A soon-to-be released Senate report on the CIA doesn’t assess the responsibility of former President George W. Bush or his top aides for any of the abuses of the agency’s detention and interrogation program, avoiding a full public accounting of one of the darkest chapters of the war on terror.
“This report is not about the White House. It’s not about the president. It’s not about criminal liability. It’s about the CIA’s actions or inactions,” said a person familiar with the document, who asked not to be further identified because the executive summary – the only part to that will be made public – still is in the final stages of declassification.
The Senate Intelligence Committee report also didn’t examine the responsibility of top Bush administration lawyers in crafting the legal framework that permitted the CIA to use simulated drowning called waterboarding and other interrogation methods widely described as torture, McClatchy has learned.
“It does not look at the Bush administration’s lawyers to see if they were trying to literally do an end run around justice and the law,” the person said.
As a result, the $40 million, five-year inquiry passed up what may be the final opportunity to render an official verdict on the culpability of Bush, former Vice President Dick Cheney and other senior officials for the program, in which suspected terrorists were abducted, sent to secret overseas prisons, and subjected to the harsh interrogation techniques.
“If it’s the case that the report doesn’t really delve into the White House role, then that’s a pretty serious indictment of the report,” said Elizabeth Goitein, the co-director of the Brennan Center for Justice’s Liberty and National Security Program at the New York University Law School. “Ideally it should come to some sort of conclusions on whether there were legal violations and if so, who was responsible.”
At the same time, she said, the report still is critically important because it will give “the public facts even if it doesn’t come to these conclusions. The reason we have this factual accounting is not for prurient interest. It’s so we can avoid something like this ever happening again in the future.”
Several panel members have extolled the more than 6,000-page report as one of the most comprehensive examinations of an executive branch agency ever undertaken by Congress.
“There are more than 35,000 footnotes in the report,” Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., declared after the panel approved the final draft of the report in December 2012. “I believe it to be one of the most significant oversight efforts in the history of the United States Senate, and by far the most important oversight activity ever conducted by this committee.”
However, the Democratic-controlled committee apparently dropped a demand that the White House surrender some 9,400 documents related to the program, raising questions about Feinstein’s claim. The White House had refused to turn over the records for five years, citing “executive branch confidentiality interests.”
The specific details of the documents remain unknown. The CIA declined to comment. In a statement, Feinstein declined to discuss the report but said it was meticulous and the “definitive review of the program.”
The White House declined to comment on the contents of the committee’s report. “The president has made clear that the program that is the subject of the committee’s work is inconsistent with our values as a nation,” said national security spokeswoman Bernadette Meehan.
Meehan also said there were no updates on the documents the White House withheld from the panel’s review. “As we have discussed with the committee, during the course of the review, a small percentage of the total number of documents have been set aside because they raise executive branch confidentiality interests,” she said.
In voting in March 2009 to review the CIA’s Rendition, Detention and Interrogation Program, the committee tailored the guidelines to focus the inquiry solely on the CIA, including how the agency “created, operated, and maintained its detention and interrogation program.”
“As an oversight document the main premise is about whether Congress was accurately and appropriately informed by the CIA,” said the person familiar with the report, one of several knowledgable sources who spoke to McClatchy. “The report will show that the CIA did not provide accurate information, and in some cases provided misleading information.”
The narrow parameters of the inquiry apparently were structured to secure the support of the committee’s minority Republicans. But the Republicans withdrew only months into the inquiry, and several experts said that the parameters were sufficiently flexible to have allowed an examination of the roles Bush, Cheney and other top administration officials played in a top-secret program that could only have been ordered by the president.
“It doesn’t take much creativity to include senior Bush officials in the Senate Intelligence Committee’s jurisdiction,” said Kenneth Roth, executive director of Human Rights Watch. “It’s not hard to link an investigation into the CIA’s torture to the senior officials who authorized it. That’s not a stretch at all.”
It’s not as if there wasn’t evidence that Bush and his top national security lieutenants were directly involved in the program’s creation and operation.
The Senate Armed Services Committee concluded in a 2008 report on detainee mistreatment by the Defense Department that Bush opened the way in February 2002 by denying al Qaida and Taliban detainees the protection of an international ban against torture.
White House officials also participated in discussions and reviewed specific CIA interrogation techniques in 2002 and 2003, the public version of the Senate Armed Services Committee report concluded.
Several unofficial accounts published as far back as 2008 offered greater detail.
Cheney and Defense Secretary Donald Rumsfeld relentlessly pressured interrogators to subject detainees to harsh interrogation methods in part to find evidence of cooperation between al Qaida and the late Iraqi dictator Saddam Hussein, McClatchy reported in April 2009. Such evidence, which was non-existent, would have substantiated one of Bush’s main arguments for invading Iraq in 2003.
Other accounts described how Cheney, Rumsfeld, National Security Adviser Condoleezza Rice, Attorney General John Ashcroft, and Secretary of State Colin Powell approved specific harsh interrogation techniques. George Tenet, then the CIA director, also reportedly updated them on the results.
“Why are we talking about this in the White House? History will not judge this kindly,” Ashcroft said after one of dozens of meetings on the program, ABC News reported in April 2008 in a story about the White House’s direct oversight of interrogations.
News reports also chronicled the involvement of top White House and Justice Department officials in fashioning a legal rationale giving Bush the authority to override U.S. and international laws prohibiting torture. They also helped craft opinions that effectively legalized the CIA’s use of waterboarding, wall-slamming and sleep deprivation.
Even so, the executive summary of the Senate Intelligence Committee’s report doesn’t examine the responsibility of Bush and his top advisers for abuses committed while the program was in operation from 2002 to 2006, according to several people familiar with the 500-page document.
Their comments are bolstered by the report’s 20 main conclusions, which do not point to any wrongdoing outside of the CIA.
Instead, the conclusions only mention the White House once, asserting that the CIA impeded effective White House oversight and decision-making.
“The report does not put responsibility with the White House,” said a second person familiar with the panel’s report.
The conclusions, published by McClatchy in April, paint a picture of an intelligence agency that concocted and implemented the program on its own and sought to evade any oversight.
The report primarily focused on discerning whether the use of the harsh interrogation techniques gained valuable intelligence, concluding that they did not. The CIA has rejected that finding, contending that use of the techniques produced vital information.
The executive summary of the report condenses the narratives of 20 detainee cases.
In one instance, McClatchy learned, the Bush administration claimed that the waterboarding of Khalid Sheikh Mohammed, the 9/11 mastermind, led to the foiling of a terror plot against Los Angeles’ Library Tower. The study, however, concludes that that information could have been learned without using the harsh interrogatiom techniques on Mohammad, who was waterboarded 183 times.
The scope of the committee’s work was hamstrung by concerns that the investigation would be an open-ended political witch hunt.
“This issue has unfortunately become so politicized that this report might have been attacked as a political document if it had” delved into the White House, said Goitein. “That’s not the ideal outcome, but it’s an understandable calculus in my mind.”
Along with being handicapped by the political considerations, the panel confronted two prior Justice Department investigations that declined to assign criminal liability to any officials involved in the program. One probe was conducted under the Bush administration and the second under President Barack Obama.
Moreover, Obama opposed any further inquiry. Although he signed an executive order banning waterboarding and other enhanced interrogation techniques soon after taking office, he also ruled out future prosecutions of those who participated in the program.
The extent of the Obama’s fury over the panel’s study was revealed in a memoir by former CIA Director Leon Panetta that was released this month. The president, he wrote, was livid that the CIA agreed in 2009 to give the committee access to millions of the agency’s highly classified documents.
“The president wants to know who the f--- authorized this release to the committees,” Panetta recalled then-White House Chief of Staff Rahm Emanuel shouting at him. “I have a president with his hair on fire and I want to know what the f--- you did to f--- this up so bad!”
The Senate Intelligence Committee’s investigation has been mired in controversy. Earlier this year, the agency was forced to admit it had improperly monitored the computers panel staff had used to construct the study. Meanwhile, the agency accused staff of removing classified information from a secure CIA facility without authorization. Both incidents resulted in warring criminal referrals to the Justice Department, which declined in July to further investigate.
The tensions over the investigation have continued to hold up the public release of the executive summary, which now has been delayed for nearly two years since the panel approved the final draft in December 2012.
The executive branch originally requested that 15 percent of the summary be redacted. McClatchy has learned that negotiations have reportedly progressed so that now roughly 5 percent will be blacked out of the summary’s public version, but there is no set date on when it will be released.