Sen. Sheldon Whitehouse (D-RI) opened a hearing on the Bush administration’s torture policy quoting Tallyrand: “The greatest danger in times of crisis comes from the zeal of those who are inexperienced.” Whitehouse promised to separate the “truth” from its “bodyguard of lies.” In doing so, the former federal prosecutor brought the shadowy world of intelligence into Room 226 of the Dirksen Senate Office Building. Former star FBI interrogator Ali Soufan, widely described as the bureau’s best and most effective interrogator working in the Arabic language, testified off-camera and behind a wooden partition. Concerned for his and his family’s security, he made the unusual demand a part of his agreement to appear and testify.
The effort to destroy the Zelikow memo is not just evidence of standard record-keeping practice; it may well spring from recognition that the memo might be used as evidence that the Bush administration was engaged in criminality.
The hearing produced two significant developments as well as a great deal of political rhetoric. Soufan’s testimony focused on the interrogation of Abu Zubaydah. Throughout the history of the torture debate, the Bush administration has cited this as a triumph of its techniques. Sen. Whitehouse read Bush’s September 6, 2006, White House statement making one of these claims. Soufan, who was personally present through the process, called the Bush claims a “half-truth,” accurate as to the circumstances of Abu Zubaydah’s capture and detention, but not as to the claimed successes using highly coercive techniques. One of the Justice Department’s torture memos (from May 2005) contained a similar claim that actionable intelligence was obtained “once enhanced techniques were employed.” Soufan termed this a lie. He also noted that successful interrogations of Khalid Sheikh Mohammed and Jose Padilla, which gained useful intelligence, occurred before the introduction of the Bush program and therefore couldn’t be claimed as success stories for it. In his remarks, Soufan sharply repudiated the harsh techniques he observed. “These techniques... are ineffective, slow, and unreliable and, as a result, harmful to our efforts to defeat al Qaeda," he said. He also downplayed claims that there was a dispute between the FBI and CIA about the use of the Bush techniques. CIA interrogators agreed with his assessment, he noted.
Philip Zelikow, a lawyer and history professor who had served as a counselor to Condoleezza Rice at the State Department, testified that the Justice Department had thwarted legislation sponsored by Sen. John McCain (R-AZ) that prohibited cruel, inhuman, and degrading techniques on detainees. He noted that McCain and other sponsors understood the legislation as a prohibition on waterboarding and other harsh techniques, but through legal sleight of hand, Steven Bradbury, then head of the Justice Department’s Office of Legal Counsel, had nevertheless found that the legislation was ineffective to make the expected changes. Zelikow recorded his opposition to this view in his own memo, which he disseminated widely within the Bush administration. It was made clear to him that his memo was not appreciated, and, moreover, an effort was made to collect and destroy copies of the memo. One copy has now been identified in the records of the State Department, he noted. Its declassification and release are anticipated shortly.
The story surrounding the efforts to corral and destroy the Zelikow memo is more than a curious vignette. Lawyers studying the issue of criminal liability of the memo writers are focused on evidence of mens rea—a state of mind that reflects recognition of criminal wrongdoing. The effort to destroy the memo is not just evidence of standard record-keeping practice; it may well spring from recognition that the memo might be used as evidence that the Bush administration was engaged in criminality.
Republicans called two legal experts to offer opinions but no fact witnesses. This raised the question of whether they have a CIA interrogator who is ready or willing to make a case to support Cheney’s claims about the efficacy of torture.
The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.
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