By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
I. The payback meme (“I am against torture, but…”)
“I have always been steadfastly against torture as it felt like nothing less than compromising the American soul and giving our enemies in al Qaeda a gift they could use to inspire and recruit and assert, “see, they’re worse than us.” And pragmatically we know little to no actionable intelligence came from torture. Detective work and treating detainees with respect is much more effective. But as I watched contractors and operatives beat our enemies to a pulp and treat them inhumanely, I wondered if I were in their boots during that time of war, charged with making radicalized men talk on behalf of an angry nation in mourning, could I have not tortured? Would I have been seduced by the potential of just beating information out of someone I hated? I imagine that if I had been CIA at that difficult moment in history I probably would have done what they did.” Toure, The Cycle, A painstaking path to vengeance in “Zero Dark Thirty,” December 21, 2012, available at http://tv.msnbc.com/2012/12/07/toure-a-painstaking-path-to-vengeance-in-zero-dark-thirty/ 
II. The “no one can know (hint hint it’s all political)” meme, the “keep the torture works meme alive” meme, and “let the torturers hide behind the military that loyal citizens support” meme
Statement to Employees from Acting Director Michael Morell: “Zero Dark Thirty”
December 21, 2012
I would not normally comment on a Hollywood film, but I think it important to put Zero Dark Thirty, which deals with one of the most significant achievements in our history, into some context. The film, which premiered this week, addresses the successful hunt for Usama Bin Ladin that was the focus of incredibly dedicated men and women across our Agency, Intelligence Community, and military partners for many years. But in doing so, the film takes significant artistic license, while portraying itself as being historically accurate.
What I want you to know is that Zero Dark Thirty is a dramatization, not a realistic portrayal of the facts. CIA interacted with the filmmakers through our Office of Public Affairs but, as is true with any entertainment project with which we interact, we do not control the final product.
It would not be practical for me to walk through all the fiction in the film, but let me highlight a few aspects that particularly underscore the extent to which the film departs from reality.
- First, the hunt for Usama Bin Ladin was a decade-long effort that depended on the selfless commitment of hundreds of officers. The filmmakers attributed the actions of our entire Agency—and the broader Intelligence Community—to just a few individuals. This may make for more compelling entertainment, but it does not reflect the facts. The success of the May 1st 2011 operation was a team effort—and a very large team at that.
- Second, the film creates the strong impression that the enhanced interrogation techniques that were part of our former detention and interrogation program were the key to finding Bin Ladin. That impression is false. As we have said before, the truth is that multiple streams of intelligence led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad. Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.
- Third, the film takes considerable liberties in its depiction of CIA personnel and their actions, including some who died while serving our country. We cannot allow a Hollywood film to cloud our memory of them.
Commentators will have much to say about this film in the weeks ahead. Through it all, I want you to remember that Zero Dark Thirty is not a documentary. What you should also remember is that the Bin Ladin operation was a landmark achievement by our country, by our military, by our Intelligence Community, and by our Agency.
Michael MorellPosted: Dec 21, 2012 03:08 PMLast Updated: Dec 21, 2012 03:59 PMLast Reviewed: Dec 21, 2012 03:08 PM
Compartmentalization is one of the key tasks I understand of intelligence services – keeping everyone in the loop on a need to know basis. The implication with state secrets is that the citizen has no need to know.
That is wrong.
What the citizen has is a right to the truth from his government. One might say that in a representative democracy where the sovereignty is derived from the citizen bottom-up and not from a divine right of kings that was top-down, the lowly citizen in all his/her ignorance contains in themselves a spark of sovereignty that legitimizes the government, both in the separation of powers and in our federalism. And it is in that construct of dual sovereigns that the citizen’s rights are hoped to be protected against despotism of the kind we fought in the American revolution.
As each citizen has such a spark of sovereignty in them, then the payback meme presented so eloquently – if out of misguided immaturity or naivete - by Toure above shows the exact moment when that citizen abdicates responsibility for his state being a state where the rule of law is to be applied and takes responsibility for being in favor of his state applying the law of the jungle in a state of exception.
In this so-called opponent of torture, it is precisely at the moment in the above quote where he uses the famous “but” in the sentence that starts, “But as I watched contractors and operatives beat our enemies to a pulp and treat them inhumanely, I wondered…”
That “but” is the moment that the ordinary citizen abdicates their role and unleashes the gates of hell in their soul, and by extension, in the state that they legitimize. That “but” calls forth the more primal part of the human brain to exact its brutality on someone perceived as an enemy - the kind of primal brutality that we have seen over and over in both ancient and more recent history. The range of brutality by the private citizen called forth of course reaches the shocking horror of a Newtown, but it is found in other horror such as domestic violence, in gang violence, in soccer hooliganism, in 9/11 attacks, or even in middle school to classmates, and on and on.
In civilization, we try to channel that primal nature in all men and women through morality, through law (especially criminal law, but also tort, contracts, and constitutional law as well as international human rights, international humanitarian law, international criminal law, and the right of diplomatic protection of aliens and their property), and through training of our military and intelligence personnel.
Toure’s response is no doubt made with his moral training but without the legal training, nor the training that we provide our military and intelligence types. His primal scape, therefore, represents the raw private citizen’s primal scape without the tethers of the threat of criminal sanction or meaningful training about dealing with these perceived enemies. Unfortunately, when the threat of criminal sanction or meaningful training is absent, what we have shown over and over as Americans is we are quick to descend into a lynch mob with torture and murder of “our enemies” an extreme part of that motif. We are, of course, not alone in the world in this descent into our primal selves against “our enemies.”
Toure thus looks at these scenes as an untrained someone who can not really put himself in the shoes of those intelligence agents and contractors because he has not received the training that we give them. His acquiescence in that violence depicted in the film is merely a recognition of that primat nature in all of us – the untrained feral self.
Now, in war, the servitors of the state which is to have a monopoly on violence are expected to apply that violence against the perceived enemies of the state. Yet, in granting that power to have the monopoly on violence to the state, the question that confronts us is to what extent a citizen might cede his own primal barbarism to that state when it exerts that violence on our enemies. We have seen that primal barbarism unchecked in history in states where violence on other people perceived as enemies was endemic to the manner in which that state operated. In those states where international human rights exist for each person, though not recognized by the state, official lawlessness is unchanneled and untrammeled except by the whim of the leader or his supporters. Let us imagine Stalin’s Soviet Union, Hitler’s Germany, Kim’s North Korea, Pinochet’s Chile, and Amin’s Uganda as such settings. In an earlier age we would call this despotic power.
In our revolution, we fought against that despotic power and in our Constitution’s structure sought to create a double protection of the rights of the people against that risk of despotic power by the state. Moreover, in placing the power to declare war in the Legislature, our framers sought to channel the force of the state in a manner that would assure that the citizen’s representatives – not a President alone – would determine to what extent the force of the state would be exercised against the perceived enemies of the United States.
Our path is not the only the path. Other nations have had their share of horrors and attempt to create structures that will channel any primal barbarism in the state in a manner that protects the people and holds that state in check in its dealing with other states in the international community. States have accepted international law and institutions as part of this means of reining in the potential barbarism of the state that devolved into two horrendous World Wars in the last century.
As part of that effort to channel the state’s monopoly of violence, we have passed laws in our domestic arena and our state has accepted obligations on the international plane. Two of the highest level obligations (peremptory norms in the parlance) are the prohibition against aggressive war and the prohibition against torture, cruel inhuman or degrading treatment. The community of nations have raised these to be very high level norms (not a treaty on trade level but much higher) because of the states and by extension their people in representative democracies understanding the kind of primal barbarism of which the powerful modern state has demonstrated it is capable.
Part of implementing such restraints on state primal barbarism is the training of military and intelligence types in the laws of armed conflict – the Geneva Conventions and all that – so that they understand what is legally permissible and what is a crime. Another part of this superstructure is to have in place domestic and international mechanisms for holding accountable those who deviate from these high level norms. Of these mechanisms, tribunals of the kind like Nuremberg or the International Criminal Tribunal for Yugoslavia operate at international levels but our ordinary courts and military courts-martial also serve a key function in controlling what the French would call derapage by the state’s servitors.
When we no longer require that adherence to the rule of law by the state which has the monopoly on violence, we acquiesce in that vast power descending into primal barbarism. We acquiesce by an immobility that comes from fear. And when those servitors betray their training and descend into primal barbarism – whether or not authorized by those above them – they commit the kinds of crimes we have come to call war crimes and crimes against humanity and aggressive war. In case there is a need for me to remind people of this point even in their fear, war crimes, crimes against humanity, and aggressive war are lawless acts of the highest order and the most repugnant to human dignity and civilization.
That brings us to the second quote above – a statement from the acting head of the CIA Director Morell. One of the problems with official state lawlessness such as state torture that has been amply demonstrated to anyone who has been watching the United States for the past 12 years or so is the terrible difficulty for such a state to excise itself of its torturers. For one thing, when the torture is ordered by the President, the President (not the Presidency which is a Constitutional contruct that is separate from each individual who sits in that chair) as faithful executor of the law sets the example of acting without law and the consequence throughout the hierarchy is a descent into barbarism. Those who are trained in compliance with law may resist, but ambition to please is so endemic to a hierarchy that one can always find servitors willing to do a given President’s lawless bidding.
Director Morell’s response on ZDT illuminates that bureaucratic problematic most eloquently. He decides to “close ranks” with all within the intelligence community – the torturers and those who resisted torture – as the least common denominator type of response to ZDT that he suspects will lead to bureaucratic cohesion at the CIA. He is “defending his people” so to speak in the inimitable way so many leaders do and, in a sense, in a more full-throated way then he did last December 14, 2012 when he gave a muted defense of “his people” to the approval of the devastating Senate Intelligence Committee Torture Report.
The particular defense he does in this letter is problematic for the citizen. On the one hand, I read last December 13, 2012 a letter from Senator Feinstein and the letter of the three Senators of December 20, 2012 to Sony Picture in which the torture is described as “ineffective and counterproductive.” On the other hand, Acting Director Morell writes above in his “second” paragraph that “As we have said before, the truth is that multiple streams of intelligence led CIA analysts to conclude that Bin Ladin was hiding in Abbottabad. Some came from detainees subjected to enhanced techniques, but there were many other sources as well. And, importantly, whether enhanced interrogation techniques were the only timely and effective way to obtain information from those detainees, as the film suggests, is a matter of debate that cannot and never will be definitively resolved.”
As an ordinary citizen, reading what I can from what these officials are saying to me in the two bolded quotes in the paragraph above I am seeing night described as day and day being described as night. The Senate Intelligence Committe Torture Report cover letter says “ineffective and counterproductive” and the Acting Director of the CIA says “timely and effective way to obtain information from those detainees.” Am I the only one who sees this fundamental contradiction between the two statements?
Now, there is one fundamental difference between members of Congress and the head of the CIA – congressional immunity under the Constitution. The head of the CIA and the people that work for him at most have a form of qualified immunity or in international law terms – rationae materiae – sometimes incorrectly translated by folks like Professor Curtis Bradley as conduct immunity. That form of qualified immunity is not a Constitutional command as is Congressional immunity but is a construct of our judicial system through its view of emanations from the reality that the federal government operates through persons. It is the kind of judicial construct that we find with the absolute immunity given a President while in office – nothing stated directly by the Constitution on this, nothing at all.
Put another way, the members of the Senate Intelligence Committee - no matter how much they did not oversee the intelligence community or even participated in encouraging the torture - have Constitutional legislative immunity. The CIA types who did the torture only have a judicial construct. That judicial construct has been deployed rigorously in civil cases with great success so far, and criminal cases have been successfully kept at bay so that a criminal test of its extent has not yet occurred.
Given this asymmetry of immunity, the person with the greater interest in covering the people as a matter of bureaucracy or potential criminal liability for him or his organization’s people (present and former) results in the response to ZDT above of the CIA director. That response being more full throated in defense as compared to the response to the Senate Intelligence Committee Report demonstrates to me a credibility gap on the CIA side. Those writing for the Committee who approved the report have been resolute in their condemnation of the torture as “ineffective and counterproductive” based on the 6000 page report and the review of millions of documents. The head of the CIA responds in a John Rizzoesque fashion (See the IG report on the torture memos for an example of this) trying to open a path for the torture defenders to now come forward more forcefully where there was no path before.
This point then leads us to the “we shall never know” part of the CIA head’s message to his people. Some would look at that as a benign statement of resignation with the vicissitudes and uncertainties of knowledge.
I see it as a promise by him to the CIA people that he will do his level best to make sure that none of them face a criminal prosecution in a court where a public record and a determination of guilt would answer the more essential point underlying his statement: torture that remains a crime was done on a massive scale across the world at the behest of the highest levels of the American government through and by the CIA.
Acting Director Morrell’s pitch to his people and publication to the rest of the world serves several final purposes. First, given the cheering done for ZDT by the Deputy of the Office of Public Affairs as ZDT being “the film,” he distances himself from that staff person as part of his closing ranks with his line persons in the clandestine and other services. It is hard being a public relations flak in this life. Second, he also distances his organization from the film’s depictions because he has come to realize that 1) the CIA is not going to be seen in as glowing a light as they might have thought when giving the access they did give and 2) the film may have unforeseen circumstances around the world as people who look like the people tortured and not like the torturers or people from countries with memories of torture more recent than Americans react to what they see in the first 38 minutes of the film. From public relations boom to public relations disaster. Moreover, with the almost simultaneous with the release of ZDT approval of the devastating Senate Intelligence Committee Torture Report, an obvious discontinuity between what is being sold to the ordinary citizen at the movies and what the representative government types say to themselves went on has been laid bare in a most obvious manner.
Director Morrell of course, by his letter, encourages another meme which is that “this is all politics.” I saw a Joby Warrick on MSNBC earlier today saying that as part of his interview as a movie critic (Thiessen still keeping silent Washington Post, what’s up with that?). This kind of message is a way of encouraging acquiescence by Americans – a kind of American consumer nihilism about what its government does that was expressed on Martin Bashir’s show on Thursday as “As long as I am safe, I do not care what they do.” This form of nihilism has its roots in all kinds of horrendous things in American history and is part of what Toure’s “but” analyzed above, unleashes in us.
Finally, hiding behind the troops and dead CIA agents is another appeal to another form of American patriotism that plays on the same nihilism. At a primal level and more higher order, we have an abiding respect for our soldiers – it brings this citizen to tears to see them. Having that aura flow to the intelligence types is what Director Morrell does in his letter. Having the military cover for the intelligence types is something that has come to bother me for some time. Those soldiers at Abu Ghraib who were court-martialed for betraying their UCMJ obligations did those horrendous things at the request of intelligence types. Who is made to carry the water? Those soldiers trying to please the people who seem to have had the authority. More recently the military commission law is a structure to have our JAG’s provide a judicial-like process that hides the CIA’s torture out of sight. We are made to think that questioning the military commission is questioning the integrity of our military. Of course, if one thinks about it for more than a nihilist second, that is absurd. It is a rule of law to have a regularly constituted tribunal hear these cases – and to question these tribunal d’exception follows a long tradition of skepticism of state efforts to create guilt conveyor belts to hide its unpleasant activities/crimes. Even the guilty deserve a fair trial in a civilized nation – I thought this too was pretty basic in America.
None of this is too complicated. None of this is politics. All of this is about criminal accountability for a tremendous crime that had official sanction.
For this citizen, the path forward in this setting is really quite simple.
First, boycott Zero Dark Thirty. Government-embedded propaganda is trash (see how bad this is http://www.salon.com/2012/12/20/pentagon_cia_likely_approved_zero_dark_thirty_torture_scenes/ ). If one needs to see torture, just google Abu Ghraib torture photos.
Second, release the Senate Intelligence Committee Torture Report “as is” to the American people now. We have now arrived at the day of reckoning. No more shucking and jiving by CIA types especially the middle schoolers with security clearances.
Third, given the inability of four successive attorney generals to grapple with the enormity of this crime, empanel an independent prosecutor to follow the “chips where they may.” After all, we know that people died in the torture so we are certain that the statute of limitations has not run on those who put it in place.
Fourth, close down the military commissions and put the cases in court. The Military Commissions Acts appear more and more to be acts that place wonderful lawyers and a judge in a forum that is destined to be powerful theater – even kabuki theater – as it seems much of what it is about is being kept from the eyes of the ordinary American citizen – especially the torture. This citizen wants justice for 9/11 and the Cole, not vengeance that demeans America.
Fifth, continue training our military and intelligence types in a manner that complies with the rule of law including international humanitarian law. I am not against killing enemies in war, I am against war crimes and aggressive war.
Defend America: it is a representative democracy, not a despotic lawless state. At least that is the way this citizen was raised to ensure with my spark of sovereignty.