Officers could have cleaned up the discrepancies.

Photographer: Dennis Brack/Bloomberg

What the CIA Could Have Told Us

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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I argued in last week’s column that before passing final judgment on the rendition, detention and interrogation program operated by the Central Intelligence Agency in the early years of the war on terrorism, the majority staff of the Senate Select Committee on Intelligence should have interviewed CIA officers who were there. Readers have asked whether I really believe conversations would have made a difference. Yes, I do -- as long as the staff took seriously its responsibility to discover the truth.

Although many issues divide the Senate report and its supporters from the CIA and its defenders, perhaps none has been as bitterly contested as the question whether any valuable intelligence emerged from the program’s enhanced interrogations. Where these disagreements exist, interviews with CIA officers who were there, or who evaluated the raw intelligence, would have been particularly helpful.

The staff report identifies 20 instances in which the CIA insists that its interrogation program produced useful information. The report insists that in every single case, the agency is wrong. But the report rests entirely on the paper record -- cables, notes, e-mails and the like -- and most of the paper is susceptible to multiple interpretations.

The CIA, in its rebuttal, offers its own interpretation of the documentary record, and, in some cases, includes information that apparently wasn't available to the Senate committee staff. The differences in how to understand what agency officers put on paper helps illustrate how interviews would have helped the committee to produce a better report.

Let’s consider a single example, entirely representative of the sort of disputes that have arisen: the identification and capture of an al-Qaeda associate named Sajid Badat. Sajid Badat, a British national, was involved in the “shoe bomber” plot with Richard Reid, who tried to blow up an airliner in December 2001. Arrested at his home in Gloucester in November 2003, Sajid Badat confessed in open court that he, too, had been recruited to blow up a U.S.-bound aircraft, but had changed his mind.

The CIA has long maintained that the arrest relied upon evidence provided by Khalid Sheikh Mohammed, or KSM, after “enhanced interrogation” by agency officers. The Senate report calls this claim inaccurate. The CIA continues to insist that its assessment is correct.

What’s the source of the disagreement? Interpretation of the relevant documents. The staff report points to several indications in the CIA’s files that would seem to indicate that the U.K. security services, prior to the capture and interrogation of KSM, had warned the U.S. of an al-Qaeda operative “Issa” (an alias used by Sajid Badat), and had also delivered several warnings about a terrorist suspect named Sajid Badat. The CIA, in its response, insists that the staff has confused two different Issas, that much of the U.K. documentation dates from after, not before the interrogation of KSM, and that the references to Sajid Badat in the CIA’s files before KSM’s capture were simply one among many other names. Until KSM confessed, the agency says, it had no particular reason to focus scarce resources on Sajid Badat, and no way of tracking him down.

Now, maybe the agency is wrong. Maybe it’s just covering its backside. On the other hand, maybe the Senate staff is wrong. Maybe they’re trying too hard to prove their case. Maybe they’re engaging in hindsight bias, connecting the dots after the event and insisting that anyone could have connected them before.

The trouble is, it’s not just the arrest of Sajid Bajat that raises this problem. It’s almost every instance in which the report insists that no actionable intelligence was obtained. Faced with this conundrum -- differing plausible interpretations of the same documents -- along with the risk that the bare pages might mislead, any serious investigator would immediately see that the only way to figure out what actually happened is to talk to the people involved. They might lie. They might not remember. But they also might clear up the mystery; often, a conversation helps the investigator to see that there is no mystery to clear up.

The one approach that seems plainly wrong is simply to rest on the documentary record, with no effort to understand whether different interpretations of the same words might be plausible. Small wonder that former Democratic Senator Bob Kerrey, a longtime member of the intelligence committee, concluded that the staff “started out with the premise that the CIA was guilty and then worked to prove it.”

As any lawyer will tell you, the trouble with a paper record is the unruliness of words. As Kerrey pointed out, “Isolated emails, memos and transcripts can look much different when there is no context or perspective provided by those who sent, received or recorded them.” The only way for an investigator interested in the truth to find it is to take the time needed to seek an explanation.

The committee’s explanation, that it had no choice but to wait until the criminal investigation was completed, continues to puzzle. As I noted last week, the investigation was closed in 2012. There was plenty of time to talk to CIA officers after that. Instead, the majority insisted on its own artificial deadline -- and, as a result, produced a much-weakened final report.

  1. For the benefit of readers who don't want to struggle through every page of the report, the majority staff’s account of the arrest of Sajid Badat may be found beginning on Page 284.

  2. Similarly, the agency’s account of the arrest of Sajid Badat is located in the appendix, beginning on Page 15. The staff’s response to the CIA criticism is in several lengthy footnotes to the report.

  3. The CIA response as much as concedes the staff’s criticism of two of the agency’s claims: that detainee information helped thwart an attack on the U.S. consulate in Karachi, Pakistan (see appendix, Page 6), and that detainee information led to the investigation of Iyman Faris, a U.S. citizen who pleaded guilty to terrorism charges after alleged involvement in a plot to destroy the Brooklyn Bridge (see appendix, Page 13).

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Stephen L Carter at scarter01@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net