Current and Former Intelligence Officers Have Been Playing Americans for Chumps

by John Prados

John Prados is a senior fellow with the National Security Archive at George Washington University, where he heads its CIA Documentation Project. Read more on these issues on his website johnprados.com.

Current and former intelligence officers have been playing Americans for chumps. To this insult is now added injury, not the injury to the CIA detainees, horrible though that was, but real injury to the entire system of regulation, management, and oversight of the United States intelligence community. Should the present situation be allowed to stand the regulatory mechanisms that are supposed to govern U.S. intelligence activities will no longer be worth anything. The proof is on the table and plain to see. No microscope required. The implications of all this are staggering.

Today the American people confront a major quandary over activities of the Central Intelligence Agency (CIA). Over the first decade of this century, and particularly in the years between 2002 and 2005, the CIA created a network of secret prisons in which known or suspected enemies—and even friends erroneously apprehended—were imprisoned without charges. Many of the detainees were tortured. The Senate Select Committee on Intelligence (SSCI) began investigating this matter in 2009, segueing from an inquiry into charges CIA officers had destroyed videotapes showing the torture. The Senate intelligence committee’s investigative report, completed in 2012, languished for two years while the CIA first demanded revisions, and then simply sat on the document without declassifying it for release.

Ten days ago, on December 9, the report on CIA torture finally saw the light of day. From that moment the CIA did everything it could to discredit the Senate investigation. Former CIA officers implicated in these activities, including three agency directors, allied themselves to neutralize the impact of the report. They started up a website, “ciasavedlives” as a focal point of their activity. Speaking and writing for a wide array of media, the former agency officers insisted the CIA pursued its torture program exactly the way the NSA spied on millions of Americans—with the full approval of the Bush administration, carefully restrained by legal protocols laid down by (in this case) the Department of Justice, and fully accountable to congressional oversight. Americans are supposed to believe those things make torture OK.

You have probably heard that the CIA officers succeeded. That is, a Washington Post-ABC News Poll shows that a plurality of Americans (49%) believes what the CIA did was not torture, and that a majority (53%) think the “CIA treatment of suspects” (we’ll put aside how that euphemism for torture can be discussed by everyone while fewer than half believe in “torture”) produced information not obtainable otherwise.

There are two clouds on the horizon, in that rosy view. One is that the public’s opinion hinges on a judgment that the CIA’s intelligence could only have been obtained by means of torture. The second is that a majority (54%) also think the CIA intentionally misled the president, the Congress, and the public about its activities. Our rosy-eyed spooks would argue that an equal percentage of those polled think the deception was either unintentional or justified. But if you discover the information was obtainable by standard means of interrogation, the majority flips on whether CIA’s deceptions were intentional—and the likelihood is that opinion would also shift on what constitutes “torture.”

The problem with those poll measures is secrecy. That is, the CIA—which currently holds responsibility for declassification of secret documents in this area—used its deletions from the Senate report to obfuscate the question of whether the intelligence gathered was, in fact, otherwise unobtainable. Meanwhile the agency crafted a rebuttal to the Senate report which argued the necessity—and there, too, CIA used deletions as a way to strengthen its argument. Then CIA director John Brennan held a press conference to insist it is “unknowable” if the intelligence could have been gleaned another way.

This is a ploy worthy of P. T. Barnum. Make it impossible for the public to read the full evidence, argue (based on the evidence the public cannot see) that torture produced the key intel, then say it’s impossible to know if it didn’t.

Elsewhere I have addressed the CIA’s illegitimate use of the concept of what is “knowable” in intelligence analysis. Now, it turns out that in crafting their P. T. Barnun scenario, the CIA and its former employees manipulated the secrecy regulations themselves.

The website of the former CIA officers contains documents designed to prove their contentions about the CIA torture program. Among them are ones that must have been requested by the officers themselves. The documents include the first papers in the public domain that link the Bush White House to the torture program (the National Security Archive website will display this White House-centered evidence, a smaller selection will be available on my own website), including records of national security meetings, memoranda from CIA director George Tenet to national security adviser Condoleezza Rice, talking points for Tenet at the White House, and CIA briefing slides on the torture program. Many of these documents were declassified in September 2014—long enough in advance for agency defenders to analyze and mark up the documents and write papers utilizing their contents.

This is not a trivial matter. The way the declassification system works, any request for release of a document is supposed to be handled in the order received, and to take its place in a queue of FOIA and other requests. The CIA documents cited above were requested based on agency officers’ insider knowledge of CIA records, then processed and declassified much more quickly and in a more robust fashion than available to the general public. For example, one of the Tenet-Rice memos is the same document the ACLU tried to get released—and they had to go to court and pursue litigation to get it. They received a version that was mostly blacked-out excisions, where the former CIA officers obtained practically the complete text. More than that, these records fall into a category the CIA has taken to calling “predecisional.” This is the very exemption the agency is using to deny release of the “Panetta report” in this controversy, and the same one the CIA continues to rely upon to refuse to declassify documents as old as a history of the Bay of Pigs operation. Yet here we are dealing with CIA records as recent as 2003-2004. Worse than that, the Senate intelligence committee and the American people were kept waiting for declassification of the SSCI report while the CIA hastened to open up these top secret records to its former officers for their project to discredit the Senate report.

The Freedom of Information Act (FOIA) contains statutory language that provides for agency officials to be disciplined for “arbitrary and capricious denial” of information. This provision has long been held in abeyance. The excesses here beg for the application of the law. The CIA has behaved as if the declassification rules were anything it wants—I furnished a good deal of evidence of this in my book The Family Jewels. But CIA’s behavior in the torture scandal displays its absolute contempt for FOIA, indeed for all secrecy restrictions, meets the statutory standard for “arbitrary and capricious,” and shows the agency’s determination to win by manipulation what it could not gain on the merits. The routine regulatory work of the branches of government becomes impossible if line agencies behave the way CIA has done here. Horrible as is the substance of the torture scandal, the CIA problem has become bigger than that.