April 18, 2009
One day after the Obama administration released four gruesome Bush-era legal opinions that described in shocking detail the torturous methods CIA interrogators were permitted to use to extract information from alleged "high-value" detainees, a majority of Democrats have remained collectively silent on whether the disclosures warrant a full-scale criminal investigation.
By comparison, revelations by the New York Times earlier this week that the National Security Agency, during George W. Bush’s last days in office, went above and beyond the legal limits imposed by Congress on its domestic surveillance activities was met with widespread condemnation by powerful Democratic leaders, who demanded investigations and said those who broke the law must be held accountable.
For example, Speaker of the House Nancy Pelosi said in a statement Thursday the allegations about the NSA’s surveillance activities "deserve and are receiving the fullest attention of the appropriate committees of Congress."
"Congress expects to receive reports from the Inspectors General of key agencies regarding warrantless wiretapping activities, including those conducted under President Bush’s Terrorist Surveillance Program," Pelosi said. "Should these reports or any further investigations by Congress prove these allegations true, those who directed these activities in the Bush Administration must be held accountable."
At least a dozen other Democrats issued statements similar to Pelosi’s, demanding investigations and calling for those who skirted the law to be held accountable.
Yet Pelosi did not issue a statement on the contents of the torture memos nor did she comment on whether the revelations warranted a similar investigation or accountability.
With the exception of two Democrats, not a single lawmaker called for an investigation on the scale of what has been proposed by Pelosi.
Rep. Jerrold Nadler, D-NY, has called on Attorney General Eric Holder to appoint a special prosecutor to launch a criminal inquiry.
"The congressman has been in contact with the Attorney General's office regarding his concerns on a number of critical issues, including the need for an independent counsel to investigate, and where appropriate, to prosecute those responsible for the illegal torture of detainees," said Ilan Kayatsky, a spokesman for Nadler, in an interview Friday.
"He believes that, thanks to this administration's commitment to greater transparency, the Attorney General's forthright statement that waterboarding is torture, and the admission by Vice President Cheney that he authorized waterboarding, there can no longer be any question that there must be an investigation into precisely what happened and who is responsible, and to hold those responsible accountable. The Congressman fully intends to keep pressing for the appointment of an independent counsel."
John Conyers, the chairman of the House Judiciary Committee, said Friday he does not understand "statements by the President and the Attorney General yesterday on the issue of potential prosecutions to address the senior officials and government attorneys who crafted and approved these programs."
"Further, yesterday’s statements did not address the legality of any conduct that exceeded even the minimal boundaries established by the [Office of Legal Counsel] memos, or any interrogations that occurred before legal guidance was provided," Conyers said. "We must have a full investigation of the circumstances under which these torture methods were created, approved, and implemented, preferably by an independent commission as I previously proposed."
"And if our leaders are found to have violated the strict laws against torture, either by ordering these techniques without proper legal authority or by knowingly crafting legal fictions to justify the torture, they should be criminally prosecuted. It is simply obvious that, if there is no accountability when wrongdoing is exposed, future violations will not be deterred."
But Conyers, who as recently as last month called for the appointment of a special prosecutor to investigate torture, has not followed through as he did in June 2008 with a formal request to the attorney general.
Still, the silence on the question of accountability among a large majority of Democrats begs the question: were Democrats aware of the CIA’s "enhanced interrogation" program and are refusing to call for a wide-ranging probe because they approved of the torture?
According to former CIA Director Michael Hayden and former Attorney General Michael Mukasey, the brutal interrogation methods, such as slamming a detainee’s head against the wall dozens of times and the use of waterboarding, "were disclosed repeatedly in more than 30 congressional briefings and hearings beginning in 2002, and open to all members of the Intelligence Committees of both Houses of Congress beginning in September 2006."
"Any protestation of ignorance of those details, particularly by members of those committees, is pretense," the former Bush officials wrote in an op-ed published in the Wall Street Journal Friday. Their op-ed sharply criticized the Obama administration's decision to release the four Justice Department Office of Legal Counsel (OLC) memos.
They wrote "disclosure of the techniques is likely to be met by faux outrage, and is perfectly packaged for media consumption."
Claims that Democrats were fully briefed on the Bush administration’s torture program have been leveled as recently as last December by Vice President Dick Cheney and in books by former Bush officials such as John Yoo, the former Deputy Assistant Attorney General at the OLC who helped draft one of the four memos released Thursday.
Representatives to the current and former Democrats who served on the House and Senate Intelligence Committees—including Pelosi—would not respond to Mukasey and Hayden’s claims about what they knew and when they knew it.
A spokesman for Sen. Jay Rockefeller, who chaired the Senate Intelligence Committee, referred me to a statement posted on his website, which essentially applauded Obama and Attorney General Eric Holder for releasing the memos but did not go further.
In December 2007, the Washington Post reported that in 2002 Pelosi, who was a member of the House Intelligence Committee during Bush’s first term, Sen. Bob Graham, D-FL, and Rep. Jane Harman, D-CA, and a handful of Republican lawmakers, were "given a virtual tour of the CIA’s overseas detention sites and the harsh techniques interrogators had devised to try to make the prisoners talk."
"Among the techniques described [to the lawmakers], said two officials present, was water-boarding, a practice that years later would be condemned as torture by Democrats and some Republicans on Capitol Hill," the Post reported. "But on that day, no objections were raised. Instead, at least two lawmakers in the room asked the CIA to push harder, two US officials said."
The Post story also made identical claims that Hayden and Mukasey leveled in their column: that Pelosi and other Democratic leaders were privately briefed at least 30 times. Those briefings, according to the Post, "included descriptions of [water-boarding] and other harsh interrogations methods."
Questions about what the Democrats knew about the CIA’s torture program were raised two years ago when it was revealed that the CIA had destroyed 92 interrogation videotapes in November 2005 and that the agency had informed Democratic lawmakers about its plans.
Following the disclosure, Harman’s office released a February 2003 letter she wrote to the CIA advising the agency against destroying the videotapes. The CIA declassified Harman's letter at the congresswoman's request.
"You discussed the fact that there is videotape of [high-level al-Qaeda operative] Abu Zubaydah following his capture that will be destroyed after the Inspector General finishes his inquiry," Harman wrote. "I would urge the Agency to reconsider that plan. Even if the videotape does not constitute an official record that must be preserved under the law, the videotape would be the best proof that the written record is accurate, if such record is called into question in the future. The fact of destruction would reflect badly on the Agency."
But Harman's letter did not raise concerns or express disapproval about the CIA's use of so-called "enhanced interrogation techniques." Instead, her letter advised the agency against destroying the videotapes were made out of concern the footage CIA agents captured "would be the best proof that the written record is accurate, if such record is called into question in the future."
Still, Hayden and Mukasey’s claims that Congress had been fully briefed on the interrogation program underscores the need for an investigation and should lead members of Congress to demand sworn testimony from Hayden in particular.
Hayden, it would appear, may not be telling the truth about whether the CIA fully briefed Congress about the extent of the CIA’s interrogation program.
In an interview with Newsweek last month, Sen. Dianne Feinstein, who now chairs the Senate Intelligence Committee and has launched a "review" and "study" of the CIA’s interrogation methods, said, ""I now know we were not fully and completely briefed on the CIA program."
Feinstein was reacting to a secret report by the International Committee of the Red Cross that was leaked, which described, in shocking detail, the techniques used to interrogate 14 "high-value" detainees.
Interestingly, the magazine quoted an unnamed "U.S. Official" who disputed the charge, and claimed "that members of Congress received more than 30 briefings over the life of the CIA program and that Congressional intel panels had seen the Red Cross report."
Whether that unnamed official was Hayden is unknown. A representative for the former CIA chief did not return calls for comment.
To cast further doubt on Hayden’s claims, Congress should speak to Mary O. McCarthy, a former deputy inspector general at the CIA.
Three years ago, McCarthy said senior agency officials lied to members of Congress during an intelligence briefing in 2005 when they said the agency did not violate treaties that bar, cruel, inhumane, or degrading treatment of detainees during interrogations, according to a May 14, 2006, front-page story in The Washington Post.
"A CIA employee of two decades, McCarthy became convinced that 'CIA people had lied' in that briefing, as one of her friends said later, not only because the agency had conducted abusive interrogations but also because its policies authorized treatment that she considered cruel, inhumane or degrading," The Washington Post reported.
"In addition to CIA misrepresentations at the session last summer, McCarthy told the friends, a senior agency official failed to provide a full account of the CIA's detainee-treatment policy at a closed hearing of the House intelligence committee in February 2005, under questioning by Rep. Jane Harman (California), the senior Democrat," The Washington Post reported. "McCarthy also told others she was offended that the CIA's general counsel had worked to secure a secret Justice Department opinion in 2004 authorizing the agency's creation of "ghost detainees" - prisoners removed from Iraq for secret interrogations without notice to the International Committee of the Red Cross - because the Geneva Conventions prohibit such practices."
In 2004, McCarthy was tapped by the CIA's Inspector General John Helgerson to assist him with internal investigations about the agency’s interrogation methods.
"In his report, Mr. Helgerson...raised concern about whether the use of the techniques could expose agency officers to legal liability," according to a November 9, 2005 story in The New York Times published the same month the tapes were destroyed. "They said the report expressed skepticism about the Bush administration view that any ban on cruel, inhumane and degrading treatment under the treaty does not apply to CIA interrogations because they take place overseas on people who are not citizens of the United States."
"The officials who described the report said it discussed particular techniques used by the CIA against particular prisoners, including about three dozen terror suspects being held by the agency in secret locations around the world," The New York Times reported.
New Yorker reporter Jane Mayer wrote in her book, The Dark Side, that it is believed that the torture tapes were two years after Harman wrote her letter advising against it because Democratic members of Congress who were briefed about the tapes began asking questions about whether the interrogations were illegal
"Further rattling the CIA was a request in May 2005 from Sen. Jay Rockefeller, ranking Democrat on the Senate Intelligence Committee, to see over a hundred documents referred to in the earlier Inspector General's report on detention inside the black prison sites," Mayer wrote in her book. "Among the items Rockefeller specifically sought was a legal analysis of the CIA's interrogation videotapes.
"Rockefeller wanted to know if the intelligence agency's top lawyer believed that the waterboarding of [alleged al-Qaeda operative Abu] Zubaydah and [alleged 9/11 mastermind] Khalid Sheikh Mohammed, as captured on the secret videotapes, was entirely legal. The CIA refused to provide the requested documents to Rockefeller.
"But the Democratic senator's mention of the videotapes undoubtedly sent a shiver through the Agency, as did a second request he made for these documents to [former CIA Director Porter] Goss in September 2005."
The May 2005 request from Rockefeller that Mayer wrote about took place during the same month that Steven Bradbury, the former head of the OLC, wrote three legal opinions reinstating the torture techniques his predecessor, Jack Goldsmith, had withdrawn.
Bradbury’s memos, released Thursday, include several footnotes to Helgerson’s report one of which states that the CIA used waterboarding "with far greater frequency than initially indicated" and used "large volumes of water" as opposed to the smaller amount the CIA said it intended to use. In fact, Bradbury's memos, while authorizing brutal techniques, also disputes the conclusions of Helgerson's still classified report that the interrogation techniques violated the Convention Against Torture.
Mayer further reported that the "2004 Inspector General's report, known as a 'special review,' was tens of thousands of pages long and as thick as two Manhattan phone books. It contained information, according to one source, that was simply 'sickening.'" The behavior it described, another knowledgeable source said, raised concerns not just about the detainees but also about the Americans who had inflicted the abuse, one of whom seemed to have become frighteningly dehumanized. The source said, "You couldn't read the documents without wondering, 'Why didn't someone say, "Stop!'""
Mayer wrote that Cheney stopped Helgerson from fully completing his investigation. That proves, Mayer contends, that as early as 2004 "the Vice President's office was fully aware that there were allegations of serious wrongdoing in The [interrogation] Program."
"Helgerson was summoned repeatedly to meet privately with Vice President Cheney" before his investigation was "stopped in its tracks." Mayer said that Cheney's interaction with Helgerson was "highly unusual."
As a result, McCarthy "worried that neither Helgerson nor the [CIA’s] Congressional overseers would fully examine what happened or why," according to the Post report.
McCarthy told a friend, according to the Post’s account: "She had the impression that this stuff has been pretty well buried. In McCarthy's view and that of many colleagues, friends say, torture was not only wrong but also misguided, because it rarely produced useful results."
In April 2006, 10 days before she was due to retire, McCarthy was fired from the CIA for allegedly leaking classified information to the media, a CIA spokeswoman told reporters at the time.
The CIA said McCarthy had spoken with numerous journalists, including The Washington Post's Dana Priest, who in November 2005 exposed the CIA's secret prison sites, where in 2002 the CIA videotaped its agents interrogating a so-called high-level detainee, Abu Zubaydah.
Following news reports of her dismissal from the CIA, McCarthy, through her attorney Ty Cobb, vehemently denied leaking classified information to the media. McCarthy, who is now in private practice as an attorney, did not return calls for comment.
The CIA said she failed a polygraph test after the agency launched an internal investigation in late 2005. The agency said the investigation was an attempt to find out who provided The Washington Post and The New York Times with information about its covert activities, including domestic surveillance, and it promptly fired her.
The Washington Post reported, "McCarthy was not an ideologue, her friends say, but at some point fell into a camp of CIA officers who felt that the Bush administration's venture into Iraq had dangerously diverted US counterterrorism policy. After seeing - in e-mails, cable traffic, interview transcripts and field reports - some of the secret fruits of the Iraq intervention, McCarthy became disenchanted, three of her friends say."
In October 2007, Hayden ordered an investigation into Helgerson’s office, focusing on internal complaints that the inspector general was on "a crusade against those who have participated in controversial detention programs."