Mr President, Torture Still Matters: Obama Puts Away The Abuse Photographs

Related Post: Video - Obama Decides Not to Release Photographs of Detainee Abuse
Related Post: Bush Official Zelikow Condemns Torture Programmes
Related Post: FBI Agent Ali Soufan Testifies on Torture

This may be one of the most difficult articles I have ever written. For when I heard last night that President Obama had decided to withdraw White House consent for the release of photographs of the abuse of detainees, my reaction was dismay and, yes, revulsion. Having declared in his Inaugural Speech that the US would never again separate security from values, having signed an Executive Order "banning" torture, having promised to close the Guantanamo Bay detention facility, here was Obama --- faced with the recognition of the past --- refusing to allow that acknowledgement.

And he was doing so, ironically, horribly, with the same rationale that the Bush Administration used for eight years whenever it did not want the political inconvenience of knowledge, let alone debate, of its actions: because "national security" demanded that we did not hear or see.

But first, to keep this post on an analytic rather than emotional level and to provide essential context, this is not a case of the White House volunteering the photographs and then retracting. The release of the pictures has been ordered by a United States District Court hearing a case brought by the American Civil Liberties Union.

So there is an Alice-in-Wonderland quality about Obama's opening words, "These photos are associated with closed investigations of alleged abuse of detainees". The President invokes the legal process to say that his Administration has to defy...the legal process.

(What's more, Obama's assertion is either a lie or a misstatement. Later, he indicated that the photographs related to an investigation, started "long before" he took office, which has always been completed by the Pentagon with "appropriate actions taken". So there is no "ongoing" legal investigation within the military.

Obama did refer to the "chilling effect" that these photographs might have on future investigations of detainee abuse. Even if such investigations are being contemplated, and there is no indication that this is case, this is a red herring. The photographs in question pertain to past enquiries and would have no standing in any prosecution of unrelated incidents.)

The second Obama rationalisation was that "these photos are not particularly sensational. especially when compared to the painful images we remember from Abu Ghraib". If this was an issue of whether the release of the photos is to satisfy voyeurs of torture, this might be relevant --- nothing to see here, folks, move along.

But that is not the issue. Abuse is abuse, irrespective of its "sensational" appearance (indeed abuse such as extended sleep deprivation is quite banal). A person does not have to be hooded and standing on a box in a crucifix position for the act to qualify as torture.

But Obama was saving his headline rationale for last: releasing the photographs would "inflame anti-American opinion and put our troops in danger". No need for subtle readings here: if you make me accept the court decision, our boys will be killed.

I'll give the President the benefit of the doubt, as Juan Cole does, that he has been persuaded of this by the US military and that this isn't an emotional fig leaf. But let's be clear: any insurgent or "extremist" who wants to shoot at or blow up American troops already has more than enough pretext from the last eight years: he/she can invoke what is already known or suspected about the torture and abuse in Iraq, Afghanistan, Guantanamo Bay, and secret CIA "black sites" around the world.

So instead you have to presume that Obama believes that others who are not currently fighting US forces will be prompted to do so by these photographs. Yet, if the pictures in question are not "sensational", if they do not match up to the horrors of Abu Ghraib, why would they provoke such a decision?

That logic leads to one of two conclusions: either the photographs are innocuous, and Obama is blowing smoke about "anti-American" reaction, or they are so horrific that they will provoke previously non-violent individuals to a murderous response. (For the sake of humanity, I hope it is the former.)

To be blunt, if not yet emotional, Obama's reasons are flimsy and at times illogical. So, since the President is normally quite intelligent and logical, the statement is more of a cover-up than the actual reason behind his decision.

So what did happen? Obama gave in to pressure.

In part, the pressure came from the public bubble of Washington politics. The Dick Cheney roadshow may be a distortion, even a fabrication, of what actually happened in the Bush years, but his banging away --- assisted by an array of broadcasters and newspapers --- at the risk to "national security" of the torture investigations finally put a dent in the White House. It is no coincidence that, 24 hours before Obama's statement, the former Vice President's first attack in an interview with Fox was on the release of the photos.

That, however, is only one pressure --- and probably a less important pressure --- that buckled Obama.

The ultimate "winners" in this sordid battle are US military commanders, supported by top officials at the Central Intelligence Agency. CIA Director Leon Panetta had already let it be known that he objected to any more disclosure of photographs, and Secretary of Defense Robert Gates fired his own volley on Wednesday. While generals kept their mutterings private, the gist of their opposition came out in suitably-placed media pieces.

While those commanders did put out the word that their troops would be endangered by the publicity over the photos, they had other considerations. The US military is still detaining insurgents in Iraq and Afghanistan. The CIA and military are still working with allied countries, such as Pakistan, who have their own methods of interrogation.

Public exposure of what occurred in the past could conceivably limit, apart from Obama's necessary reference at the end of his statement that "the abuse of detainees...will not be tolerated", what measures could be taken in future. Inquiry and investigation raises that the prospect that military and intelligence officials are, in theory at least, legally accountable.

In this continuing War on Terror, that's still not an acceptable risk. Instead, the story has to be maintained that torture was only, in Obama's words, "carried out in the past by a small number of individuals". The "chain of command", both political and military, has to be put beyond scrutiny.

This is not to say, of course, that the "enhanced interrogation" goes on, at least not in the form sanctioned by the Bush Administration from 2002 to 2005. It is to say that the risk of a system of oversight, prompted by a full recognition of what occurred in those years, must not be taken.

Video and Transcript: Bush Official Zelikow Condemns Torture Programmes

Related Post: Revealed - Zelikow Memorandum Says Torture is not OK (Unless It's Effective)
Related Post: FBI Agent Ali Soufan Testifies on Torture

Ironically, as President Obama was trying to tuck away any more photographs revealing the US Government's torture of detainees, former Bush Administration official Philip Zelikow was dissecting the legal and political cover for "enhanced interrogations" in testimony to a Senate committee. He reiterated that the techniques was approved at the highest levels of the Bush White House, including by his immediate boss, Condoleezza Rice, and that his memorandum objecting to the torture  (still classified by the US Government) was blocked by other Bush officials. And he offered this pertinent point: if the torture methods were considered legal in their application against "foreign" detainees, then they would also be legal in application against US citizens.

C-SPAN has decided to charge $60 for the videos of the hearings before the Senate committee, which also included testimony by Ali Soufan (posted in a separate entry), the FBI agent who questioned 9-11 planner Khalid Sheikh Mohammed. So we offer two videos --- a summary of the Soufan and Zelikow testimonies and Zelikow's interview with Rachel Maddow --- and the transcript of Zelkow's statement:

VIDEO (Part 1 of 2)

[youtube]http://www.youtube.com/watch?v=LU2BlALKZjM[/youtube]



VIDEO (Part 2 of 2)

[youtube]http://www.youtube.com/watch?v=ANOIHvQ5RNE[/youtube]

ZELIKOW: Mr. Chairman, Senator Sessions, thank you for giving me the opportunity to appear before you today. The declassification of Justice Department legal opinions on the legality of an interrogation program operated by the CIA has reopened an important public debate. The debate is on how the United States should get intelligence from captives taken in the global armed conflict against the violent Islamist extremist organization, al Qaeda, its allies, and its affiliates, as these organizations wage war against our country, and our people.

The Committee has my c.v. so I won’t detail my experience or scholarship. I will concentrate in this statement on my involvement in debates on the treatment of enemy captives in order to discuss the effectiveness of such methods and the legal reasoning employed to judge this and future intelligence programs.

At the outset, I will address a few frequently asked questions:

-- I have no view on whether former officials should be prosecuted. We have institutions to make those judgments. The factual and legal story is complicated, more complicated than is generally recognized. We should let our institutions do their job.

-- There should be a thorough inquiry, yielding a public report, to: comprehend how the United States came to operate such an unprecedented program so that we can learn from that; and evaluate whether the more constrained intelligence program we have been operating against al Qaeda in Iraq for at least four and a half years and against al Qaeda worldwide for at least three and a half years is adequate to protect the country. I think it is. But important people have challenged that view. Since the issue is so important, our current approach should be validated, or it should be changed. -- I have no view on whether Justice Department lawyers acted unethically or improperly. I believed at least some of their legal opinions on this subject were unsound, even unreasonable. But I don’t know how they did their work. Others should judge.

In 2003, while serving as executive director of the 9/11 Commission, some of my staff colleagues and I were concerned because the CIA was unwilling to disclose information about the conduct of the interrogations of key detainees and would not allow access to the detainees or the interrogators.1 The Commission’s concerns deepened as press reports in 2004 indicated that detainees might have been abused. Therefore, in its July 2004 report, the Commission formally recommended that the United States “engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists” drawing “upon Article 3 of the Geneva Conventions on the law of armed conflict,” an article “specifically designed for those cases in which the usual laws of war did not apply.”

This article, common to all four of the Geneva Conventions on armed conflict, was meant to provide a ‘floor’ to handle situations where usual POW status does not apply. It prohibits “cruel treatment” under any circumstances and bans “outrages upon personal dignity, in particular humiliating and degrading treatment.” In its recommendation, the 9/11 Commission noted that these “minimum standards are generally accepted throughout the world as customary international law.”

Although the Bush administration accepted most of the Commission’s recommendations, this was one of the few it did not accept. That refusal plainly signaled that the administration was reserving the right to inflict treatment that might violate the so-called “CID” standard. “CID” stands for “cruel, inhuman, or degrading” – a standard expressed, in slightly varying terms, in Common Article 3 of the Geneva Conventions that I just mentioned, in the Convention Against Torture, another signed and ratified treaty obligation, and is a standard also found in a Protocol to the Geneva Conventions that had been accepted by most countries and by the United States during the Reagan administration. The administration’s initial rejection of the 9/11 Commission recommendation on this point was therefore both revealing and troubling.

As 2004 turned to 2005, the controversy about the treatment of captives intensified. There were the revelations of detainee abuse in military facilities in Iraq, and reports of alleged murders. There were reports of past abuses at the Guantanamo facility. There were growing rumors and reports about other sites run by the CIA. I later learned that, in 2004, the CIA Inspector General, John Helgerson, had prepared a secret report that was plainly skeptical and worried about the Agency’s treatment of captives. I was acquainted with Helgerson and respected his judgment; I also later talked to CIA officials who worked on this study. An important critique, the IG report was also another reminder about the outstanding professionalism that can always be found in the Agency’s ranks.

In 2005, I became Counselor of the Department of State. This should not be confused with the duties of the State Department’s Legal Adviser. The “Counselor” is an old office at State, a place where the Secretary puts someone who serves as a kind of deputy on miscellaneous issues. Among my duties, I was to be the subcabinet “deputy” for the Department on issues of intelligence policy or counterterrorism.

By June 2005, President Bush wanted to reconsider the current approach. He asked his advisers to develop real options for the future of the Guantanamo facility, for the eventual disposition of detainees held by CIA, and to look at the standards governing the treatment of enemy captives.

Secretary of State Condoleezza Rice was in favor of change. Also supporting change was her Legal Adviser, John Bellinger, who had held the same job for her on the NSC staff. Bellinger was already deeply concerned about detainee policies and carried scars from earlier bureaucratic battles on the topic.

Subcabinet deputies began meeting regularly in highly sensitive meetings to consider these issues. I represented the Department at these meetings, along with Mr. Bellinger. I was thus ‘read in’ to the details of this particular CIA program for the first time.

Why was such a program adopted? I do not yet adequately understand how and why this happened. But four points stand out:

First, the atmosphere after 9/11. The country had suffered the most devastating single attack in its history. Attitudes toward those behind this mass murder were understandably merciless. The feeling of being at war was real, at least in the White House. Almost every morning, President Bush himself received nerve-jangling briefings just on the latest threats. Almost every afternoon, usually at 5 p.m., George Tenet would review the latest engagements as a de facto Combatant Commander in a global war. Some of the threat reports were apocalyptic, some scares have never become public. I saw many such reports when serving on the President’s Foreign Intelligence Advisory Board.

One result was that the tough, gritty world of ‘the field’ worked its way into the consciousness of the nation’s leaders to a degree rarely seen before, or since. A large cultural divide shadowed these judgments, a divide between the world of secretive, bearded operators in the field coming from their 3 a.m. meetings at safe houses, and the world of Washington policymakers in their wood-paneled suites. As the policymakers sense this divide, they often and naturally become more deferential – especially in a time of seemingly endless alarms. What policymakers can sometimes miss, though, is that the world of the field has many countries and cultures of its own. Seasoned operators often disagree about what the government should do, and did in this case, but policymakers were rarely aware of these arguments.

Second, the CIA – an agency that had no significant institutional capability to question enemy captives – improvised an unprecedented, elaborate, systematic program of medically monitored physical torment to break prisoners and make them talk. This program was apparently based on the SERE program familiar to civilian and military intelligence officials from their training. The program was reportedly reverse-engineered and then sold to policymakers as being no more than “what we do to our own trainees.” Much about this policy development process is still unclear, though press reports have already discussed some of the fallacies and omissions in the reverse-engineering approach.

There have also been conflicting accounts about the role of “supply” and “demand”: CIA policy entrepreneurs and officials in the White House or in the Office of the Vice President who were pushing for better intelligence. Nor is it clear just how the program evolved. It would be important to grasp how the program was understood and sold at each stage in this evolution. But the program would not have come into being unless an executive department or agency of the government was willing to develop it and defend it.

Third, the leaders of the CIA evidently believed, and told the government’s leaders, that their program would be uniquely effective in getting information from high-value captives. “Uniquely” is the key word. After all, other kinds of interrogation programs were well known to experts in law enforcement and the U.S. armed forces. The Director of the CIA, the de facto combatant commander in an ongoing fight, apparently emphasized that there were no good alternatives to adoption of this proposal.

Fourth, Attorney General John Ashcroft and his Department of Justice, along with the White House Counsel, Alberto Gonzales, assured the government’s leaders that the proposed program was lawful. Those assurances were renewed by Ashcroft’s successor, Mr. Gonzales, and by Gonzales’ successor as White House Counsel, Harriet Miers.

I will discuss the legal issues in more detail in a moment. For now, I wish to return to the issue of unique “effectiveness” and the supposed absence of alternatives.

There is quite a bit of empirical and historical information available about interrogation experience in this country, in its past wars, and in the experiences of other democracies facing terrifying threats. I have done some work on the British, French, and Israeli experiences. These experiences and others are highly instructive. They show the damage that these programs can do to the counterterror effort, the process of trial and error as alternatives emerged, and the proven effectiveness of some of these alternatives. America has had extensive experience with interrogation of high-value detainees, especially in World War II when special facilities were created for this purpose. The national policy then was to treat the detainees humanely, even though thousands of lives were potentially at stake in the midst of a brutal, total war. It is not clear how much, if any, of this knowledge was canvassed and analyzed when the critical arguments over adoption of this unprecedented program were occurring in 2002 and 2003.

By the time I began engaging in these arguments, in the spring and summer of 2005, another important source of data had emerged. This was the American intelligence and interrogation effort against al Qaeda in Iraq. This was an interagency effort, including CIA and FBI experts, organized by the military’s Joint Special Operations Command. By 2005, if not earlier, this program was complying with basic international standards in its interrogation of captives. The program was high-tempo and time-urgent. The officers running the interrogation program considered it effective and, at least by mid-2005, the government’s leaders were aware of their positive assessment.

Nonetheless, the intelligence community’s position in 2005, and later, was that a substantial program of intense physical coercion was uniquely necessary to protect the nation. The arguments that have appeared recently in the press are the same arguments, even using some of the same examples, used to defend the program against its internal critics four years ago.

Examples of success cite plots thwarted or terrorists captured. Some of these examples may not be accurate. Others may be exaggerated, or they may mask murky, internal arguments among operatives and analysts about whose source proved out, or which lead was key. Rival claims of credit that often accompany successful cases. But getting into a debate about whether the CIA program produced useful intelligence misses the point.

The point is not whether the CIA program produced useful intelligence. Of course it did. Quite a lot. The CIA had exclusive custody of a number of the most important al Qaeda captives in the world, for years. Any good interrogation effort would produce an important flow of information from these captives.

Complicating the story, the CIA did not just rely on physical coercion. A long-term interrogation program was also being employed, mustering a number of experts using growing skill in patiently mining for more information and assimilating it. Indeed, one of the tragedies of this program is that the association with physical coercion detracts attention away from some of the very high quality work the CIA did do for the country, quality work that has continued in recent years even after this program was substantially dismantled.

So the issue is not whether the CIA program of extreme physical coercion produced useful intelligence; it is about its net value when compared to the alternatives. And, even though the program may have some value against some prisoners, it has serious drawbacks just in the intelligence calculus, such as:

-- constraints in getting the optimal team of interrogators, since law enforcement and military experts could not take part;

-- whether the program actually produces much of the time- sensitive current intelligence that is one of its unique justifications;

-- loss of intelligence from allies who fear becoming complicit in a program they abhor and a whole set of fresh problems with coalition cooperation on intelligence operations;

-- poorer reliability of information obtained through torment;

-- possible loss of opportunities to turn some captives into more effective and even cooperative informants; and

-- problems in devising an end-game for the eventual trial or long- term disposition of the captives.

This skepticism about effectiveness links to wider concerns about how the United States should treat captured terrorists or terrorist suspects. By 2005, the raging controversy over “Abu Ghraib” or “Guantanamo” or “torture” was hurting the United States position in the world more than any other problem in our foreign policy.

As Secretary of State, Dr. Rice placed a high priority on changing the national approach to the treatment of detainees. Therefore, once the President indicated his readiness to hear alternatives, we first attempted to develop a ‘big bang’ approach, a presidential initiative that might take on the whole cluster of issues in a single announcement.

To show what such an initiative might look like and how it could be presented, and with help from Mr. Bellinger, I worked with the deputy secretary of defense, Gordon England, on a joint paper, a notional draft of the building blocks of such an initiative. Deputy Secretary England was aided by DOD’s Deputy Assistant Secretary for detainee affairs, Matt Waxman, and other staff. Our (unclassified) joint paper outlining the elements of a presidential initiative was distributed in June 2005.

However the Secretary of Defense, Donald Rumsfeld, indicated that this paper did not represent his Department’s views. He designated a different official as his deputy for these issues. The NSC staff then felt it was more appropriate for the interagency process to address the specific issues incrementally, rather than take up discussion of this broad paper.

At State we then focused much of our effort on recommending a different legal framework for evaluating the treatment of enemy captives. We felt it was very important to focus on the “CID” – cruel, inhuman, and degrading -- standard.

The administration had always conceded the applicability of the federal anti-torture statute and had repeatedly held that the CIA program did not violate it. The Justice Department’s view was authoritative for the executive branch and was immovable. The anti-torture language, as interpreted by Justice, also turned on medical assessments by CIA doctors, assessments we could not challenge. Taking these facts into account, plus the fact that “CID” was actually a stronger standard codified in three relevant treaties, we concentrated our advocacy on adoption of the “CID” guideline.

The “CID” standard was critical for two other reasons.

-- It was the standard that had been proposed by Senator John McCain and his allies, including Senator Lindsey Graham, in the “McCain Amendment.”

-- The “CID” standard, as codified in Article 3 of the Geneva Conventions, is also the relevant standard in the federal war crimes law (18 U.S.C. section 2441) which then stated (it was later amended) that any conduct constituting a violation of Article 3 was a war crime, a felony punishable by up to life imprisonment.

The administration position on all these “CID” arguments had been this: We do not have to measure our conduct against this standard because none of these treaties apply. If the standard did apply, the CIA program did not violate it. The outer defenses, a series of technical, jurisdictional arguments, had received the most attention. Samples can be seen in the OLC opinion of May 30, 2005.

Also, OLC’s view was that Geneva Common Article 3 did not apply because it was meant for civil conflict, not an international war (Article 3 was written that way because its drafters thought international wars would be covered by fuller Geneva protections; they thought civil war was the loophole they were closing with the minimum standard of Article 3.) And, although the federal war crimes statute’s reference to “conduct constituting” could be construed as stating a substantive compliance standard, the OLC did not share that view.

In 2005 State worked to persuade the rest of the government to join in developing an option that would abandon these technical defenses and accept the “CID” standard. An illustration of these arguments, as made at the time, is in an unclassified paper prepared with Mr. Bellinger’s help and circulated in July 2005.

Both deputies and principals battled over these topics on into the fall of 2005, including the issue of how the administration should deal with Senator McCain’s proposed amendment. New press reports, by Dana Priest in the Washington Post, fueled further controversy – especially in Europe.

By the end of 2005 these debates in both the executive and legislative branches did lead to real change. On December 5, as Secretary Rice left on a European trip, she formally announced on behalf of the President that the “CID” standard would govern U.S. conduct by any agency, anywhere in the world.4 On December 30 the McCain amendment (to a defense appropriations bill) was signed into law as well, as the Detainee Treatment Act of 2005.

Thus by early 2006 there was no way for the administration to avoid the need to reevaluate the CIA program against a “CID” standard. The work of the NSC deputies intensified, working to develop a comprehensive set of proposals for presidential decision about the future of the CIA program and the future of Guantanamo.

The OLC had guarded against the contingency of a substantive “CID” review in its May 30, 2005 opinion. OLC had held that, even if the standard did apply, the full CIA program -- including waterboarding – complied with it. This OLC view also meant, in effect, that the McCain amendment was a nullity; it would not prohibit the very program and procedures Senator McCain and his supporters thought they had targeted.

So, with the battle to apply the standard having been won, State then had to fight another battle over how to define its meaning. That meant coming to grips with OLC’s substantive analysis.

OLC contended that these subjective terms – like “cruel” or “humane” -- should be interpreted in light of the well developed and analogous restrictions found in American constitutional law, specifically through the interaction of the 5th, 8th, and 14th amendments to the U.S. Constitution. As OLC observed in its May 30 opinion, the Congress had conditioned its ratification of one of the “CID”-type standards, the one found in the Convention Against Torture, on its being interpreted in just this way.

Therefore, to challenge OLC’s interpretation, it was necessary to challenge the Justice Department’s interpretation of U.S. constitutional law. This was not easy, since OLC is the authoritative interpreter of such law for the executive branch of the government. Many years earlier I had worked in this area of American constitutional law. The OLC interpretation of U.S. constitutional law in this area seemed strained and indefensible. It relied on a “shocks the conscience” standard in judging interrogations but did not seem to present a fair reading of the caselaw under that standard. The OLC analysis also neglected another important line of caselaw, on conditions of confinement.

While OLC’s interpretations of other areas of law were well known to be controversial, I did not believe my colleagues had heard arguments challenging the way OLC had analyzed these constitutional rights. With the issue of “CID” definition now raised so squarely, and so important to the options being developed for the President, it seemed necessary to put that legal challenge in front of my government colleagues, citing relevant caselaw.

Further, the OLC position had implications beyond the interpretation of international treaties. If the CIA program passed muster under an American constitutional compliance analysis, then – at least in principle -- a program of this kind would pass American constitutional muster even if employed anywhere in the United States, on American citizens. Reflect on that for a moment.

I distributed my memo analyzing these legal issues to other deputies at one of our meetings, probably in February 2006. I later heard the memo was not considered appropriate for further discussion and that copies of my memo should be collected and destroyed. That particular request, passed along informally, did not seem proper and I ignored it. This particular legal memo has evidently been located in State’s files. It is currently being reviewed for possible declassification.

The broader arguments over the future of the CIA program went on for months, even though the old program had effectively been discontinued. There were continuing issues over whether or how to maintain a different kind of CIA program. Both principals and deputies examined proposals to bring the high-value detainees out of the ‘black sites’ and to Guantanamo where they could be brought to justice (and would give accounts of their treatment to lawyers and the Red Cross); seek legislation that would close Guantanamo; accept fully the application of Common Article 3; and find some way of maintaining a standby CIA program that would comply with legal standards. A new OLC opinion was also being developed in the spring of 2006 to deal with the different circumstances, including the McCain amendment. We at State were concerned about this development, unless OLC had reconsidered how to interpret the “CID” standard.

We nonetheless believed these issues were moving in an encouraging direction, though the administration certainly remained divided. Options for action on all the major issues had been developed for possible presidential decision and had already been discussed repeatedly by the principal officers of the government.

Then, on June 29, the U.S. Supreme Court decided Hamdan v. Rumsfeld. That decision held that Geneva Common Article 3 applied to the U.S. government’s treatment of these captives as a matter of law. Immediately, the potential exposure to criminal liability in the federal war crimes act became real.

Internal debate continued into July, culminating in several decisions by President Bush. Accepting positions that Secretary Rice had urged again and again, the President set the goal of closing the Guantanamo facility, decided to bring all the high-value detainees out of the ‘black sites’ and move them toward trial, sought legislation from the Congress that would address these developments (which became the Military Commissions Act) and defended the need for some continuing CIA program that would comply with relevant law. President Bush announced these decisions on September 6.

I left the government at the end of 2006 and returned to the University of Virginia. Both Secretary Rice and Mr. Bellinger remained deeply involved in these issues for the following two years, working for constructive change. Mr. Bellinger, in particular, also deserves credit for exhausting, patient diplomacy to carry forward the idea of working with our key allies to build common, coalition approaches on these tough problems. He has conducted several international conferences that have successfully advanced this effort.

The U.S. government adopted an unprecedented program of coolly calculated dehumanizing abuse and physical torment to extract information. This was a mistake, perhaps a disastrous one. It was a collective failure, in which a number of officials and members of Congress (and staffers) of both parties played a part, endorsing a CIA program of physical coercion even after the McCain amendment was passed and after the Hamdan decision . Precisely because this was a collective failure it is all the more important to comprehend it, and learn from it.

For several years our government has been fighting terrorism without using these extreme methods. We face some serious obstacles in defeating al Qaeda and its allies. We could be hit again, hit hard. But our decision to respect basic international standards does not appear to be a big hindrance in the fight. In fact, if the U.S. regains some higher ground in the wider struggle of ideas, our prospects in a long conflict will be better.

Others may disagree. They may believe that recent history, even since 2005, shows that America needs an elaborate program of indefinite secret detention and physical coercion in order to protect the nation. The government, and the country, needs to decide whether they are right. If they are right, our laws must change and our country must change. I think they are wrong.

Transcript: FBI Agent Ali Soufan Testifies on Torture

Related Post: Bush Official Zelikow Condemns Illegal Programmes

Testifying behind a screen, former FBI agent Ali Soufan told a Senate hearing yesterday about the damage caused by the Bush Administration's "enhanced interrogations". Soufan was one of the first agents to question Al Qa'eda operative Abu Zubaydah, and by "connecting" with the detainee, he learned the identity of 9/11 planner Khalid Sheikh Mohammed. Shortly afterwards, CIA operatives took over the question, applying techniques including waterboarding. Abu Zubaydah, mentally and physically broken, offered little from that point.

Soufan's testimony can be read next to his opinion piece, published last month, in The New York Times.

Mr. Chairman, Committee members, thank you for inviting me to appear before you today. I know that each one of you cares deeply about our nation's security. It was always a comfort to me during the most dangerous of situations that I faced, from going undercover as an al Qaeda operative, to unraveling terrorist cells, to tracking down the killers of the 17 U.S. sailors murdered in the USS Cole bombing, that those of us on the frontline had your support and the backing of the American people. So I thank you.

The issue that I am here to discuss today – interrogation methods used to question terrorists – is not, and should not be, a partisan matter. We all share a commitment to using the best interrogation method possible that serves our national security interests and fits squarely within the framework of our nation's principles.

From my experience – and I speak as someone who has personally interrogated many terrorists and elicited important actionable intelligence– I strongly believe that it is a mistake to use what has become known as the "enhanced interrogation techniques," a position shared by many professional operatives, including the CIA officers who were present at the initial phases of the Abu Zubaydah interrogation.

These techniques, from an operational perspective, are ineffective, slow and unreliable, and as a result harmful to our efforts to defeat al Qaeda. (This is aside from the important additional considerations that they are un-American and harmful to our reputation and cause.)

My interest in speaking about this issue is not to advocate the prosecution of anyone. People were given misinformation, half-truths, and false claims of successes; and reluctant intelligence officers were given instructions and assurances from higher authorities. Examining a past we cannot change is only worthwhile when it helps guide us towards claiming a better future that is yet within our reach.

And my focus is on the future. I wish to do my part to ensure that we never again use these harmful, slow, ineffective, and unreliable techniques instead of the tried, tested, and successful ones – the ones that are also in sync with our values and moral character. Only by doing this will we defeat the terrorists as effectively and quickly as possible.

Most of my professional career has been spent investigating, studying, and interrogating terrorists. I have had the privilege of working alongside, and learning from, some of the most dedicated and talented men and women our nation has– individuals from the FBI, and other law enforcement, military, and intelligence agencies.

In my capacity as a FBI Agent, I investigated and supervised highly sensitive and complex international terrorism cases, including the East Africa bombings, the USS Cole bombing, and the events surrounding the attacks of 9/11. I also coordinated both domestic and international counter-terrorism operations on the Joint Terrorist Task Force, FBI New York Office.

I personally interrogated many terrorists we have in our custody and elsewhere, and gained confessions, identified terror operatives, their funding, details of potential plots, and information on how al Qaeda operates, along with other actionable intelligence. Because of these successes, I was the government's main witness in both of the trials we have had so far in Guantanamo Bay – the trial of Salim Ahmed Hamdan, a driver and bodyguard for Osama Bin Laden, and Ali Hamza Al Bahlul, Bin Laden's propagandist. In addition I am currently helping the prosecution prepare for upcoming trials of other detainees held in Guantanamo Bay.

There are many examples of successful interrogations of terrorists that have taken place before and after 9/11. Many of them are classified, but one that is already public and mirrors the other cases, is the interrogation of al Qaeda terrorist Nasser Ahmad Nasser al-Bahri, known as Abu Jandal. In the immediate aftermath of 9/11, together with my partner Special Agent Robert McFadden, a first-class intelligence operative from the Naval Criminal Investigative Service (NCIS), (which, from my experience, is one of the classiest agencies I encountered in the intelligence community), I interrogated Abu Jandal.
Through our interrogation, which was done completely by the book (including advising him of his rights), we obtained a treasure trove of highly significant actionable intelligence. For example, Abu Jandal gave us extensive information on Osama Bin Laden's terror network, structure, leadership, membership, security details, facilities, family, communication methods, travels, training, ammunitions, and weaponry, including a breakdown of what machine guns, rifles, rocket launchers, and anti-tank missiles they used. He also provided explicit details of the 9/11plot operatives, and identified many terrorists who we later successfully apprehended.

The information was important for the preparation of the war in Afghanistan in 2001. It also provided an important background to the 9/11 Commission report; it provided a foundation for the trials so far held in Guantanamo Bay; and it also has been invaluable in helping to capture and identify top al Qaeda operatives and thus disrupt plots.
The approach used in these successful interrogations can be called the Informed Interrogation Approach. Until the introduction of the "enhanced" technique, it was the sole approach used by our military, intelligence, and law enforcement community.

It is an approach rooted in experiences and lessons learned during World War II and from our Counter-insurgency experience in Vietnam – experiences and lessons that generated the Army Field Manual. This was then refined over the decades to include how to interrogate terrorism suspects specifically, as experience was gained from interrogations following the first World Trade Center bombing, the East Africa Embassy bombings, and the USS Cole bombing. To sum up, it is an approach derived from the cumulative experiences, wisdom, and successes of the most effective operational people our country has produced.

Before I joined the Bureau, for example, traditional investigative strategies along with intelligence derived from human sources successfully thwarted the 1993 New York City Landmark Bomb Plot (TERRSTOP), a plot by the Blind Sheikh Omar Abdel-Rahman, to attack the UN Headquarters, the FBI's New York office, and tunnels and bridges across New York City, -- as a follow-up to the 1993 World Trade Center bombings. That remains to this day the largest thwarted attack on our homeland. I had the privilege of working with, and learning from, those who conducted this successful operation.

The Informed Interrogation Approach is based on leveraging our knowledge of the detainee's culture and mindset, together with using information we already know about him.

The interrogator knows that there are three primary points of influence on the detainee:

First, there is the fear that the detainee feels as a result of his capture and isolation from his support base. People crave human contact, and this is especially true in some cultures more than others. The interrogator turns this knowledge into an advantage by becoming the one person the detainee can talk to and who listens to what he has to say, and uses this to encourage the detainee to open up.

In addition, acting in a non-threatening way isn't how the detainee is trained to expect a U.S. interrogator to act. This adds to the detainee's confusion and makes him more likely to cooperate.

Second, and connected, there is the need the detainee feels to sustain a position of respect and value to interrogator. As the interrogator is the one person speaking to and listening to the detainee, a relationship is built – and the detainee doesn't want to jeopardize it. The interrogator capitalizes on this and compels the detainee to give up more information.

And third, there is the impression the detainee has of the evidence against him. The interrogator has to do his or her homework and become an expert in every detail known to the intelligence community about the detainee. The interrogator then uses that knowledge to impress upon the detainee that everything about him is known and that any lie will be easily caught.

For example, in my first interrogation of the terrorist Abu Zubaydah, who had strong links to al Qaeda's leaders and who knew the details of the 9/11 plot before it happened, I asked him his name. He replied with his alias. I then asked him, "how about if I call you Hani?" That was the name his mother nicknamed him as a child. He looked at me in shock, said "ok," and we started talking.

The Army Field Manual is not about being nice or soft. It is a knowledge-based approach. It is about outwitting the detainee by using a combination of interpersonal, cognitive, and emotional strategies to get the information needed. If done correctly it's an approach that works quickly and effectively because it outwits the detainee using a method that he is not trained, or able, to resist.

This Informed Interrogation Approach is in sharp contrast with the harsh interrogation approach introduced by outside contractors and forced upon CIA officials to use.

The harsh technique method doesn't use the knowledge we have of the detainee's history, mindset, vulnerabilities, or culture, and instead tries to subjugate the detainee into submission through humiliation and cruelty. The approach applies a force continuum, each time using harsher and harsher techniques until the detainee submits.

The idea behind the technique is to force the detainee to see the interrogator as the master who controls his pain. It is an exercise in trying to gain compliance rather than eliciting cooperation. A theoretical application of this technique is a situation where the detainee is stripped naked and told: "Tell us what you know."

If the detainee doesn't immediately respond by giving information, for example he asks: "what do you want to know?" the interviewer will reply: "you know," and walk out of the interrogation room. Then the next step on the force continuum is introduced, for example sleep deprivation, and the process will continue until the detainee's will is broken and he automatically gives up all information he is presumed to know.

There are many problems with this technique.

A major problem is that it is ineffective. Al Qaeda terrorists are trained to resist torture. As shocking as these techniques are to us, the al Qaeda training prepares them for much worse – the torture they would expect to receive if caught by dictatorships for example.

This is why, as we see from the recently released Department of Justice memos on interrogation, the contractors had to keep getting authorization to use harsher and harsher methods, until they reached waterboarding and then there was nothing they could do but use that technique again and again. Abu Zubaydah had to be waterboarded 83 times and Khalid Shaikh Mohammed 183 times. In a democracy there is a glass ceiling of harsh techniques the interrogator cannot breach, and a detainee can eventually call the interrogator's bluff.

In addition the harsh techniques only serves to reinforce what the detainee has been prepared to expect if captured. This gives him a greater sense of control and predictability about his experience, and strengthens his will to resist.

A second major problem with this technique is that evidence gained from it is unreliable. There is no way to know whether the detainee is being truthful, or just speaking to either mitigate his discomfort or to deliberately provide false information. As the interrogator isn't an expert on the detainee or the subject matter, nor has he spent time going over the details of the case, the interrogator cannot easily know if the detainee is telling the truth. This unfortunately has happened and we have had problems ranging from agents chasing false leads to the disastrous case of Ibn Sheikh al-Libby who gave false information on Iraq, al Qaeda, and WMD.

A third major problem with this technique is that it is slow. It takes place over a long period of time, for example preventing the detainee from sleeping for 180 hours as the memos detail, or waterboarding 183 times in the case of KSM. When we have an alleged "ticking timebomb" scenario and need to get information quickly, we can't afford to wait that long.

A fourth problem with this technique is that ignores the end game. In our country we have due process, which requires evidence to be collected in a certain way. The CIA, because of the sensitivity of its operations, by necessity, operates secretly. These two factors mean that by putting the CIA in charge of interrogations, either secrecy is sacrificed for justice and the CIA's operations are hampered, or justice is not served. Neither is a desirable outcome.

Another disastrous consequence of the use of the harsh techniques was that it reintroduced the "Chinese Wall" between the CIA and FBI – similar to the wall that prevented us from working together to stop 9/11. In addition, the FBI and the CIA officers on the ground during the Abu Zubaydah interrogation were working together closely and effectively, until the contractors' interferences. Because we in the FBI would not be a part of the harsh techniques, the agents who knew the most about the terrorists could have no part in the investigation. An FBI colleague of mine, for example, who had tracked KSM and knew more about him than anyone in the government, was not allowed to speak to him.

Furthermore, the CIA specializes in collecting, analyzing, and interpreting intelligence. The FBI, on the other hand, has a trained investigative branch. Until that point, we were complimenting each other's expertise, until the imposition of the "enhanced methods." As a result people ended doing what they were not trained to do.

It is also important to realize that those behind this technique are outside contractors with no expertise in intelligence operations, investigations, terrorism, or al Qaeda. Nor did the contractors have any experience in the art of interview and interrogation. One of the contractors told me this at the time, and this lack of experience has also now been recently reported on by sources familiar with their backgrounds.

The case of the terrorist Abu Zubaydah is a good example of where the success of the Informed Interrogation Approach can be contrasted with the failure of the harsh technique approach. I have to restrict my remarks to what has been unclassified. (I will note that there is documented evidence supporting everything I will tell you today.)

Immediately after Abu Zubaydah was captured, a fellow FBI agent and I were flown to meet him at an undisclosed location. We were both very familiar with Abu Zubaydah and have successfully interrogated al-Qaeda terrorists. We started interrogating him, supported by CIA officials who were stationed at the location, and within the first hour of the interrogation, using the Informed Interrogation Approach, we gained important actionable intelligence.

The information was so important that, as I later learned from open sources, it went to CIA Director George Tenet who was so impressed that he initially ordered us to be congratulated. That was apparently quickly withdrawn as soon as Mr. Tenet was told that it was FBI agents, who were responsible. He then immediately ordered a CIA CTC interrogation team to leave DC and head to the location to take over from us.

During his capture Abu Zubaydah had been injured. After seeing the extent of his injuries, the CIA medical team supporting us decided they were not equipped to treat him and we had to take him to a hospital or he would die. At the hospital, we continued our questioning as much as possible, while taking into account his medical condition and the need to know all information he might have on existing threats.

We were once again very successful and elicited information regarding the role of KSM as the mastermind of the 9/11 attacks, and lots of other information that remains classified. (It is important to remember that before this we had no idea of KSM's role in 9/11 or his importance in the al Qaeda leadership structure.) All this happened before the CTC team arrived.

A few days after we started questioning Abu Zubaydah, the CTC interrogation team finally arrived from DC with a contractor who was instructing them on how they should conduct the interrogations, and we were removed. Immediately, on the instructions of the contractor, harsh techniques were introduced, starting with nudity. (The harsher techniques mentioned in the memos were not introduced or even discussed at this point.)

The new techniques did not produce results as Abu Zubaydah shut down and stopped talking. At that time nudity and low-level sleep deprivation (between 24 and 48 hours) was being used. After a few days of getting no information, and after repeated inquiries from DC asking why all of sudden no information was being transmitted (when before there had been a steady stream), we again were given control of the interrogation.

We then returned to using the Informed Interrogation Approach. Within a few hours, Abu Zubaydah again started talking and gave us important actionable intelligence.

This included the details of Jose Padilla, the so-called "dirty bomber." To remind you of how important this information was viewed at the time, the then-Attorney General, John Ashcroft, held a press conference from Moscow to discuss the news. Other important actionable intelligence was also gained that remains classified.

After a few days, the contractor attempted to once again try his untested theory and he started to re-implementing the harsh techniques. He moved this time further along the force continuum, introducing loud noise and then temperature manipulation.

Throughout this time, my fellow FBI agent and I, along with a top CIA interrogator who was working with us, protested, but we were overruled. I should also note that another colleague, an operational psychologist for the CIA, had left the location because he objected to what was being done.

Again, however, the technique wasn't working and Abu Zubaydah wasn't revealing any information, so we were once again brought back in to interrogate him. We found it harder to reengage him this time, because of how the techniques had affected him, but eventually, we succeeded, and he re-engaged again.

Once again the contractor insisted on stepping up the notches of his experiment, and this time he requested the authorization to place Abu Zubaydah in a confinement box, as the next stage in the force continuum. While everything I saw to this point were nowhere near the severity later listed in the memos, the evolution of the contractor's theory, along with what I had seen till then, struck me as "borderline torture."

As the Department of Justice IG report released last year states, I protested to my superiors in the FBI and refused to be a part of what was happening. The Director of the FBI, Robert Mueller, a man I deeply respect, agreed passing the message that "we don't do that," and I was pulled out.

As you can see from this timeline, many of the claims made in the memos about the success of the enhanced techniques are inaccurate. For example, it is untrue to claim Abu Zubaydah wasn't cooperating before August 1, 2002. The truth is that we got actionable intelligence from him in the first hour of interrogating him.

In addition, simply by putting together dates cited in the memos with claims made, falsehoods are obvious. For example, it has been claimed that waterboarding got Abu Zubaydah to give up information leading to the capture of Jose Padilla. But that doesn't add up: Waterboarding wasn't approved until 1 August 2002 (verbally it was authorized around mid July 2002), and Padilla was arrested in May 2002.

The same goes for KSM's involvement in 9/11: That was discovered in April 2002, while waterboarding was not introduced until almost three months later. It speaks volumes that the quoted instances of harsh interrogation methods being a success are false.

Nor can it be said that the harsh techniques were effective, which is why we had to be called back in repeatedly. As we know from the memos, the techniques that were apparently introduced after I left did not appear to work either, which is why the memos granted authorization for harsher techniques. That continued for several months right till waterboarding was introduced, which had to be used 83 times – an indication that Abu Zubaydah had called the interrogator's bluff knowing the glass ceiling that existed.

Authoritative CIA, FBI, and military sources have also questioned the claims made by the advocates of the techniques. For example, in one of the recently released Justice Department memos, the author, Stephen Bradbury, acknowledged a (still classified) internal CIA Inspector General report that had found it "difficult to determine conclusively whether interrogations have provided information critical to interdicting specific imminent attacks."

In summary, the Informed Interrogation Approach outlined in the Army Field Manual is the most effective, reliable, and speedy approach we have for interrogating terrorists. It is legal and has worked time and again.

It was a mistake to abandon it in favor of harsh interrogation methods that are harmful, shameful, slower, unreliable, ineffective, and play directly into the enemy's handbook. It was a mistake to abandon an approach that was working and naively replace it with an untested method. It was a mistake to abandon an approach that is based on the cumulative wisdom and successful tradition of our military, intelligence, and law enforcement community, in favor of techniques advocated by contractors with no relevant experience.

The mistake was so costly precisely because the situation was, and remains, too risky to allow someone to experiment with amateurish, Hollywood style interrogation methods- that in reality- taints sources, risks outcomes, ignores the end game, and diminishes our moral high ground in a battle that is impossible to win without first capturing the hearts and minds around the world. It was one of the worst and most harmful decisions made in our efforts against al Qaeda.

For the last seven years, it was not easy objecting to these methods when they had powerful backers. I stood up then for the same reason I'm willing to take on critics now, because I took an oath swearing to protect this great nation. I could not stand by quietly while our country's safety was endangered and our moral standing damaged.

I know you are motivated by the same considerations, and I hope you help ensure that these grave mistakes are never made again.

Thank you.

Video: Obama Decides Not to Release Photographs of Detainee Abuse

Latest Post: Mr President, Torture Still Matters - Obama Puts Away The Abuse Photographs
Related Post: Bush Official Zelikow Condemns Torture Programmes
Related Post: FBI Agent Ali Soufan Testifies on Torture

I am still in a state of shock and anger over President Obama's decision --- I am tempted to say political capitulation --- reversing the White House acceptance of a legal decision ordering the release of photographs of abuse of detainees. I am saddened at the symbolic attempt to make torture go away, jaded by the specious pretense that release would endanger American troops (to the contrary, I suspect anti-American furour will be stoked by the White House refusal), and concerned that this undoes Obama's earlier attempts to improve America's image in the world.

Best, however, to sleep on these emotions until analysis can take over. In the meantime, here is Obama's announcement of the decision:

[youtube]http://www.youtube.com/watch?v=f280coe6LMQ[/youtube]

Torture: Today's Side-Splitting but Thoughtful Cartoon

Because waterboarding is always something to laugh about...

(Ed Gamble of the Florida Times-Union)