The CIA and Torture: Is the Senate Having Its Cake and Eating it Too?

December 16, 2014

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When reading the Senate report on CIA torture and the various responses to it, I have often found myself thinking about the country’s experience with CIA excesses during the 1970s. I cannot help concluding that much like the Eisenhower and Kennedy Administrations years ago, the Senate seems to be trying to have its cake and eat it too with regard to the dark side of the intelligence business. Nothing in my comments below should be construed as condoning the torture that took place, but there are some important political lessons to take away from these experiences.

In the 1950s and 1960s, Eisenhower and Kennedy both made extensive use of the CIA’s covert action capabilities. The failed attempts to assassinate Fidel Castro were among the most dramatic (and ludicrous) of the operations that the agency conducted at the behest of the White House. However, the presidents’ fingerprints never appeared anywhere on these operations. The result was that when stories of the CIA’s covert actions began to become public, it was easy to hold the presidents blameless and reasonable to label the agency as a “rogue elephant on the rampage,” in the famous words of Senator Frank Church.

Of course, the Church Committee ultimately concluded that the CIA had not actually been a rogue elephant and that while precise political responsibility was often hard to pin down, in general terms, the agency had done what its Executive Branch masters had directed it to do. Democratic Senator Daniel Inouye, the first Chairman of the Senate Select Committee on Intelligence, went further in 1977 when he said that “in almost every instance, the abuses that have been revealed were a result of direction from above, including presidents and secretaries of state. Further, in almost every instance, some members of both houses of Congress assigned the responsibility of oversight were knowledgeable about these activities.”

Inouye’s comments would be almost as applicable today (aside from the fact that Secretary of State Colin Powell was apparently kept in the dark about the details of the CIA interrogation program). True, the Senate report says that the CIA consistently lied to its Congressional overseers or kept silent on the question of detainee treatment and interrogation. The Senate thus seeks to portray the Congress as blameless for the excesses of another rogue elephant. However, a substantial body of information says otherwise. A 43-page summary of CIA’s interactions with Congress, as well as other declassified documents, paint a picture of a Congress that was well-briefed on the details of the infamous “enhanced interrogation techniques” and the broader program of which they were a part. Former head of the Clandestine Service Jose Rodriguez made this point in the Washington Post, as did former CIA General Counsel John Rizzo on NPR on Dec. 10. On Dec. 9, I sat next to former Congressman Pete Hoekstra, former head of the House Permanent Select Committee on Intelligence, as he told Al Jazeera America’s audience that he and his colleagues knew about these matters at the time.

In the 1970s, the accountability of the president was ensured by passage of legislation that required the president to sign a “finding” whenever he wished the CIA to engage in covert action. Perhaps we need something similar today to ensure that members of Congress cannot avoid political responsibility for what they said in private while carrying out their oversight duties.

 

Mark Stout is a Senior Editor at War on the Rocks. He is the Director of the MA Program in Global Security Studies and the Graduate Certificate Program in Intelligence at Johns Hopkins University’s School of Arts and Sciences in Washington, D.C.

 

Photo credit: John D. (Jay) Rockefeller IV

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3 thoughts on “The CIA and Torture: Is the Senate Having Its Cake and Eating it Too?

  1. Agree with the article with the exception of the final paragraph. The purpose of a finding is precisely to present it to congress. By law (title 50) before a covert action can be initiated, a finding must be signed by the president AND PRESENTED to the House and Senate intelligence committees. The finding alone isn’t what binds the president, it’s that – by law – he has to present the finding to congress. While the law doesn’t give any veto authority to congress, it does make damn sure that the president has thoroughly reviewed the action, and because of it, no covert action (yet) has proceeded if congress disagreed. Covert action is always volatile, and no president wants to be standing alone should it turn into a debacle. One other point: By the same statute, the finding cannot break any US Laws. It sounds like a tautology, (by law the finding cannot break the law) but in essence, this means the president has also made damn sure that the finding is legal. Once again, no president wants the opposing party to use the finding against him, and each finding has about four thousand lawyers going over it before it is presented. Finally, by law, congress MUST be updated on the covert action for the duration it occurs. These three facts have been what has puzzled me over the whole debate. It’s not classified, and is plainly spelled out in Title 50 (see final link given in article), yet nobody in the press has focused on this aspect of the debate. For the interrogation program, a finding was created, and congress saw it (at least the intel committees), then was updated on the action regularly – in accordance with US Code. If it was illegal then, why didn’t anyone step up to the plate? Answer: Congress judged it legal then. Yes, they’re having their cake and eating it too.

  2. Hi Brad.

    Thanks for the very thoughtful response. You are quite right, of course, about findings being given to the Congress. I’d only quibble with one secondary point that you make: I think that the very fact of signing the finding and giving a copy to the CIA itself would inextricably connect the President to the action. Of course, giving the MON to Congress binds him even further, as you note.

    Regarding the broader point you make, I am quite in agreement with you. I was, rather, thinking in a slightly different direction–and perhaps I wasn’t as clear as I should have been. I was thinking less about the MON itself as about the continuing briefings and exercise of Congressional oversight in a more general sense when I maintained that Congress was trying to erase its fingerprints from this interrogation and torture debacle.

    1. Completely agree. I fully believe that congress is being duplicitous with the “Nobody told me” defense that my daughter routinely uses. If that were the case, they would have screamed years ago with a finite, specific law that was broken, namely Title 50. That didn’t happen, and I find it odd that the press hasn’t looked into the ramifications. It’s not a he-said/she-said like the press is making it out to be. I do agree with your broader point that it’s much easier for Congress to distance themselves precisely because they don’t have a hard object with their name on it (finding). in fact I think you bring up a valid point. The president has signed a finding, but outside of vague meeting notes that detail those in attendance, the congress doesn’t sign anything saying, “I have read and understand the MON”, giving them leeway in the future to get on national television and say, “Nobody told me…Ever.”