December 12, 2014 12:54PM

Brennan, Torture and the Accountability Vacuum

Yesterday, CIA Director John Brennan delivered his public response to the Senate Select Committee on Intelligence report on the CIA’s detention and interrogation program. Rather than use the opportunity to fully acknowledge and accept the report's findings and implications, Brennan offered a vigorous defense of the CIA, invoking the emotional trauma suffered by the country to help justify subsequent his agency actions.

Indeed, there were numerous, credible, and very worrisome reports about a second and third wave of major attacks against the United States,” Brennan said. “And while we grieved, honored our dead, tended to our injured, and embarked on the long process of recovery, we feared more blows from an enemy we couldn’t see ... and an evil we couldn’t fathom.

“This is the backdrop against which the Agency was directed by President Bush to carry out a program to detain terrorist suspects around the world.

“In many respects, the program was uncharted territory for the CIA, and we were not prepared. We had little experience housing detainees, and precious few of our officers were trained interrogators. But the President authorized the effort six days after 9/11, and it was our job to carry it out.” (emphasis added)

But as the Senate report makes clear (p. 11), President Bush’s covert action Memorandum of Notification (MON, the formal authorization for the rendition and detention program) “made no mention of interrogations or interrogation techniques.” Thus, the initiative for the interrogations—including techniques involving torture under international and U.S. law—originated within the CIA. And as the Senate report lays out repeatedly—using the CIA’s own internal documents—agency personnel, and particularly its attorneys, knew very well that what they were proposing almost certainly violated U.S. and international law.

One early example (from p. 33 of the Senate report summary) of this articulated concern came in July 2002, when CIA attorneys

drafted a letter to Attorney General John Ashcroft asking the Department of Justice for "a formal declination of prosecution, in advance, for any employees of the United States, as well as any other personnel acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah that otherwise might subject those individuals to prosecution.” (emphasis added)

Enough CIA personnel understood they would be breaking the law that they had the foresight to ask preemptively for a DoJ “get out of jail free card” in the form of formal opinions from the Office of Legal Counsel. They got those opinions—which were later withdrawn, but which still likely would provide a shield from prosecution for waterboarding and the other torture tactics used by CIA interrogators.

And when pressed on whether the CIA should ever conduct such a program again, Brennan amazingly said he would “defer to the policymakers in future times when there is going to be the need to be able to ensure that this country stays safe if we face a similar type of crisis.”

Instead of learning the right lessons from this episode—that torture never produces accurate, reliable intelligence and that its use destroys the moral and political authority of the user—Brennan clearly left the door open to a future CIA rendition and detention program, including the use of coercive interrogation techniques.

Sen. Diane Feinstein, the outgoing chairwoman of the Senate Intelligence Committee, has called publicly for legislation to prevent a repeat of this episode. In light of Director Brennan’s remarks, it will be interesting to see whether Senator Feinstein’s first act in the 114th Congress will be to take legislative action to close the door on the CIA ever again engaging in rendition, detention and torture.