What Happens Next Will Shape the President’s Legacy on Torture
By Scott Roehm, Senior Policy Counsel, Rule of Law Program

The Senate Intelligence Committee just took a courageous and critical step towards making sure that an awful chapter of our history won’t repeat itself.  In a bipartisan vote of 11-3, the committee decided to send for declassification the 480-page executive summary and 20 findings and conclusions of its more than 6,000 page report on the CIA’s post-9/11 rendition, detention and interrogation (RDI) program.  The ball is now squarely in President Obama’s court.

On March 12, the President said that he is “absolutely committed to declassifying the report” in order to help the American people better understand what its government did in their name, and to ensure that we learn from terrible mistakes. Here’s how he can meaningfully fulfill that promise:

First, ensure that declassification moves swiftly, and, per a recommendation of the Constitution Project’s Task Force on Detainee Treatment, that any redactions are limited to those legitimately necessary to protect specific individuals and to honor specific, valid, diplomatic agreements.  That means releasing information that the executive branch has fought tooth and nail to keep secret in military commission cases and Freedom of Information Act litigation.  Descriptions of “enhanced interrogation techniques” – including their application, duration, frequency, and sequencing – should not be redacted.  Neither should descriptions of conditions in which detainees were held at CIA black sites.  That information, along with details about how, why, and on what basis decisions about the RDI program were made, is critical to preventing the program’s resurrection.

Second, and perhaps most importantly, the White House must drive the declassification process.  The CIA will inevitably be consulted about what to redact, but the agency cannot be allowed to control the pen.  The White House must have the final say, just as it did in 2009 when President Obama overrode the CIA and released the torture memos with minimal redactions.  While Director Brennan has promised “not … to stand in the way” of releasing the committee’s report, the CIA has a clear conflict of interest that it has proven unable to overcome.

The committee’s more than 6,000 page analysis reportedly concludes that the RDI program was brutal, ineffective and unnecessary, and that the CIA repeatedly misled Congress, the Justice Department, and the White House about the program’s safety and efficacy.  (Note:  those misrepresentations were critical to the program’s authorization by the Justice Department.)    According to Chairman Feinstein and several of her fellow committee members, the agency responded to that stinging critique by trying to frustrate the committee’s oversight work at nearly every turn.  It delayed; providing its response to the committee’s report more than four months late and refusing to meet with Committee members or staff prior to doing so.  It concealed; repeatedly, and without notice, removing committee access to documents the CIA had provided in the course of the committee’s investigation, then attempting to hide from the committee the so-called Panetta review (an internal summary and analysis of the RDI program that reportedly corroborates important committee findings and casts doubt on the veracity of the agency’s response to the Committee’s report).  And it actively resisted; misleadingly impugning the accuracy of the committee’s report, secretly searching committee staff’s computers, and alleging to the Justice Department that staff may have committed a crime by accessing relevant documents given to them by the agency itself.  The criminal allegation was made by an acting CIA general counsel who was neck deep in the RDI program from its inception and is mentioned over 1,600 times in the committee’s report.

In her March 11, 2014 comments on the Senate floor, Chairman Dianne Feinstein called this a “defining moment” for the future of congressional oversight of U.S. intelligence activities.  She is right.  But this is also a defining moment for the President’s legacy on torture.

The President was rightly praised when he formally shut down the RDI program immediately upon entering office.  But the executive order through which he did so could be overturned by a future president with the stroke of a pen.  If that sounds far-fetched, remember that presidential candidate Mitt Romney’s national security advisors recommended that a President Romney do just that.

An informed public is the key to building strong and lasting safeguards against torture; to identifying the full set of reforms we need to make to our laws, policies and institutions, and to ensuring that those reforms take root.  That is the legacy the President should leave.  It is within his reach.  He needs to seize it.



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