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Demonstrator reenacts waterboarding in Washington anti-torture protest, 2007.(Photo by: REUTERS)
Did torture report give US government a free pass and dump too much on CIA?
Three months after the Senate report was released, Georgetown University Law Center Prof. David Cole emphasized a major new piece of the issue.
December 9 ushered in a new era in the US’s endless debate over whether torture can and should be used in interrogating terrorists, particularly if security officials think that torture can obtain information to prevent a “ticking bomb” or impending attack.

After five years of investigating and reviewing more than 6 million intelligence documents, and 12 years after the CIA’s enhanced interrogation techniques (EITs) program – also referred to as its torture program – began, a 500-page summary of the US Senate Intelligence Committee’s report on the program was made public, concluding that the EITs do not work.

Responding to the report, US President Barack Obama said that no more torture would occur on his watch and that he hoped the report would “leave these techniques where they belong, in the past.”

But US Senate Republican leader Mitch McConnell and Sen. Saxby Chambliss, the top Republican on the committee, said that EITs had led to taking down Osama bin Laden and capturing key terrorists.

Former US president George W.

Bush and a line of Bush administration officials have also vehemently defended the EIT program in op-eds and interviews in recent days.

But did the intense debate on whether the EITs worked or not miss a major point? Three months after the Senate report was released, Georgetown University Law Center Prof. David Cole emphasized a major new piece of the issue.

On Monday, Cole highlighted the degree to which the report blamed the CIA, despite the agency’s bending over backwards in obtaining legal and political approvals at the highest levels.

Cole implied that the Senate report decided to argue that torture did not work, and went after the CIA as its main target, possibly because the report started as a bipartisan project and no Republicans would have agreed to a hunt on the Bush administration’s top officials.

What is new? John Yoo, a former US Department of Justice lawyer, has been famous – or infamous – for some time for writing various memoranda justifying stretching international law with new interpretations that could justify the new techniques.

But Cole, referring to some less followed documents from, a website of CIA alumnae, and others provided by the CIA to defend itself, drew attention to approvals given to the new techniques by a group at a much higher pay grade.

The group included none other than vice president Dick Cheney, secretary of state Colin Powell, secretary of defense Donald Rumsfeld, national security adviser Condoleezza Rice and various non-CIA legal officials.

A February 12, 2003, internal CIA memorandum recounts the January 16, 2003, meeting in which all of those top officials present “evinced understanding of the issue. CIA’s past and ongoing use of enhanced interrogation techniques was reaffirmed and in no way drawn into question.”

More specifically, much of the new focus is on a craftily worded memorandum by president George W. Bush on February 7, 2002.

There, while saying that the Geneva Conventions, such as against torture, did not apply to al-Qaida, Bush reassured the international community that the US “armed forces” would voluntarily apply humane treatment of detainees even to al-Qaida.

The careful wording of the statement wasn’t noticed at the time outside of the government’s inner circles. Not only did it obligate the US army to humane treatment of detainees, but it freed the CIA from those obligations, since the CIA is not part of US armed forces.

The top officials and their lawyers, and former US attorney-general John Ashcroft in another meeting on July 29, 2003 (according to an internal August 5, 2003 memorandum), “forcefully” supported continued use of the new techniques by the CIA.

None of this resolves the debate over whether the techniques were effective or not, but to those against the techniques who have pointed the finger at the CIA, this new focus suggests that the CIA had been told it was kosher at the highest levels.

If that is true, it may mean that the Senate unduly dumped on the CIA, giving the real authorizers of the program, the political echelon, an undue pass.
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