By now we have a good idea of what is in the recent Senate Torture Report even without reading it. As soon as it became public in December, the media educated us, and in the process seared our consciences about the awful things done in our name.
Even so, it is still well worth reading the actual report. Thinking about this dark episode is beneficial.
In spite of the publicity surrounding it, the report continues to stun, horrify, and anger. We read again and in detail: How the CIA, for five years after 9/11, terrorized suspected terrorists with torture (euphemistically called enhanced interrogation techniques); how the evidence of torture—cruel, inhumane, and degrading—is “overwhelming and incontrovertible”; how such torture was ineffective and unproductive despite misleading claims to the contrary; how the CIA avoided or impeded congressional and White House oversight and decision making; how the CIA ignored internal criticism; how it destroyed videotapes of the interrogations; how these interrogations violated U.S. law and treaty obligations; how these interrogations were held offshore in secret foreign black sites to avoid scrutiny; and how the people being tortured by our fellow Americans were being held secretly without charge, indefinitely.
Yet the report is limited in scope. Because it is confined to CIA activities, it does not go into anti-terrorist policies by other parts of the government. It does not discuss legislation like the U.S. Patriot Act, prosecution of Muslim clerics, warrantless domestic searches, extraordinary rendition, drone strikes to kill U.S. citizens dubbed dangerous without judicial review, or denial of habeas corpus. Nor does it comment on what happened at the Abu Ghraib prison, memorialized in appalling photographs, during the early days of the Iraq war.
It is important for us as citizens to know about these activities and to know as much about them as possible. Democracy depends on it.
And while all this information is old news, the brutal facts still hurt.
Apart from the facts themselves, the report convincingly refutes the oft-repeated main justification for the CIA’s use of torture. In the final analysis, as it demonstrates, torture did not yield useful information or prevent loss of life. Of course, one of the primary reasons we in this country exclude coerced confessions as evidence is their inherent unreliability. Prisoners will understandably say anything to stop the pain. Even before 9/11, as the report points out, the CIA “determined from its own experience with coercive interrogations that such techniques ‘do not produce intelligence,’ ‘will probably result in false answers,’ and had historically proven ineffective.”
But the real and longer-lasting value of the report is its capacity to provoke thought about how and why this happened and how to anticipate and deal with such episodes in the future.
In her foreword, Sen. Diane Feinstein, chair of the Senate Select Committee on Intelligence, starts the inquiry on a high plane by focusing on context. Reading the report, she says, “it is easy to forget the context in which the [enhanced interrogation] program began.” She points to the “pervasive fear in late 2001 and how immediate the threat felt,” and how “we expected further attacks against the nation.” We all remember what it was like, especially here in New York.
Context, however, is no carte blanche. “[P]ressure, fear, and expectation of further terrorist plots,” Feinstein wisely writes, “do not justify, temper, or excuse improper actions taken … in the name of national security.” According to Feinstein, “the major lesson” of the report is that “regardless of the pressures and the need to act,” our actions “must always reflect who we are as a nation, and adhere to our laws and standards” and our “values.” Bad guys torture. Tyrants with barbaric secret police torture. ISIS tortures. We should not. That is, at least in part, what American exceptionalism is all about. Feinstein hopes that as a result of the report, “U.S. policy will never again allow for secret indefinite detention and the use of coercive interrogation.”
The difficulties with Feinstein’s fervent hopes lie in history and human nature. Throughout the life of our country, civil liberties have frequently suffered in times of public stress, anxiety, fear, anger and frustration. As Napoleon convulsed Europe in war in the late 1790s, John Adams had Congress pass the notorious Alien and Sedition Acts. In our Civil War, Lincoln suspended habeas corpus, jailed some critics, tried civilians in military courts, and limited freedom of the press. During World War I, Congress passed the repressive Espionage Act, which prohibited with severe penalties anything, such as speech, that supposedly interfered with our war effort, including mere criticism of the government or the draft.
Then, immediately after the First World War and following the Russian Revolution, a growing wave of radical unrest and violence produced a Red Scare that led to government raids on communists and anarchists, including the infamous Palmer Raids, and their criminal prosecution. Pearl Harbor led to the internment of 150,000 innocent Japanese-Americans. After World War II, a second Red Scare gripped America, and we experienced McCarthyism and prosecutions of American communists.
This long list of repressive reactions shows that they are a common thread, practically a tradition in U.S. history, as American as apple pie. It reflects deep-seated emotional and psychological needs. Is it any surprise, then, that our government reacted similarly after 9/11? The country felt an extreme but understandable anxiety, fear, frustration and even powerlessness about terror attacks. Those feelings, together with a dollop of hysteria and frustrated revenge, led to the excesses and misconduct described in the report. It happens.
However common this phenomenon is in our history, we desperately need to be wary of its consequences. The report vividly underscores Justice Louis Brandeis’s famous warning that we must “be most on our guard to protect liberty when the government’s purposes are beneficent. … The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
And we Americans always seem, in retrospect, to regret those encroachments and in some cases even make reparations many years later.
The report stimulates other thoughts as well. Torture differs from the cruelty of the battlefield. Since the beginning of time, soldiers in the field—scared, sleep-deprived, hungry, away from home, watching their buddies wounded and killed—have occasionally acted in the heat of battle with brutality and savagery against their enemies. This experience is graphically told by E.B. Sledge in his book “With the Old Breed,” about U.S. marines in the Pacific during World War II. That is not torture. Torture occurs when an unarmed captive or prisoner is totally under your control, and resembles pulling the wings off a helpless fly you are holding in your hand.
Another issue is the question of punishment. Should anyone be prosecuted or punished for such torture? So far no one has. Like Gerald Ford’s controversial pardon of Richard Nixon, President Barack Obama decided that investigating and seeking to punish possible misconduct by government officials following 9/11 would be counterproductive and viewed as partisan. I am not so sure.
Similarly, what about the CIA’s destruction of videotapes of interrogations? If a private litigant did something like that, everyone would be screaming “spoliation” and calling for “sanctions.” Why does the CIA get a pass on this? Should not such wrongful behavior have consequences? And is not such destruction of evidence at least some proof of a guilty conscience?
Then there is the thorny issue of the “national security” trump card in civil litigation. When the government is sued in a civil case, it can sometimes get the action dismissed by asserting a “state secrets privilege.” Why isn’t the government bound by the same rules as an ordinary defendant, and suffer a default judgment if it chooses not to defend on “national security” or “state secrets” grounds?
We are greatly in debt to this report. The most amazing thing about it is that it was in fact written and made public. Where else, in what other country, would the government expose and lay bare its own misconduct? Nowhere. To that extent, the system works, democracy works.
The report stands for a fundamental proposition that should guide us forever. In the powerful words of the report, “we cannot allow history to be forgotten and grievous mistakes to be repeated.”
In his first inaugural address, Obama rejected “as false the choice between our safety and our ideals.” Torture was one such false choice. Our “ideals still light the world,” and, as Obama said, “we will not give them up for expedience’s sake.”