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Findings, Conclusions and Areas of Dispute Between the SSCI Report, the Minority, and the CIA: Part Five

Matt Danzer, Cody M. Poplin, Alex Ely
Friday, December 12, 2014, 9:36 PM
Here is the fifth and final installment in our running, side-by-side comparison of the twenty findings and conclusions of the Senate Select Committee on Intelligence's Study on the CIA's Detention and Interrogation Program---along  with responses by the Committee Minority and the CIA. Summaries of Study findings seventeen through twenty can be found below.

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Here is the fifth and final installment in our running, side-by-side comparison of the twenty findings and conclusions of the Senate Select Committee on Intelligence's Study on the CIA's Detention and Interrogation Program---along  with responses by the Committee Minority and the CIA. Summaries of Study findings seventeen through twenty can be found below.  By way of reminder, our goal is broadly to identify, but not to comment upon, key areas of dispute between the Study, the Minority, and the Agency.

Committee Conclusion #17: The CIA rarely reprimanded or held personnel accountable for serious and significant violations, inappropriate activities, and systemic and individual management failures.

CIA officers and managers were rarely held accountable for various abuses, the Study charges, from “the death and injury of CIA detainees” to detentions that violated relevant legal standards and use of “unauthorized interrogation techniques.” The Committee takes particular aim at CIA senior leadership for failing to hold interrogators accountable. It recounts two instances when CIA leaders overruled the inspector general’s accountability recommendations, the failure to take disciplinary action when one detainee died, and the excusing of a wrongful detention “because, ‘[t]he Director strongly believes that mistakes should be expected in a business filled with uncertainty,’ and ‘the Director believes the scale tips decisively in favor of accepting mistakes that over connect the dots against those that under connect them.’”

Minority Views as to Conclusion #17

The Minority does not specifically address this Conclusion.

CIA Comment

In a sense, the Agency does not just accept that it flunked accountability standards; indeed it says it would take the Study's "argument one step further."  For example, in summarizing the views of its Agency Review Team, the CIA specifically acknowledges that its leaders “erred in not holding anyone formally accountable” for the death of Gul Rahman, a detainee, in 2002. Although it “can appreciate the reasoning underlying the CIA’s management decision” to overturn the inspector general’s accountability recommendation to sanction “the least experienced officer involved," the report explains that CIA had an “affirmative obligation to look more deeply into the leadership decisions that helped shape the environment in which the junior officer was required to operate, to examine what could have been done better, and to determine what responsibility, if any, should be fixed at a more senior level.” (The Agency did "better," it writes, with regard to the mistakenly detained Khalid El-Masri, in that the CIA "went on to hold those who offered flawed legal advice accountable," apparently by means of an "oral admonition." Still, the Comment makes clear that "it is hard to understand how the Agency could make such a mistake, take too long to correct it," and then impose such a flimsy sanction.) The CIA ultimately will “look more broadly at management responsibility and more consistently at any systemic issues” in the future---and not merely seek to pin blame on the front line people. Elsewhere in its Comment, the Agency once again generally acknowledges serious accountability failures on the one hand---with regard to El Masri and Gul Rahman in particular.  Here, however, the Agency also argues more extensively than before that the Study neglects some historical CIA efforts at internal policing.  One contractor involved in the death of an Afghan national, for example, was (famously) prosecuted; another contractor "who slapped, kicked, and struck" detainees was "terminated from the CIA, had his security clearances revoked, and was placed on a contractor watchlist[;]" and one of the officers involved in threatening Al-Nashiri with a power drill and gun "received a letter of reprimand, was blocked from receiving pay increases or promotions for two years, suspended without pay for a week, and removed from the program." Committee Conclusion #18: The CIA marginalized and ignored numerous internal critiques, criticisms, and objections concerning the operation and management of the CIA's Detention and Interrogation Program. The Study concludes that the CIA stifled internal dissent and generally was unresponsive to criticisms coming from CIA officers in the field who questioned the effectiveness of the interrogation techniques, including Office of Medical Services Personnel who raised concerns about safety. Complaints on the part of CIA officers involved with the program extended beyond the efficacy, legality and safety of the procedures used. In particular, numerous CIA officials worried that the Agency was misrepresenting details of the program to the Office of the Inspector General, the Department of Justice, Congress, the White House and the American public more generally. According to the Study, these alarms were deliberately silenced by CIA leadership, who allowed the Agency to persist in disseminating inaccurate information to key partners in the government.

Minority Views as to Conclusion #18

The Minority does not specifically address this Conclusion.  (Nevertheless, as we previously covered, the Minority did contest Conclusion 5 of the committee’s Study, that the CIA had misled the the Office of Legal Counsel of the Justice Department with respect to actual Agency interrogation methods. The Minority also takes issue with Conclusion #9, that the Agency impeded oversight by its Inspector General.)

CIA Comment

Regarding internal dissent, the Agency argues that the Study uses internal conversations, chats, and emails from agency officials---but does so in a fashion that is either "out of context, anecdotal, or inaccurate.  For example, contrary to one passage in the Study, CIA officers did not hold back on any concerns about a presidential speech's references to Abu Zubaydah; instead, the officers plainly raised concerns that the draft speech's language would overstate the detainee's "defiance."  And that one officer told another in a "chat" session that he felt "ostracized" for airing his opinion that KSM withheld information simply does not, in the Agency's view, support a finding that dissent was not tolerated CIA-wide.  Other examples are along similar lines according to the CIA: each sounds sinister without needed context, or just doesn't support the Study's charges. Ultimately, the Agency says the objections of some agency employees was proof of a healthy skepticism regarding the program’s implementation, and that dissenting voices were not silenced:
CIA officers, who feel passionately about their mission, are not known to mince words or “keep silent," as the Study alleges. There is no evidence they did so here; to the contrary, some of the very emails and “chats" cited by the Study point to the existence of an atmosphere in which officers are unafraid to give voice to their dissenting views. Throughout the life of the program, a vibrant internal debate allowed senior CIA officers to consider and, as appropriate, accept the perspectives of field and Headquarters officers directly involved in the interrogations.

Committee Conclusion #19: The CIA's Detention and Interrogation Program was inherently unsustainable and had effectively ended by 2006 due to unauthorized press disclosures, reduced cooperation from other nations, and legal and oversight concerns.

The report concludes that dwindling support on the part of American allies led to the program’s demise by 2006. Indeed, the Committee writes that “[w]ith the exception of [redacted Country], the CIA was forced to relocate detainees out of every country in which it established a detention facility because of pressure from the host government or public revelations about the program...By 2006, the CIA admitted in its own talking points for CIA Director Porter Goss that, absent an Administration decision on an ‘endgame’ for detainees, the CIA was ‘stymied’ and ‘the program could collapse of its own weight.’” Rising opposition to the program in American and global media contributed to the ultimate unsustainability of the detainee program, such that by 2006 the Agency was no longer to continue with the clandestine detention centers.

Minority Views as to Conclusion #19

The Minority does not specifically address this Conclusion.  (To be sure, the Minority elsewhere notes its disagreement with the Committee about the extent to which the CIA disclosed inaccurate information about the program to various media outlets.)

CIA Comment

The Agency largely agrees with the Committee that the secrecy of the program had all but eroded by 2006 as a result of media attention, and that finding willing partners became increasingly difficult as a result of the disclosures. “As information about the program became public,” the Agency writes, “both CIA and our foreign partners faced worsening challenges to operational security. Further, we agree with the Study that by 2006 the interrogation program had largely ceased to operate, and that legal and oversight concerns were significant reasons for this.” With that said, the Agency cites additional factors that contributed to the end of the program.  One is Al-Qaeda’s relocation to Pakistan’s Federally Administered Tribal Areas (FATA)---areas that were “largely inaccessible” to the Government of Pakistan. This relocation of core Al Qaeda leaders, according to the Agency’s response, “made it significantly more challenging to mount capture operations resulting in renditions and detentions by the RDI program.” Moreover, by 2006 CIA's focus had shifted from interrogation to long-term detention, and facilities inadequate to that task had been shuttered.  Lastly---and contrary to the Study's suggestion---the CIA argues that the intermittent suspension of enhanced interrogation by CIA leadership demonstrates the Agency's sensitivity to an "evolving legal and political landscape," rather than the "tenuous nature of the legal foundation supporting the program."

Committee Conclusion #20: The CIA’s Detention and Interrogation Program damaged the United States’ standing in the world, and resulted in other significant monetary and non-monetary costs.

According to the Study, the CIA’s RDI program and the EITs within it led to a significant deterioration in the standing of the United States and its credibility on human rights issues around the world. The Committee asserts that the program damaged and complicated bilateral intelligence relationships, and led to diplomatic confusion. In one instance, the Secretary of State ordered the U.S. ambassador in a country to deliver a demarche to that country “demanding it provide full access to all detainees” to the International Committee of the Red Cross, even though the detainees the country was holding included those held in secret at the CIA’s request. The Committee also finds that the Detention and Interrogation Program cost over $300 million in non-personnel costs. These costs included construction and maintenance of detention facilities, some of which were never used, as well as financial inducements for foreign officials designed to increase support for the program.

Minority Views as to Conclusion #20

The Minority does not specifically address Conclusion #20.

CIA Comment

The CIA agrees that the program had significant monetary costs, totalling $246.4 million in non-personnel costs from FY2001 to FY2006. But the CIA also takes the charge of financial impropriety head on, noting that “inducement payments [REDACTED] are neither unusual nor improper.” Instead, “CIA has statutory authority to make subsidy payments to foreign officials” and that CIA accounted for the funds according to required procedures. The CIA also disputes the Study's claim that the Detention and Interrogation Program harmed diplomatic and bilateral relationships with other countries. To be sure, the Agency acknowledges that leaks about the program “resulted in varying amounts of domestic fallout in these countries." But it insists nevertheless that assessments---both by CIA political analysts unconnected to the program and others---do not support the conclusion that the program “strained relations” between the US and its partners. The Agency pins the diplomatic fallout on unauthorized disclosures.  It was not until the leaks, argues the Agency, that host countries began to alter their involvement and cooperation. The Comment also details a response to a number of charges about deteriorations in relations with a redacted number of countries, but, those responses are also redacted in their entirety.

Matt Danzer is a graduate of Columbia Law School, where he was a member of the Columbia Law Review and served as president of the National Security Law Society. He also works as an editor for the Topic A public policy blogs on Roll Call. He graduated from Cornell University in 2012 with a B.S., with honors, in Industrial and Labor Relations.
Cody Poplin is a student at Yale Law School. Prior to law school, Cody worked at the Brookings Institution and served as an editor of Lawfare. He graduated from the UNC-Chapel Hill in 2012 with degrees in Political Science & Peace, War, and Defense.
Alexander Ely is a student at Columbia Law School, where he is Editor-in-Chief of the Columbia Journal of Transnational Law and Vice President of the National Security Law Society. He holds an M.A. in Law and Diplomacy from The Fletcher School at Tufts University, where he was Editor-in-Chief of The Fletcher Forum of World Affairs and spent a summer as a Harold Rosenthal Fellow in International Relations at the Department of Defense. Prior to graduate school, he spent two years working for an international communications consulting firm, and was previously an Editorial Researcher at Foreign Policy Magazine. He graduated with a B.A., cum laude, in Government from the College of William & Mary in 2009.

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