday talk show indicated that all prosecutions were off the table. Not only was that not Obama's view, but it's not the White House's call to make. It's the Justice Department's. Then Gibbs, who lest we forget reports to Obama through Emanuel, chose not to disagree publicly with his boss.
At that point, Obama had no choice but to clarify a position that he had been trying to leave vague.
Meanwhile, Sam Stein writes for Huffingtonpost.com: "The central debate dominating discussions of a possible investigation into torture by the Bush administration seems to have shifted sharply in the past few days: from whether such an investigation should take place, to now what form it will have when it comes."
So what are the options? There's remarkably little discussion of that in the mainstream press. Although CQ notes that "Senate Judiciary Chairman Patrick J. Leahy said Wednesday that if Republicans do not back an independent commission to investigate the George W. Bush administration's detainee interrogation program, he will launch a committee probe.
"'If we can't get a bipartisan commission to do this then we'll do it in the usual way,' Leahy said."
The New York Times editorial board writes: "When he was vice president, Dick Cheney never acknowledged the public's right to know anything. Now, suddenly, he has the full disclosure bug....
"Mr. Cheney claims that the waterboarding saved thousands of lives. Most accounts that don't come from officials involved in the formation of those policies suggest that that is not the case. The question needs to be answered so Americans can decide if they want to buy into Mr. Cheney's view that the ends always justify such barbaric means."
Gary Kamiya writes for Salon that torture can work -- but is still always wrong.
The Wall Street Journal editorial board writes: "Mark down the date. Tuesday, April 21, 2009, is the moment that any chance of a new era of bipartisan respect in Washington ended. By inviting the prosecution of Bush officials for their antiterror legal advice, President Obama has injected a poison into our politics that he and the country will live to regret."
And CNN host Ed Schultz, via Daily Kos, argues: "I think that Dick Cheney wants this country to get hit again for political gain...I think Cheney is that mean."