Once adopted, the logic of national security carries all before it. The release of the Legal Counsel memos, the detainee treatment report notes, was the high-water mark of Obama-era transparency on torture. CIA reports on the death of three prisoners in custody as well as on broad policy towards detainees remain classified; so do the results of inquiries by the armed forces criminal investigation division. The agency’s ability to withhold information probably contributed to the Justice Department’s decision not to pursue indictments on any of the 100 or so cases of CIA mistreatment which it investigated. Defense lawyers in the military trial of the “9/11 defendants” held at Guantanamo have had to work around a “protection order” that classifies entire subject areas — including anything related to the defendants’ arrest or capture, the conditions in which they were held, or the interrogation techniques to which they were subjected. Whatever becomes of the defendants, Americans will learn nothing from the trials.
On matters of secrecy, Obama has been little better than Bush. This has become notorious in the case of the drone program, a centerpiece of Obama’s prosecution of the war on terror. In a recent speech at the Oxford Union, Harold Koh, the former chief counsel of the State Department, said that the administration has failed to be “transparent about legal standards and the decision-making process that it has been applying.”
I asked Koh why the White House has so regularly deferred to the CIA on issues of transparency and accountability. Koh pointed out that the CIA’s concern that exposing past bad acts could serve as a recruiting tool for al Qaida was hardly trivial. But, he said of the White House: “They don’t have a good balancing mechanism on the value of disclosures. It’s almost like if nobody’s clamoring for it, the pressure can be resisted.” The pressure comes from the outside — from the press, from civil-liberties groups, and activists — but not from the inside. So the CIA carries the day.
And yet it’s not too late to expose, and learn from, the sorry history of the last decade. Last December, the Senate Intelligence Committee approved a 6,000-page report on the finding of its secret investigation into the treatment of detainees. The report, which has not been made public, describes the CIA’s detention program in minute detail. Among other things, it puts to rest the canard that torture works. In his confirmation hearings, CIA director John Brennan admitted that the report had led him to question “the information that I was given at the time” that so-called “enhanced techniques” had saved lives.
Brennan has learned this; other Americans may not have the chance. The CIA is likely to both dispute the findings and to try to keep them secret. In a letter to Obama, Sen. Mark Udall, D-Colo., complained that Brennan had shown “little to no interest” in working with his staff, and had already missed the deadline for response by more than two months. A congressional aide said that there was no sign that the White House had even examined the report, much less prepared a response.
The good news is that the irrepressible Vice President Joe Biden recently advocated publishing the findings, saying that Americans needed to “excise the demons” through a full disclosure of past abuses. Biden even compared the redemptive value of facing the truth on torture to the effect of the war-crimes tribunals on Germany. Obama probably didn’t authorize the analogy, but he may well have signed off on the position — in which case the comment should be read as a pre-emptive shot across the CIA’s bow.
In the course of questioning Brennan during Senate hearings, Sen. Udall quoted Howard Baker, the widely admired Republican moderate from the bygone age of Republican moderates, to the effect that the Church Committee report may well have weakened the CIA in the short run, but strengthened it in the long run — by reminding the agency of what it should as well as shouldn’t do. Apparently even the CIA agrees, since its website carries an admiring description of the committee’s findings. If and when the Senate Intelligence Committee report is made public, in whole or in part, current and former CIA officials, conservative pundits, and Republican politicians will no doubt join as one to warn that America’s national security has been compromised, its enemies emboldened, its intelligence operatives compromised. That’s what they said in 1975. They were wrong then, and they will be wrong now.
James Traub is a fellow of the Center on International Cooperation. He writes the Terms of Engagement column for Foreign Policy magazine.