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Torture Smoking Gun?

Sen. Sheldon Whitehouse (D-RI) opened a hearing on the Bush administration's torture policy quoting Tallyrand: "The greatest danger in times of crisis comes from the zeal of those who are inexperienced." Whitehouse promised to separate the "truth" from its "bodyguard of lies." In doing so, the former federal prosecutor brought the shadowy world of intelligence into Room 226 of the Dirksen Senate Office Building. Former star FBI interrogator Ali Soufan, widely described as the bureau's best and most effective interrogator working in the Arabic language, testified off-camera and behind a wooden partition. Concerned for his and his family's security, he made the unusual demand a part of his agreement to appear and testify.

The effort to destroy the Zelikow memo is not just evidence of standard record-keeping practice; it may well spring from recognition that the memo might be used as evidence that the Bush administration was engaged in criminality.

The hearing produced two significant developments as well as a great deal of political rhetoric. Soufan's testimony focused on the interrogation of Abu Zubaydah. Throughout the history of the torture debate, the Bush administration has cited this as a triumph of its techniques. Sen. Whitehouse read Bush's September 6, 2006, White House statement making one of these claims. Soufan, who was personally present through the process, called the Bush claims a "half-truth," accurate as to the circumstances of Abu Zubaydah's capture and detention, but not as to the claimed successes using highly coercive techniques. One of the Justice Department's torture memos (from May 2005) contained a similar claim that actionable intelligence was obtained "once enhanced techniques were employed." Soufan termed this a lie. He also noted that successful interrogations of Khalid Sheikh Mohammed and Jose Padilla, which gained useful intelligence, occurred before the introduction of the Bush program and therefore couldn't be claimed as success stories for it. In his remarks, Soufan sharply repudiated the harsh techniques he observed. "These techniques... are ineffective, slow, and unreliable and, as a result, harmful to our efforts to defeat al Qaeda," he said. He also downplayed claims that there was a dispute between the FBI and CIA about the use of the Bush techniques. CIA interrogators agreed with his assessment, he noted.

Philip Zelikow, a lawyer and history professor who had served as a counselor to Condoleezza Rice at the State Department, testified that the Justice Department had thwarted legislation sponsored by Sen. John McCain (R-AZ) that prohibited cruel, inhuman, and degrading techniques on detainees. He noted that McCain and other sponsors understood the legislation as a prohibition on waterboarding and other harsh techniques, but through legal sleight of hand, Steven Bradbury, then head of the Justice Department's Office of Legal Counsel, had nevertheless found that the legislation was ineffective to make the expected changes. Zelikow recorded his opposition to this view in his own memo, which he disseminated widely within the Bush administration. It was made clear to him that his memo was not appreciated, and, moreover, an effort was made to collect and destroy copies of the memo. One copy has now been identified in the records of the State Department, he noted. Its declassification and release are anticipated shortly.

The story surrounding the efforts to corral and destroy the Zelikow memo is more than a curious vignette. Lawyers studying the issue of criminal liability of the memo writers are focused on evidence of mens rea-a state of mind that reflects recognition of criminal wrongdoing. The effort to destroy the memo is not just evidence of standard record-keeping practice; it may well spring from recognition that the memo might be used as evidence that the Bush administration was engaged in criminality.


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Republicans called two legal experts to offer opinions but no fact witnesses. This raised the question of whether they have a CIA interrogator who is ready or willing to make a case to support Cheney's claims about the efficacy of torture.

In opening remarks, Sen. Russ Feingold (D-WI) leveled a direct attack on former Vice President Dick Cheney, saying he was "misleading the American people" with claims that Bush-era techniques had been effective. "Nothing I have seen-including the two documents to which former Vice President Cheney has repeatedly referred-indicates that the torture techniques... were necessary," Feingold said. Sen. Lindsey Graham (R-SC) entered the debate insisting the hearing was "not really fair to" the Bush administration. "I don't know whether this is actually pursuing the nobility of the law or a political stunt," he said. Graham offered a grilling of the former lead FBI interrogator, insisting that his view was "not the whole picture." However, Graham stumbled during the hearing, citing a debunked and now-retracted statement by former CIA agent John Kiriakou about the interrogation of Abu Zubaydah and was corrected by the witness for his mistake.

Graham was the only Republican to attend the hearing as a questioner, and the Republican side offered no fact witnesses of their own. Soufan's and Zelikow's presentations weren't refuted or weakened. For now the Republican pushback on the torture issue consists of attacks on the credibility of House Speaker Nancy Pelosi-what she knew and when she was told about the Bush administration techniques. Yet that issue has not caught fire and remains distant from the heart of the controversy. The Senate hearing set the stage for the release of the Justice Department's ethics report conducted while Bush was still in office. Zelikow called for a special investigation during his testimony and disclosed that evening on MSNBC's Rachel Maddow Show that the special prosecutor appointed under Bush to probe the destruction of CIA videotapes of torture, John Durham, has expanded to cover the CIA's failure to provide information to the 9/11 Commission about torture. Sen. Whitehouse has declared that he would chair new hearings featuring the Bush administration lawyers after the release of the Justice Department ethics report. Then the focus will fall on the possible impeachment of former OLC chief Jay Bybee, now a federal appeals judge, and bar discipline of other lawyers. The issue continues to build regardless of what the Obama White House wishes.

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Scott Horton

Scott Horton is a Contributing Editor of Harper's Magazine and lectures at Columbia Law School.  He is also a member of the board of the National Institute of Military Justice, the Andrei Sakharov Foundation, the EurasiaGroup and the American Branch of the International Law Association.

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