A Hole In the Bottom of the Boat

December 16, 2014

This week, the U.S. Senate Select Committee on Intelligence finally released its report on the Central Intelligence Agency’s detention, and interrogation program. The report confirms what countless survivors, whistleblowers, journalists, military leaders, advocates, and lawyers – not to mention UN Special Rapporteurs, Canadian and British inquests, the Council of Europe, and the European Court of Human Rights – have asserted for more than a decade: the United States engaged in an elaborately planned, clandestine system of torture.

Many have rushed to minimize the report’s significance. Bush-era defenders predictably point to the failure to interview CIA staff; they neglect to mention that investigators were met with opposition and stonewalling at every step. John Yoo has even stepped out of the shadows of tenure at Berkeley to trot out his empty legal justifications. Meanwhile, Charles Hayden points to the DOJ opinions as proof of the CIA’s good faith and complains that the report doesn’t tell the full story, while refusing to offer any alternative facts. The merry-go-round keeps spinning.

More surprising are the reactions by the very people – myself included – who should welcome the report. The report doesn’t go far enough. It rehashes what we already knew. The American people have watched so much “24” and “Homeland” and “Zero Dark Thirty” that this moment will fizzle just like everything else has so far. In other words, so what?

Then I read the 528 pages.

Here’s why it matters. Until now, our collective view of the CIA’s unlawful acts have come in bits and pieces from survivors and whistleblowers. For years, I worked alongside lawyers and law students to bring civil claims on behalf of survivors against the high-level officials and contractors responsible for their torture. In trying to reconstruct a narrative from available information, I often felt like I had a hood over my head, able only to see just the shoes of the person in front of me, hearing echoes of terrible things happening down the hall, unable to name my captor, let alone to make any sense of it all.

Now, we have a fuller picture and from the inside. We know, for example, that the entire program was premised on pseudo-science peddled by two military contractors. Those men, Bruce Jessen and James Mitchell, ultimately received $81 million for their services. We also know that the CIA pushed for a legal green light and received it. The reason why the Bybee-Yoo memo included the astonishing assertions that any subsequent criminal torture prosecutions could be trumped by the President’s Article II powers or “necessity defense”? Because, in the words of John Yoo: “They want it in there.”

Perhaps more important, as Harold Hongju Koh points out, the Senate report effectively ends “the torture debate.” The report goes into surprising detail to debunk the most common claims about the various plots that were foiled by brave interrogators. What we read, instead, is that the information yielded through tortuous means was irrelevant, wrong, or superfluous. Far more effective were the tried and tested methods of intelligence gathering and foreign partnership.

Yet there is much the report does not and cannot do. To date, no torture survivor has had his or her day in court. And no one responsible for the torture has had to answer for his or her actions.

At least not in the United States. By contrast, Canada and the United Kingdom have reckoned with their own complicity, and the European Court of Human Rights has found violations by Poland and Macedonia for their roles.

Is there any path in the United States to accountability, not just an accounting? President Obama plainly wishes to turn the page on history. Many wish to see criminal prosecutions, and some advise a return to the proposal by Senator Patrick Leahy for a commission of inquiry. The ACLU’s Anthony Romero suggests a cynical compromise: pardon the torture architects so as to establish the illegality of their actions.

Part of me sees the appeal of President Obama’s urging us to move forward. How can the public be expected to care about the CIA’s abuse of terrorism suspects more than a decade ago when the nation is reckoning with the widespread (and long-standing) reality that Black men face harassment by local police and even the risk of extrajudicial execution? Our nation is adrift and listing precariously to one side, already full to the brim of injustice, tragedy, mistrust. Can we afford to take on more water?

Last week I witnessed a beautiful enactment of collective demands for justice led by a coalition of students at my law school. They marched hand-in-hand and single file from the law school to the federal courthouse before lying down in the street to mark a minute for every hour that Michael Brown’s body lay, abandoned and abused, on the ground. Seeing their fresh anger and hope, I felt a swell of optimism.

Perhaps, I thought, this boat can float.

Then, in reading the Senate report, I heard a sucking sound. The crimes are different, but the logic is the same. So long as some bodies are more valued than others. So long as some people may be sacrificed so that others may feel safe. So long as law bends to politics. So long as those in power can joke or boast about their illegal acts. So long as the costs of dissent push many into silence. I fear there is a hole in the bottom of this boat.

For us to move on as a nation, we must have—at a minimum—a collective reckoning of what unfolded in the years following 9/11. The Senate report is a start. It confirms the long-ignored claims of those who suffered, and it vindicates the brave men and women in uniform who rejected the turn to sadism. But the report stops short of accountability. A true commission of inquiry would give all participants an opportunity to air their version of events, would provide for the compensation of victims and their families, would provide the opportunity to ask for and to receive an apology, and would bind us publicly to foreswear future abuses. It is our best chance to set ourselves aright.