In 1984, the United Nations adopted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The treaty forbade signatories from carrying out torture or related practices, or from deporting to detainees to other places where they knew these acts would be carried out. It would be ten years before the U.S. Congress ratified this agreement, which would then take on the force of law.
In light of the U.S. signing onto the convention against torture (and also, the Geneva Conventions and the Universal Declaration of Human Rights), the activities revealed in the U.S. Senate Select Committee on Intelligence (SSCI) report on the CIA’s “enhanced interrogation” program constitute clear violations of international law, perhaps even crimes against humanity. But it unlikely that anyone will face justice:
Violations would typically be investigated and prosecuted in the International Criminal Court (ICC), which the United States struggled to prevent from coming into existence. While President Clinton eventually signed onto the Rome Statute which established the court towards the end of his term, his successor would withdraw the U.S. commitment before the agreement was ratified by Congress—precisely out of concerns about American policies in the wake of 9/11. And as Undersecretary of State (and future U.S. Ambassador to the U.N) John Bolton underscored at the time, because America is not a member of the ICC, it is not accountable to the court unless referred by a resolution from the U.N. Security Council, which the U.S. would simply veto.
Because the perpetrators will not be held to account in international forums, the United Nations and human rights groups have called on the White House to prosecute those involved in American courts, compliant with U.S. treaty obligations to prevent and prosecute war crimes and crimes against humanity. After all, in the Tokyo War Crimes Trials, the United States helped condemn to death Japanese soldiers and leaders who committed or approved of these very same acts against American forces during WWII.
However, contrary to these international obligations (or even the U.S. Bill of Rights which repeatedly prohibits torture), Bush Administration officials approved the CIA’s enhanced interrogation program. As a result of this clearance by White House and the Department of Justice, prosecution in U.S. courts would be difficult. Moreover, President Barack Obama has already de facto pardoned those who took part in the program, even those who stepped outside the permissive framework laid out by the Bush administration. In fact, the only agent who has been jailed with regards to the “enhanced interrogation” program to date is the CIA whistleblower who leaked these abuses to the press.
Reforms to rein in U.S. intelligence agencies seem highly unlikely as a result of the partisan way in which the report was received on Capitol Hill—with some Republican lawmakers going so far as to defend the torture program and even its continued use. And across polls, a plurality of the American public seems to agree with these torture apologists.
This leads one to question whether the SSCI report even matters.
A Record of Failure
The Senate’s investigation suggests that the CIA and its contractors repeatedly, and likely intentionally, misled the public and policymakers in two key ways:
First, they oversold the effectiveness of the program, marginalizing those internal voices who called the CIA’s practices into question on tactical or moral grounds. Second, they failed to disclose critical information about the scope and depravity of their operations, often stonewalling previous inquiries by the SSCI, which is one of the only democratic bodies tasked with overseeing the CIA and other intelligence agencies. Meanwhile, the CIA’s internal systems for oversight proved to be woefully insufficient. For all intents and purposes, the agents involved were acting without any meaningful checks or accountability.
The CIA had justified its enhanced interrogation program by citing examples of when these methods supposedly produced critical intelligence. The SSCI report goes through all 20 of these cases, revealing that in every instance cited by the CIA, torture failed to produce actionable intelligence unavailable more easily by other means. In fact, more often than not, the practices generated misinformation in self-reinforcing cycles; intelligence collected in this manner played a pivotal role in justifying the U.S. invasion of Iraq by falsely tying Saddam Hussein to al-Qaeda and 9/11. So the consequences of this bad information collected through the program have been dire—arguably leading to more American casualties than the very 9/11 terror attacks through which these methods were justified.
In the few cases where the CIA got “good” intelligence via enhanced interrogation, it generally corroborated existing information rather than making novel and important contributions. Torture never led to the capture or killing of high-value targets, nor did it lead to the disruption of any imminent attacks or the interception of significant national security threats.
Rogue Intelligence
Most psychologists and psychiatrists have long agreed that torture is unlikely to produce good intelligence. It is great at getting people into a cooperative state, but through this very process renders them largely unable to provide reliable information.
The CIA’s post-9/11 program was developed and spearheaded by two contract psychologists who lacked any direct experience with interrogation or any substantive knowledge about the Middle East or counter-terrorism. They relied on an experimental approach invented in the 60’s and subsequently disavowed by the researchers who developed it. Despite all of these glaring red-flags and conflicts of interest, their contracting company was paid more than $80 million to administer the CIA’s enhanced interrogation program between 2002 and 2009.
As a result of this outsourcing to private contractors, “surprisingly few” government agents were directly involved in the torture, but many of those who were had a history of bending the rules, even of abusive behavior—according to Sen. Feinstein, the warning signs were so glaring that many of these people should have been terminated long before 9/11, and they certainly should not have been entrusted with such delicate work in an environment of near-total impunity.
Beyond the bad actors on the U.S. side of the equation, the CIA program also relied heavily on some of the Middle East’s most repressive states to torture people on America’s behalf—rewarding these autocrats with cash payments and some measure of implied protection in exchange for their cooperation.
In short, the report is damning. It argues that even by the program’s own standards of effectiveness, enhanced interrogation was worse than useless: it was malignant to U.S. interests. But it isn’t clear what, if anything, will come of these revelations.
Meaningful Reform
On the one hand, the U.S. deserves some credit for acknowledging these excesses—few countries have or would. In part, America is empowered to do so because of their veto authority in the U.N. which ensures that any actions taken to condemn U.S. atrocities will be purely symbolic. And no other country or constellation is capable of delivering meaningful multilateral sanctions or other reprisals in the U.N.’s stead. So basically, America is in the unique position where it can do, and admit to doing, virtually anything with few direct legal consequences.
However, absent this accountability, it remains to be seen if the SSCI investigation will produce meaningful changes in U.S. policy; the CIA’s own history suggests otherwise. For instance, a 1989 CIA review of U.S. Cold War intelligence policies concluded,
“inhuman physical or psychological techniques are counterproductive because they do not produce intelligence and will probably result in false answers.”
It was the preliminary findings from this previous investigation that helped convince President Reagan to sign the convention against torture during his final months in office (four years after it had been adopted by the UN). So it is stunning to see the same agency whose first-hand experience on the inefficacy of torture motivated the U.S. to sign the prohibition spearheading the egregious violation of this very treaty. More has to be done to ensure that such a relapse does not happen again in the future.
While President Obama has ostensibly shuttered CIA black-sites and put a freeze on torture (“reforms” which are not necessarily binding on his successors), the White House has not yet fulfilled its pledge to close the Guantanamo Bay detention facility where many of these crimes took place. Dozens of prisoners remain held in indefinite limbo, not charged, tried, or convicted of any crime—a handful of them kept alive by force-feeding.
And beyond “enhanced interrogation,” the U.S. should look at other counter-terrorism practices which seem to similarly violate international rules and norms and generate substantial blowback while being generally ineffective, such as the drone, mass surveillance, high-value targeting and extraordinary rendition campaigns—all, unsurprisingly, spearheaded by U.S. intelligence agencies, demonstrating the urgent need for the White House and Congress to reform and expand their oversight for these institutions. Continued overreach by intelligence agencies poses a profound threat, not only to America’s interests, but also to its freedoms and democratic values.
Finally, the White House cannot praise the SSCI report and highlight the importance of bringing these abuses to light while simultaneously fighting transparency, punishing whistleblowers with unprecedented ferocity, and generally interfering with the free press.
Unless and until Washington backs up its mea culpa with substantive policy reform, the SSCI investigation will amount to little more than an exercise in futility.