WASHINGTON -- Americans woke up Wednesday forced to reckon with the gruesome findings of the Senate Intelligence Committee's gut-wrenching report on the CIA's post-9/11 torture program. But despite the many sobering revelations in the summary of the report released Tuesday, there are notable gaps in the Senate study that make it unclear what purpose the investigation will serve in the future. The report leaves both the agency’s defenders and its critics asking the same question: Now what?
The study offers no recommendations for improving the systemic problems it highlights. It suggests no legal action against any of the alleged perpetrators -- even the CIA officers who, the investigators claim, committed some of the program’s grossest abuses. And it fails to clearly assign responsibility to the high-level Bush administration officials who have publicly said that they were fully briefed and that the agency did not misrepresent information on the torture program.
These gaps are even more striking given that the original terms of the Senate study specified that the investigation was meant to change interrogation policy going forward.
“The purpose is to review the program and to shape detention and interrogation policies in the future,” Senate Intelligence Committee Chair Dianne Feinstein (D-Calif.) wrote in the 2009 press release announcing the study. The release said that the investigation would focus on the CIA’s management of the program, the basis for detaining certain individuals, the legal backing for the program itself and an evaluation of the information that was obtained through the use of enhanced interrogation techniques.
But the study clearly focused primarily on the last of those areas. At least in the 500-page summary that was made public, the investigators neglect to comprehensively examine the role of top Bush administration officials in commissioning and authorizing the CIA program. They also decline to provide recommendations about how to prevent such a program from being re-established.
The CIA, for its part, offered its own recommendations for reforms in a rebuttal issued Tuesday, citing the absence of such proposals in the Senate report. These recommendations include implementing new mechanisms to provide consistent, timely information to the Justice Department and updating the agency's requirements about the way sensitive programs are operated.
In its rebuttal, the CIA took particular issue with the Senate panel's failure to examine or even clearly acknowledge the role of high-level Bush White House officials. The spy agency has insisted that it conducted the program with approval from people high up in the administration, while the Senate panel charges that the CIA acted in defiance of orders.
The Senate investigators could, of course, defend themselves against charges of an incomplete study by pointing out the narrow scope of their investigation: The panel has jurisdiction over the intelligence community, but not over the White House. Originally, the investigation was arranged only between Feinstein and then-CIA Director Leon Panetta, although the arrangement contained some ambiguity that could have allowed Feinstein's staff to argue for access to White House records as well.
Panetta acknowledges in his recently released memoir that he agreed to Feinstein’s investigation without consulting the White House. In 2009, he approved a massive disclosure of millions of CIA documents to Feinstein's staff, but did not seek the blessing of the Oval Office.
And its occupant, Panetta points out, was incensed.
“The president wants to know who the f**k authorized this release to the committees,” Panetta recalled then-White House chief of staff Rahm Emanuel saying at a Situation Room meeting not long after the arrangement was made. “I have a president with his hair on fire, and I want to know what the f**k you did to f**k this up so bad!’”
But Obama need not have set his hair on fire. The CIA produced over 6 million cables, documents and records to the Senate committee, but White House documents were not included. In fact, the CIA appears to have gone out of its way to keep the White House uninvolved with the Senate probe.
The agency took special care to comb the huge document dumps to ensure that nothing from White House paper trails made its way into Senate hands. According to Feinstein, the CIA even went back into Senate computers -- potentially violating a user agreement between the committee and the agency -- to take back certain documents it determined could have been subject to executive privilege.
The Obama White House itself has also made efforts to keep the Bush administration from being investigated by the Senate panel. The current administration withheld more than 9,400 Bush-era documents from Feinstein’s investigators throughout the course of the study, despite repeated requests from the panel that staff be given some way to review the material. The Obama administration's efforts to shield its predecessor from the Senate investigation may demonstrate that institutional protection of the White House often trumps an administration's political and moral agendas.
Asked earlier this year about the documents, the White House admitted that a “small percentage” -- it would not specify the precise number -- of the more than 6 million documents provided to the committee were ultimately withheld, citing “executive branch confidentiality interests.”
The Senate committee notes these missing documents in its study in a footnote, saying it issued multiple requests to the White House to review those documents, but received no response. In fact, according to a U.S. official who asked not to be named due to the sensitive nature of the discussions, no White House documents were ever provided to the committee throughout the course of its investigation. The panel's evidence pool was limited to CIA documents.
Yet the committee still concludes in its report that the CIA lied to the White House and misled its commander-in-chief while operating the program. How Senate investigators were able to reach that conclusion without White House documents is unclear.
The document says that then-President George W. Bush was not fully briefed on the agency's program until 2006, at which point he appeared uncomfortable with the treatment of detainees. It also suggests that while the program received the approval of then-Vice President Dick Cheney, then-National Security Advisor Condoleezza Rice and others in the Bush administration, those officials were misguided by inaccurate information that the CIA provided to the White House.
Despite the Senate panel's apparent failure -- whether intentional or limited by its document pool -- to examine the role that high-level Bush administration officials played in the program, several officials have acknowledged their direct involvement, including Bush and Cheney. Reports emerged prior to the document's release that several of those former Bush administration officials planned to defend the CIA, despite pressure from some quarters to disavow the agency's tactics.
In 2008, the Senate Armed Services Committee conducted its own extensive examination into the Defense Department’s role in the torture program, but the inquiry’s focus was, similarly, hamstrung by narrow jurisdiction.
Advocacy groups say this latest report won't be the end of the nation's effort to come to terms with its own use of the controversial interrogation tactics. For years, chatter has bounced around Washington about an independent special investigative panel with the capability to examine the Bush White House’s role in the use of torture.
“There will probably be more inquiries open because of this report,” said Laura Pitter, senior national security counsel for Human Rights Watch. “This is going to be the first step towards accountability.”
But the Senate Intelligence Committee's report, the product of over 5 years of investigation and $40 million in taxpayer dollars, is touted as the authoritative accounting of the use of torture in the years following the 9/11 attacks. The study could well be the most comprehensive official telling the world is going to get.
The report may pave the way for some former CIA detainees to reopen lawsuits against the U.S. government. Details of the document that were leaked before the official release have already pumped new life into old court filings, and others may follow.
There is also potential for the document to inspire legislation, though the study doesn’t specifically outline a strategy for doing so. Congress tried to tackle the issue of waterboarding in 2008, when it passed a bill severely limiting the CIA’s ability to use harsh interrogation techniques. Bush, however, vetoed that bill.
Upon taking office, Obama outlawed the use of enhanced interrogation techniques through an executive order. But skeptics note that his order could easily be rescinded if a more torture-friendly administration takes the White House in the future. Congress, for its part, has failed to put together its own ban on torture, which, if signed into law, would be far more difficult to dismantle.
Senate Intelligence Committee member Martin Heinrich (D-N.M.) said that he and his colleagues were considering proposing legislation to mandate the full report's release, in order to bypass the logjam of disputes that held up the process for months. But he added that with Sen. Richard Burr (R-N.C.) set to take over the panel in January, that possibility has diminished.
“There was talk about trying to force declassification through the legislative avenue that is there, but I think the time has run out for that,” Heinrich, a staunch advocate of the document’s release, said last week. “I think it’s safe to say that, with the change in leadership, there’s no way they’ll go along with that.”
There was little discussion of new legislation on Capitol Hill Tuesday, where lawmakers seemed more focused on celebrating the report's release than on tackling questions about future action.
“Today is about getting the facts in front of the American people,” said Sen. Ron Wyden (D-Ore.) “I haven’t heard any senator on any side talking about bills or anything else.”
The release of the 500-page executive summary was halted for months by a protracted dispute over information that the White House and CIA wanted to keep secret. After extensive negotiations, the executive branch and the intelligence panel came to an agreement last week.
Feinstein has previously said that the greater portion of the report, which is over 6,000 pages long, will be declassified at a later date. But with Republicans set to take control of the committee, that's unlikely to happen anytime soon.