In a 2004 report that was made public on Monday, the CIA's inspector general noted that "a number of agency officers of various grade levels who are involved with detention and interrogation activities are concerned that they may at some future date be vulnerable to legal action." Depending on your view of the Bush administration's "enhanced interrogation techniques," this spontaneously expressed fear shows either that the officers knew they were breaking the law or that they worried they would be punished for policy decisions made by their superiors.
There is evidence to support both interpretations, which in the end are not mutually exclusive. Unfortunately, John Durham, the special prosecutor appointed by Attorney General Eric Holder to investigate the CIA's treatment of terrorism suspects, is not supposed to consider the culpability of higher-ups, Democrats as well as Republicans, who condoned abuse or turned a blind eye to it.
The worst example of mistreatment described in the report involved a CIA contractor who in 2003 beat an Afghan detainee to death with a metal flashlight. Because no autopsy was performed, the contractor could not be charged with homicide, but he was ultimately convicted of assault.
It seems clear that waterboarding, which involves both "severe physical or mental pain or suffering" and "the threat of imminent death," violates the federal ban on torture. But any prosecution of CIA officers for using the simulated drowning technique would be complicated by the fact that the Justice Department's Office of Legal Counsel claimed otherwise, relying on a strained, implausible reading of the statute.
The inspector general's report notes that waterboarding as practiced by the CIA went beyond the method approved by the Justice Department, involving larger amounts of water and many more applications (at least 83 for one detainee, 183 for another). But the CIA's general counsel said he received oral approval from Attorney General John Ashcroft for deviating from the original description.
Other methods mentioned in the report were never cleared with the Justice Department. By menacing a detainee with a handgun and a power drill, a CIA debriefer seems to have committed a felony, since the legal definition of torture includes "severe mental pain or suffering" caused by "the threat of imminent death." Likewise the interrogators who tried to elicit information through mock executions.
The law also forbids causing "severe mental pain or suffering" through "the threat that another person will imminently be subjected to death, severe physical pain or suffering." That provision seems to cover threatening to kill a detainee's children or leading him to believe that his mother, wife and/or daughter would be raped in front of him, as CIA interrogators allegedly did.
Another interrogator admitted to repeatedly pressing a prisoner's carotid artery until he was on the verge of unconsciousness. This interrogator "noted that he has ... years of experience debriefing and interviewing people and until recently had never been instructed how to conduct interrogations."
When he finally did receive instructions, he was told that waterboarding, slapping, wall slamming, painful "stress positions," sleep deprivation for up to 11 days and confinement in a small dark box (with or without insects) were perfectly legal. According to the CIA's general counsel, these methods were not only cleared by top Bush administration officials, but described to senior members of the House and Senate intelligence committees, none of whom objected.
In this permissive environment, it's not surprising that interrogators thought they had a green light to get creative with pressure points, power drills, stiff brushes, "hard takedowns," smoke, dousing and death threats.
"Ten years from now, we're going to be sorry we're doing this," one CIA officer told the inspector general's office, but "it has to be done." That is the attitude of conservatives who believe in the rule of law so strongly that they thought a president who lied about oral sex deserved impeachment for committing perjury yet think a president who allowed torture deserves praise for doing what was necessary.