The Torture 68: Congressional Oversight or Complicity

The Torture 68: Congressional Oversight or Complicity
By Ben Davis

On February 25, 2010, the intrepid researchers at Jurist noted in Documents reveal CIA briefed lawmakers on enhanced interrogation techniques that 68 members of Congress in the period from 2001 to 2007 were briefed on the specifics of enhanced interrogation techniques. Some who have read my earlier piece about my exchange with Rep. Jane Harman at Duke in April 2005 (Congress, Torture and Romain Gary’s ‘Chien Blanc” December 10, 2007) will remember that in April 2005 in a public forum she left the distinct impression that she had not been briefed (read about it in the newspapers). We now have the beginning of the list and one can see that prior to April 2005 she had been briefed as had many many other members of the Legislative Branch in our separation of powers of the federal government.

But let us not focus on one member, let’s think of all 68. We are learning interesting things in the documents revealed. At page 32 of the documents one sees a nifty little quote from a Memorandum for the Record of Stan Moskowitz of the Directorate of Counter Intelligence/Office of Congressional Affairs of a Member Briefing of July 13, 2004 (Harman was there) in which then CIA General Counsel, Scott Muller – lays out the legal analysis in a no longer Top Secret document:

“The GC (note: CIA General Counsel Scott Muller) laid out the legal analysis. The Attorney General (note: John Ashcroft) has consistently advised the NSC Principals (note: Cheney, Rumsfeld, Tenet, Powell, Rice and Ashcroft – Bush of course is on record as approving: see – “Bush Aware of Advisors Interrogation Talks,” April 11, 2008) that the CIA techniques did not violate US statutes, met all obligations under the treaties, including Article 16 of the Torture Convention, and would not violate U.S. constitution standards were those standards to apply to aliens overseas. But the AG’s willingness to stand behind these prior statement changed after DoJ’s (note: Yoo/Bybee memo of August 1, 2002 it appears) the (sic) lengthy unclassified legal memo on interrogations leaked and after the Abu Gurayrabib scandal. CIA is now seeking to have DOJ reaffirm its prior written opinion that CIA’s techniques do not violate the torture statute, and to issue a new written opinion on Article 16 of the Convention Against Torture and U.S. constitutional standards. At the same time, CIA is seeking renewed policy approval from the NSC Principals to continue using the enhanced interrogation techniques.” (Emphasis added).

What a nifty memo – torture memo has leaked and Abu Ghraib has broken as a story and the CIA, the NSC Principals, and the AG are all in what is called in government parlance “CYA mode” but – do not worry – no “pressure” here. Or maybe they were just “freaking out” as we learned about our government leaders in the Yoo/Bybee Report released February 19, 2010. We can now understand why Dan Levin in his December 2005 memo to replace the Yoo/Bybee 2002 memo was “contexted” by then Alberto Gonzales to add a footnote that assured that anything in the new memo did not change the views on the advice in earlier memos on the techniques.

In working through the memos one comes across another gem, in a memo of Stephen Bradbury on the “black sites.” First, the parsing is to distinguish “conditions of confinement” (how one keeps a detainee) with “enhanced interrogation techniques” (how one interrogates a detainee). Of course, the two things work together in tandem to amount to treatment and punishment – but the memo parses this way with a predictable result. The memo focuses on post Detainee Treatment Act of 2005 conditions of confinement at the black sites and, of course, says everything is fine (A french policeman would say, “Circulez! Il n’y a rien a voir! Keep moving – nothing to look act). Applying a 5th Amendment balancing test standard based on Supreme Court pre-trial detention cases he finds nothing wrong.

There is a wonderful discussion of “white noise” with a quote that levels of white noise in the hallways are in the 68-72 decibel range and in the 56-58 decibel range in the detainee’s cells. It notes that the white noise is kept under 79 decibels. It says, “Indeed, normal conversation typically registers at approximately 60 decibels.” And, of course, there are the CIA assurances that the noise has had no effect on the detainees ability to sleep (any one note anything over the years on the use of sleep deprivation as an interrogation technique?).

Over at the American Tinnitus Association website there are a series of examples of what different decibel levels are. Note the 55-80 decibel range on the scale and think of trying to sleep with a sewing machine running next to you (60 decibels), a washing machine running (rinse cycle, anyone? 70 decibels), or an alarm clock (two feet away) 80 decibels.

Of course this is only one of several techniques that are put under the rubric of conditions of confinement (blocking detainees vision, shaving of head and facial hair, solitary confinement, white noise in the walkways, 24 hour cell illumination, shackling for hours related to dangerousness). None of these are enhanced interrogation techniques (that’s another memo), but merely conditions of confinement. If you were in that cell, would you make that distinction? But you can trust the DOJ lawyer working with the CIA lawyer to slice the apple that way.

And former Attorney General Michael Mukasey’s letter of January 19, 2009 to the OPR objecting to their report pushes hard for us to evaluate these memos in their “context”.

On context, one other nifty gem in this set of documents is at page 73 in an April 12, 2007 Classified Statement for the Record to the Senate Select Committee on Intelligence by then General Michael V. Hayden, Director, Central Intelligence Agency where it is stated that:

“At the entrance to an office in CIA’s Counterterrorism Center is a sign and a reminder: “Today’s date is September 12th, 2001.” We make no apologies for this attitude or for the lawful and legitimate actions we have taken to counter al-Qaida.”

I remember September 12, 2001 and the pressure in that environment. The OPR report tells us that DOJ lawyers were freaking out. And we see above that once the August 2002 memos and Abu Ghraib get out people go into CYA mode. At the same time, the memo writers all assure us that they were not pressured to come to a specific result. Guess it comes down to whether you define “pressure” as “context.”

Where were the cool heads in Congressional oversight or in these various Executive meetings who spoke with the virulent skepticism of an Alberto Mora or a William Taft IV of the risk of crimes of state? Were all these people to whom we give the public trust “freaking out?”

Might I suggest that the CIA put “Today’s date is September 10, 2001.” on its Counterterrorism center door as opposed to September 12, 2001. That is before the horrible attack has happened and the period in which connecting the dots was far more important in averting such a disaster. That period of uncertainty about the next attack is where we are at and is where we stand now. And, we ask them not to apologize for lawful and legitimate actions. We ask that they be prosecuted for the unlawful and illegitimate actions – crimes of state – including the lawyers. Maybe some meaningful Congressional oversight can also be part of that process – oversight that is not freaking out but takes a view that is consistent with the values America espouses to itself and the world.