Interrogation: Legislative Development

Thoughts on the SSCI Report, Part I: Introduction and Overview

By Benjamin Wittes
Monday, December 15, 2014, 4:00 PM

I have now spent enough quality time with the SSCI interrogation report---and with minority views and the CIA response---that I am ready to begin commenting upon it. This is not to say I have finished reading it all; far from it. A plane flight to Israel and a lot of other hours have only gotten me started. And I confess that I am amazed by the speed with so many journalists, organizations, scholars and commentators appear to have digested nearly 1,000 pages of dense material sufficiently so as to pronounce confidently on what they all say, what is true in them, and what they all mean cumulatively. Nearly a week after the release of the material, I am still only just starting to formulate my thoughts.

I am, however, far enough along in that process that I have at least isolated what I think are the major fault lines and developed preliminary instincts on them, instincts I will be fleshing out over the next few days. I'm going to lay these out in a series of posts, as they are far too involved, and conflicting, to develop in a single document. What follows in this post is an overview of coming posts on the subject.

It seems to me there are four distinct, major subjects addressed in the competing documents, issues with very different merits in my view. There also innumerable sub-debates, but I'm going to put those aside for now.

In the first post, I'll look at the allegations in the Senate report that the treatment of detainees was far more abusive, far less controlled, and far more brutal than the CIA has acknowledged---the matter on which the committee majority is to my mind most persuasive. The committee majority makes horrific allegations about the actual conduct of the program---as opposed to the program in theory---particularly in its early years and particularly as authorized techniques are used in sustained combination by personnel not up to the job and in substandard facilities. The committee also makes horrifying allegations about conduct that exceeded the four corners of the program's legal authorization, conduct that went unpunished criminally and sometimes undisciplined administratively as well. By and large, the agency and the minority do not present effective rebuttals to these allegations, though the agency does explain---relatively convincingly---that a lot of the abuses flowed from the chaos of the early period of the program, during which the CIA was unprepared to take on a delicate new operational mission.

In the second post, I'll look at an area on which the committee majority is frankly less persuasive: its startling claim that the net intelligence benefit of the agency's coercive program was zero, even negative. To be sure, the committee pokes real holes in certain agency claims of major intelligence breakthroughs from its coercive interrogations. But the committee is far less convincing in its dogmatic insistence that no benefit accrued to the agency from any of its use of coercion. The minority on this point makes genuinely valid criticisms of the majority's methodology and conclusions. And the CIA itself is almost certainly correct that it obtained critical information after using brutal methods---making it impossible to determine whether it was those methods or not that yielded the operational gains.

In the third post, I'll look at the committee's allegations with respect to the CIA's failures of candor with legislative and executive oversight bodies, which seem to me something of a mixed bag. I have no doubt that the agency presented its program in the best light to legislators, shading matters both to make the intelligence collected seem maximally impressive and to make the conduct of the program as antiseptic and benign as possible. I also don't doubt, as the majority repeatedly alleges, that facts---including important facts---were misreported in the course of that relationship. And there is no question that the Bush administration kept the circle of informed legislators extremely and unfortunately small in the early years of the program. All that said, I find the majority far less convincing that congressional overseers were fundamentally misled as to what the CIA was up to. And while there's no question that the CIA advocated for the program within the executive branch, the notion that the White House was less informed than it wanted to be strikes me as quite far-fetched indeed.

In the fourth post, I'll address the various process issues that have arisen about the committee's study---a point on which I think the committee majority has some vulnerabilities. The decision not to interview any of the participants in the program seems to me difficult to defend, though the question is a complicated one. While the documentary record the committee has amassed is undeniably powerful, surely that documentary record gave rise to some questions; it certainly did in my mind. Surely the record would have been more complete had those questions been answered. As it turns out, many were never even asked of the cadre of people who could have shed light on answers.  They should have been asked, both in fairness and as a matter of rigor.  (A caveat: To be sure, it seems some study-relevant questions apparently were asked of key witnesses, though not by Committee staff. In at least some places, the latter's questions had been answered during earlier inspector general investigations---notes of which the Committee relied on while conducting its own inquiry. Still, from a reader's standpoint, it is difficult to know when that happened and when it didn't.) More complicated is the cry of foul from committee Republicans and others that the committee behaved in a partisan fashion. It takes two sides to divide along partisan lines, after all. It is fair, in my view, to accuse the committee as a whole of failing to conduct this investigation in the highest tradition of nonpartisan intelligence oversight. But I suspect that failure probably implicates both the majority and minority members of the committee.

Finally, in the last post, I'll try to formulate some broad conclusions about the future of coercion in U.S. counterterrorism---which I suspect is dim indeed.

One administrative note on the production of these posts and one substantive note.

On the administrative side, I am, as noted above, in Israel right now and my days are packed full of meetings and briefings. So I'm not entirely sure over what time frame these posts will actually materialize. I'll try to stay on this, but I'm not promising that these will follow each other as night follows day. Please bear with me.

On the substantive side, I think it's worth noting the oddity of a sudden fevered debate over interrogations that took place---mostly, anyway---more than a decade ago in a program that has been entirely shut down for six years. There is something to be said for having a reckoning over the CIA's program. But there is a lot more to be said for debating seriously the national security and values issues the country faces now and will face in the future. For better or for worse---and I think for better---the CIA is out of this business and has been for a long time. So the value of the current frenzy of debate is largely one of retroactive accountability---ensuring it for some people, avoiding it for others---and a branding exercise in which I want no part. In the war between Dick Cheney and those who regard any contemplation of coercion as the Second Coming of the Inquisition, I am a conscientious objector. The only reason, in my judgment, these documents are worth reading is the chance that they may shed light on the questions of whether programs of coercive interrogation---in any form---have any value in a democratic polity's confrontation with extremist terrorism and whether a program of such coercion can ever be conducted in a fashion that does not do more damage than it prevents. It is these questions I will try to address over the coming days.