Sen. Dianne Feinstein's report last week on enhanced interrogations under the George W. Bush administration suffers from fundamental flaws. The Senate Intelligence Committee took the unprecedented step of proceeding without Republicans even though previous investigations have always been bipartisan. It cherry-picked from millions of CIA documents and, unbelievably, refused to interview any witnesses.
Without bipartisanship and testimony, the report's claims cannot be trusted. CIA directors from both parties, including George Tenet (who served under Presidents Clinton and Bush) and John Brennan (who serves under President Obama), have rejected many of the report's factual findings and its central claim that the CIA systematically misled the White House and the president and covered up the abuse of terrorists.
But the Feinstein report has one positive virtue: It has moved the debate beyond legality to effectiveness. To be sure, the senator takes a stab at claiming the interrogation methods amounted to illegal torture. The CIA, she writes, “decided to initiate a program of indefinite secret detention and the use of brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values.” But the report does not analyze the federal anti-torture law, which in 2001 prohibited interrogation methods with “the specific intent” to cause “severe physical or mental pain and suffering.”
Attorneys in the Bush Justice Department, including me, reviewed whether the CIA's proposed interrogation of Abu Zubaydah, an Al Qaeda planner captured in March 2002 in Pakistan, met that law. The brief statute provided neither further definitions nor examples of prohibited methods (in 2005, Congress passed a detailed law, the Detainee Treatment Act, because the earlier law was vague). For us, as I think for most reasonable Americans, almost all the CIA's proposed interrogation methods did not constitute torture — the only one close to the line was waterboarding.
Three reasons persuaded us to approve waterboarding. First, Al Qaeda terrorists were not POWs under the Geneva Conventions, because they fought for no nation and flouted the laws of war by killing civilians and beheading prisoners (such as Daniel Pearl). Second, the U.S. armed forces had used it in training tens of thousands of officers and soldiers, without any physical injury or long-term mental harm. Finally, the United States had suffered the deaths of 3,000 civilians and billions of dollars in damage; we knew little about Al Qaeda, and intelligence indicated that more attacks were coming, perhaps using weapons of mass destruction.
Even under these extraordinary circumstances, the CIA would use harsh interrogation on only Al Qaeda leaders thought to have information about pending attacks — in the end the CIA approved the waterboarding of only three Al Qaeda leaders. If some CIA interrogators went beyond these methods, they would not have received Justice Department approval; they could have been disciplined, even prosecuted. Two sets of Justice Department prosecutors, however, investigated the same claims of abuse in the Feinstein report and ultimately brought no charges.
Feinstein implies that the CIA should have chosen standard interrogation methods, which depend on developing a relationship with the detainee. This may work for law enforcement, but not for any reasonable American president in 2001 and 2002. Building rapport with Al Qaeda leaders could take weeks, months, years — or never. Our prisons still hold convicted terrorists, such as those tied to the 1993 World Trade Center bombing, who have never cooperated with authorities.
In the end, Feinstein makes her case against the CIA on effectiveness, not law. And yet, the report cannot quarrel with the ultimate fact: Contrary to the expectations of terrorism experts inside and outside of government, the United States has succeeded in preventing a second large-scale terrorist attack for the last 13 years.
Feinstein and other Senate Democrats can only attack this record by arguing that the interrogations yielded nothing new. But a central element of the CIA's success — killing Osama bin Laden and destroying Al Qaeda's leadership — belies her claim. The U.S. found Bin Laden by tracking a courier to his location. Feinstein's staff discovered the courier's name in CIA files before interrogations began, and so claims that they added nothing to the effort. This ignores the fact that the names of hundreds, if not thousands, of Al Qaeda suspects sat in CIA files. Only the interrogation of Al Qaeda leaders singled out that individual as the courier.
The report's fatal flaws continue with the capture of Al Qaeda leaders, such as Khalid Sheikh Mohammed and Ramzi Binalshibh, the planners of the 9/11 attacks, or Indonesian terrorist Hambali, who was working on airplane strikes on the West Coast. As the responses of the CIA and the Republican minority make clear, interrogations led the U.S. to one leader and then the next in succession. The Feinstein report cannot explain how the CIA brought down Al Qaeda's leadership.
If the interrogations were effective, all that is left of the Feinstein report is an appeal to “our values.” Even if she were to admit that intelligence was gained, Feinstein clearly believes it would not justify the harm inflicted on terrorists. She appears to believe that the U.S. should never interrogate beyond standard relationship-building, no matter the threat to American lives.
But Americans are a practical people, nowhere more so than in war. In the Civil War, Gen. William T. Sherman marched through the South to destroy civilian support for the Confederacy. In World War II, U.S. bombs killed hundreds of thousands of civilians in Germany and Japan. President Truman used nuclear weapons to end that war. Obama has deployed drone strikes that have not only killed terrorists, but also hundreds of innocent civilians. Feinstein is not accusing Obama of war crimes, despite the far greater loss of life.
War forces us to confront tough decisions and trade-offs. Current polls indicate that a large majority of Americans support tough interrogation measures, including waterboarding, to get information from terrorists. They could have turned Bush out of office in 2004, after details of the interrogation program came to light. And as the 2014 midterm elections show, Americans remain worried about national security and terrorist threats, especially Islamic State.
Americans rely — where the Feinstein report and Senate Democrats will not — on the men and women of the CIA to protect the nation as foreign dangers and disorder rise around us.
John Yoo is a law professor at UC Berkeley and a visiting scholar at the American Enterprise Institute. When he served in the Justice Department from 2001 to 2003, he co-wrote memos supporting the legality of enhanced interrogation.
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