Shadow Government

The interrogation programs were wrong, but did they work?

By Philip Zelikow

One other consequence of the declassification of the Justice Department opinions and the revelation of the CIA interrogation program is a debate on the effectiveness of these methods. Some of my friends are troubled, because they have been told so often that these methods work.

I will have more to say on the topic of effectiveness later. But for now, I urge those following this controversy to read the op-ed piece published in the New York Times today by former FBI special agent Ali Soufan. I met and interviewed Soufan in the course of my work at the 9/11 Commission, while he was still doing important work at the FBI. From my commission work, my fellow staffers and I had direct knowledge about several of the specific assertions Soufan makes in this piece: about Abu Zubaydah, Ramzi Binalshibh, and Khalid Sheikh Mohammed. My fellow staffers and I considered Soufan to be credible. Indeed, Soufan is fluent in Arabic, and he seemed to us to be one of the more impressive intelligence agents -- from any agency -- that we encountered in our work.

Soufan states, accurately, that some of the CIA claims reprinted in the Justice opinions (and recently repeated in the media) are demonstrably false or overstated. Some of the very claims that Soufan describes were also used, while I was in government, in CIA memos defending the program that were submitted to the White House. Therefore, the declassification of those memos, as Vice President Cheney and others have called for, would only raise questions that would have to be answered with still more disclosures. The Senate Select Committee on Intelligence appears to be trying to sort this out.

To be fair to the program's proponents, many successful intelligence cases are accompanied by rival claims about credit, arguments about which agent or which source provided the key information. That is natural and healthy. And sometimes both sides can be right: a successful stream can have many tributaries. But Soufan's piece is a reminder to be wary of such claims, and especially wary about claims on the key point: whether the extreme techniques were necessary to get satisfactory results.

Among the many hidden costs to intelligence collection are ones like this point, which Soufan makes: "An F.B.I. colleague of mine who knew more about Khalid Shaikh Mohammed than anyone in the government was not allowed to speak to him." At the 9/11 Commission, we noticed this too. At the time (late 2003), my commission colleagues and I could not understand why this agent was not helping to question KSM. This was part of broader concerns we had about the substantive quality of the interrogations. I raised the issue in writing with the CIA's General Counsel in our efforts to dig deeper into the way the interrogations were being conducted --  a point that I mentioned in this previously disclosed memo.

FBI Director Robert Mueller has said publicly that he does not believe that coercive techniques made the difference in averting any planned terrorist attacks against the United States. Mueller has sweated the details of innumerable leads and cases over the last eight years. So, though he may or may not be right, his opinion is entitled to some attention, and it is not self-serving.

Shadow Government

The politics of terrorism and "torture memos"

By Peter Feaver

I am not a lawyer, not even a bad lawyer, so I am not competent to judge one way or the other on the legal reasoning in Philip Zelikow's post. And, since, unlike Philip, I did not work on the issue inside, I am not privy to all that he knows about the matter. His legal reasoning strikes me as plausible, and I certainly agree with him that the legal issue is just one aspect of the matter.  Philip usefully embeds the legal framework within a larger ethical framework. We also need to recognize that the ethical framework is part of a political framework.

This political framework has been emphasized explicitly and repeatedly by President Obama's own national security team. Dennis Blair and Leon Panetta argued strenuously against Obama's decision to release the memos, in part on the grounds that it would fuel a politicized witch-hunt that would hurt national security. And, ironically, Obama's political team has implicitly acknowledged this framework, but in a back-handed way: in the quintessentially political way they decided to release only portions of the "torture memo" corpus. Thus, the Obama team declassified the memos that documented what was done and the legal rationales offered, but not the memos that documented what information, if any, the interrogations produced. Even the memos from Obama's own advisors were doctored so as to exclude information that might have been deemed exculpatory for President Bush.

Acknowledging the political framework does not preclude independent legal or ethical judgments. Philip's post is proof that a reasonable lawyer, privy to all of the information, could decide that the Bush team's legal reasoning was flawed. And it is likewise proof that an insider, privy to all of the information, could decide that the interrogation policy could fail the ethical test. But the political test is, in some ways, a harder one because it is a shifting one. 

Had the torture debate been fully engaged when the Bush team was making the decisions it made in 2001-02, I think it is plausible that the political process would have produced a consensus that would have been far more sympathetic to the Bush position than the present day consensus appears to be. At a minimum, it would have made it impossible for Congressional Democrats to claim, as they implausibly do now, that despite all the briefings they received they just can't remember coming down one way or the other on the issue.

The Bush team erred by not grounding the policy more firmly in the bedrock of the political process that the Framers identified for contentious issues -- namely, in involving Congress and the public -- and, instead, by relying on the penumbra of the Commander-in-chief clause. We non-lawyers have learned one thing from the abortion debate: The penumbra is a lousy place to park contentious issues.

I predict that, for better or worse, the political framework will be the decisive one going forward. At this point, debates about the legal or ethical arguments are probably impossibly entangled with political questions. And, should the larger worm turn -- should the terrorists succeed in launching another attack on the United States -- then I would not be surprised to see the political debate shift dramatically again.