How the Intelligence Community Can Move Beyond the Torture Report

The fallout from the Senate's torture report will continue for years. Will the Intelligence Community be able to hold itself accountable for its past crimes? By Michael German

Editors Note: “ Rethinking Intelligence ” is a project of the Brennan Center for Justice at New York University School of Law that examines the contemporary U.S. intelligence community, which fellow Michael German argues “has grown too large, too expensive, too powerful, too ineffective, and too unaccountable to the American people.”

In this occasional series, Defense One presents a selection of commentaries and interviews conducted by the Brennan Center with officials from defense, homeland security, federal law enforcement, Congress, intelligence, and other groups who present their ideas to improve the business of American intelligence.

Their arguments tackle three fundamental questions: what is the scope of the new intelligence community, why does it sometimes fail, and how should the US reform it? For more, visit the Brennan Center online .

In a last ditch effort to delay the Senate Select Committee on Intelligence’s report detailing the CIA’s rendition, detention and interrogation programs, U.S. intelligence officials raised public alarms that it might spark anti-U.S. violence around the world. Sen. John McCain, R-Ariz., who supported releasing the document, conceded this result was possible, and “perhaps likely.” Brutality and injustice have predictable consequences, particularly where accountability for such crimes has been denied.

The question for these worried intelligence officials is why they didn’t predict this and other potential harms to national security before adopting torture and cruel treatment as official government policies. Indeed, these government officials often dismissed concerns of critics that warned that torture would undermine our national security efforts.

Jameel Jaffer, the deputy legal director of the American Civil Liberties Union, says that the need to hold government officials accountable underlined the ACLU’s investigation into U.S. interrogation practices back in 2003:


What became clear from the hundreds of documents the ACLU obtained through its Freedom of Information Act lawsuit, now confirmed by the Senate report, was not just that the government had officially approved the mistreatment and abuse of detainees, but that there was significant dissent within the government about these practices. In fact, Jaffer explains that it was the most experienced interrogators who most often raised objections.


But it didn’t take an experienced interrogator to know that torture would be ineffective and counterproductive. Basic research could have sufficed. The notorious 1963 CIA KUBARK manual on coercive interrogations contains frank warnings about the limits of these techniques. It says that while subjects under physical or psychological duress may yield, “Their ability to recall and communicate information accurately is as impaired as the will to resist.” Further, it says death threats have “often been found to be worse than useless,” and that intense pain “is quite likely to produce false confessions.”  KUBARK’s justification for using these techniques anyway was that “[c]onfession is a necessary prelude to a [counterintelligence] interrogation,” and that only someone pushed to the point of delusions would falsely confess to being a Soviet spy. Countless intervening studies of false confessions in coercive police interrogations, publicly available before the CIA initiated its torture program, have shown the opposite.

Intelligence officials were on notice that al-Qaeda operatives were trained to exploit evidence of abuse in custody for propaganda and recruiting purposes. British officials seized a purported al-Qaeda training manual in May 2000, which included detailed advice on how to resist torture, and instructions for reporting abuse as a means of undermining criminal prosecutions based on coerced confessions. Knowing al-Qaeda used evidence of torture to demonstrate the illegitimacy of the governments they opposed should have provided an incentive to prohibit abuse in U.S. detention and interrogation facilities, and to operate them in as transparent a fashion as possible.

The people the CIA tortured didn’t need a Senate report to confirm their abuse.

The decision to adopt torture as official policy represents a catastrophic intelligence failure on every level. Tactically, it produced unreliable information, handed terrorists a recruiting tool , put Americans in captivity at greater risk, fueled anti-American sentiment around the world, and undermined international cooperation on counterterrorism issues. Strategically, it undermined domestic law and international covenants prohibiting torture, damaged relationships with our allies, and destroyed our moral authority on human rights issues. Tyrants and dictators around the world will no doubt use the Bush legal memos to justify their own torture programs against political dissidents and human rights activists.

The moral, legal and political ramifications for those who tortured and those who approved torture will continue. While U.S. courts remain closed to victims of U.S. torture and abuse, foreign courts are stepping into the breach, prosecuting CIA agents and compensating torture victims. As our allies are being held responsible for their assistance to CIA activities, our continuing failure to do the same becomes more intolerable.

And of course, the harm done to Americans’ security continues to be felt as our troops brace for more violence.

But as Jaffer suggests, these difficulties were “not just foreseeable but foreseen.” Refusing to hold accountable the officials who ignored sound advice from knowledgeable insiders only increases the injury and the resulting public anger. After all, we’ve seen anti-U.S. violence around the world over for more than a decade. It is cynical for intelligence officials to suggest that the release of a report about CIA torture might now inflame such hostilities when the torture itself has long been a major part of the problem.

The people the CIA tortured didn’t need a Senate report to confirm their abuse, and they have not been nearly as derelict in talking about it as the CIA’s congressional overseers. The facts of torture, even the excruciating details, have long been disclosed. The U.S. government is the only entity that pretends the evidence of torture remains a state secret . As the ACLU argued , while trying to obtain justice for victims of CIA rendition, detention and interrogation practices, the only place torture still cannot be discussed is a U.S. courtroom.

It is long past time to lift the official veil of secrecy over U.S. torture programs that only succeeds in preventing accountability. Congress has the power and the responsibility to release its full 6,000-page investigation of the CIA rendition, detention, and interrogation program. This release should include the CIA’s internal examination of the torture program, known as the “Panetta Review,” which Sen. Mark Udall says contradicts the CIA’s published rebuttal to the Senate report. Through accountability, we can insure that torture never becomes official U.S. policy again.

As we enter a new phase of conflict in the Middle East based largely on intelligence assessments of potential threats to U.S. security, we must ensure that intelligence agencies are weighing the long-term effects of their actions. Employing counterterrorism measures that increase anti-American violence just isn’t intelligent.

To read an edited transcript of Jameel Jaffer’s interview, click here . The ACLU torture database is here .