Jane Mayer of the New Yorker has posted former CIA General Counsel and newly confirmed DoD General Counsel Stephen Preston's answers to questions submitted by Senator Mark Udall, about Senate Select Intelligence Committee's secret 6000-page study on torture and the CIA's response. Mayer's article focuses on Preston's answers, but Senator Udall's questions are equally revealing. They provide a wealth of new details about a heated conflict between the CIA and the Senate intelligence committee that, until now, had largely occurred behind closed doors.
Udall writes that despite taking over six months to draft, the CIA response:
largely responds to a small summary portion of the Committee Study, not to the material in the 300-page Executive Summary, or to the larger 6,300-page document. CIA personnel have confirmed that when the CIA response makes an affirmative statement about what the CIA believes is not in the Committee Study, the CIA response is merely referencing bullet points in a short 50-page section of the Committee Study that precedes the Executive Summary, not the larger Committee Study or its full Executive Summary. CIA personnel have further relayed that no one person at the CIA has read the full 6,300-page report.
Preston says that this was the result of a decision to take a "team approach" to the response. He does concede that "the Agency's response does not constitute an encyclopedic treatment of the SSCI's study."
Another question confirms that the $40 million price-tag of the Senate report was largely due to restrictions that the CIA placed on the underlying documents. Udall writes that the CIA not only required the Committee to review documents off site in Virginia, but: "insisted that CIA personnel -- and private contractors employed by the CIA -- review each document multiple times to ensure unrelated documents were not provided by a small number of fully cleared Committee staff."
Preston points out that these arrangements predated him, and defends them as a sincere effort to protect national security. Personally, I cannot see the risk to national security in allowing the CIA's oversight committee to review unrelated CIA documents. SSCI staff have very high-level clearances. And contrary to conventional wisdom about Congress, committee staffers have not leaked to the press about its report--at all. Virtually everything we know about it has come from Senators' official statements or leaks from anonymous CIA officials.
Udall also notes that during the CIA's document production, "the CIA removed several thousand CIA documents that the CIA believed could be subjected to executive privilege claims by the President," without an actual decision by the president to invoke the privilege. Preston responds that the decision to withhold the documents did, in fact rest with the White House; the CIA simply set the documents aside for further review and "deferred to the White House" about whether or not they should ultimately be produced. If so, that adds a new dimension to the Obama White House's determination to "look forward" with regard to detainee treatment.
Udall's questions also confirm important similarities between the SSCI report and the bipartisan, independent report that the Constitution Project's Task Force on Detainee Treatment released in April. (I was the investigator for the Constitution Project's report, and I have discussed its findings with Senate intelligence committee staff. One of the task force's major recommendations was declassification of the SSCI report).
Udall writes that the SSCI report contains a 128-page section on the CIA's factual representations to the Department of Justice about the interrogation program, which demonstrates that a great deal of inaccurate information was provided to the Department of Justice. The CIA has responded that "revisiting its factual representations and updating them as necessary... would not have had a practical effect" on the outcome of the Justice Department's review.
Perhaps the Bush-era OLC would have found a way to uphold the legality of torture no matter what factual claims the CIA made. But many of the opinions that Udall cites from 2004 onwards say otherwise -- particularly the May 2005 and July 2007 memos by acting OLC chief Steven Bradbury. Bradbury's memos (1, 2, 3, 4) relied very heavily on now-discredited CIA's claims that "enhanced interrogation" saved lives, and that sessions were carefully monitored by medical and psychological personnel to ensure that detainees' suffering would not rise to the level of torture.
As chapter 7 of the Constitution Project report states, "[t]he purported efficacy of the techniques was essential to their authorization as legal by the Justice Department's Office of Legal Counsel during the second Bush administration." For a detailed discussion of the problems with the CIA's factual representations to OLC about the efficacy of torture, see pages 265-275 of the Task Force Report. That is only based on the public record; the Senate report's discussion is likely far more detailed.
Bradbury relied equally heavily on the CIA's assurances that personnel from the Office of Medical Services would carefully observe every interrogation, and intervene before a detainee was in danger of severe pain or suffering, or prolonged mental harm. He wrote over and over that this was "essential" to his conclusion that techniques like waterboarding were legal. But as the Constitution Project wrote to the Senate in July:
It is a grave violation of professional ethics for doctors to participate in torture or cruel treatment, including by monitoring interrogation sessions where torturous or cruel methods are used... Health professionals cannot ethically condone any deliberate infliction of pain and suffering on detainees, even if it falls short of torture or cruel treatment.
The Obama administration takes the position that former black site detainees' medical diagnoses and medical records are classified, as are the detainees' memories about their treatment in CIA custody. But even based on the limited public evidence, the CIA's representations about lack of pain, suffering or harm to detainees are simply not credible. This is discussed at length in Chapter 6 of the task force's report, particularly pages 222-235.
It is past time for the CIA to stop trying to conceal this evidence. And it is past time for reporters to ask the White House why President Obama is letting them.