Sen. Feinstein’s ongoing, secret torture probe is ostensibly only a 1-year "review" or "study." In reality, these proceedings are a functional equivalent of proposed public Congressional inquiries. The Feinstein probe covers the same substantive issues that would be investigated by Congressional probes that are still languishing in the debate stage. The Feinstein probe will review classified CIA documents and "interview" witnesses so that it can formulate US torture policy. CIA witnesses will be key to both the Feinstein probe and any Congressional hearings. Given the number of pressing issues and crises facing the US, will Congress be motivated to conduct a public investigation after Feinstein’s probe is completed? If not, then the Feinstein probe will be the only torture investigation but it will formulate US torture policy in secret and its report may never be released to the public. Moreover, if any Congressional probe provides immunity to witnesses, this can nix or alter the investigative scope and putative targets of subsequent special prosecutions. In short, some in DC have may have decided to implement the move-forward policy whether you like it or not.
Feinstein and the Senate Intelligence Committee are presently investigating Bush’s torture, rendition and imprisonment program to determine future US torture policies.
Feinstein likes to play down the importance and potential impact of her secret proceedings by spinning them as merely a "review" or "study". Yeah, this is just a boring study, not some interesting Congressional investigation that will determine key issues. However, this "study" will involve evidence in the form of documents and witness testimony to address the following issues that are similar to what would be covered in public hearings held by other proposed Congressional investigations. Feinstein’s intelligence committee’s press release lays out the 5 key issues to be probed and I have used parentheticals to show the same or similar issue that would be addressed in the Congressional hearings currently debated:
• (1) How the CIA created, operated, and maintained its detention and interrogation program (The CIA’s creation, operation and maintenance of the rendition, torture and imprisonment of suspected terrorists includes many issues, such as what other agencies were involved, and how did the CIA operate its network of secret prisons outside the US with independent contractors and airlines, like Jeppesen, to transport the suspected terrorists after kidnapping. It should be noted that there are many secrets Bush never told Congress, such as the locations of CIA secret prisons overseas. But, now, it is expected that Obama will provide congressional investigations with "new access to classified records as well as individuals who took part in operating the secret prisons and interrogating detainees.");
• (2) How CIA’s assessments that detainees possessed relevant information were made; (What is the definition of actionable intelligence and what legal standards govern when and how the US may "detain" suspected terrorists, and what are the facts regarding how Bush actually implemented the imprisonment of suspected terrorists?)
• (3) Whether the CIA accurately described the detention and interrogation program to other parts of the U.S. government, including the Office of Legal Counsel and the Senate Intelligence Committee; (In order to determine whether the CIA provided accurate descriptions to the WH, OLC, Congress and federal agencies, the standards and operational components of Bush’s "detention" and torture program must first be disclosed by testimony, documents, videos, or other evidence.)
• (4) Whether the CIA implemented the program in compliance with official guidance, including covert action findings, Office of Legal Counsel opinions, and CIA policy; (In order to determine compliance with official guidance, findings, opinions and policies, the documents that constitute the official guidance, findings, opinions and policies by all the agencies and participants must be disclosed. This means the DOJ torture memos and the bevy of memos written by other agencies, like the CIA, DOD etc on the issues of torture, rendition, application of domestic and international law and the internal investigations conducted by government agencies.)
• (5) An evaluation of intelligence information gained through the use of enhanced and standard interrogation techniques. (This issue includes evidence obtained by torture from the nearly 800 prisoners at Guantánamo as well as Bagram and CIA black sites as well as an understanding of all the torture methods used to determine which were "effective.")
In press reports, Feinstein added issue #6, stating that her investigation will address the torture methods used by Bush, or as she says, "will help bring to light some of the most horrific activities conducted under the past administration and help ensure that this country never goes down such a damaging and lawless path again." This is the heart of the proposed Congressional hearings to publicly disclose all the torture methods used by Bush.
Issue #5 is key to the Feinstein probe formulating what the US torture policy should be in the future. The Senate probe will evaluate whether torture produced actionable intelligence or "information that stopped terrorist attacks." The Senate investigation is assessing the"effectiveness" of torture and whether the CIA should again be granted the right to torture or "granted authority beyond the Army Field Manual."
Obama wants to know whether any of the harsh interrogation methods used against suspected terrorists held by the CIA should be retained.
After all that has happened in the name of Bush’s secret, shadow government, Feinstein’s secret probe will be formulating whether we should continue torture if it can produce actionable intelligence. While the Feinstein probe is deemed "bipartisan," that simply means that we have at least 2 Democratic adherents of the Jack Bauer view on torture:
Feinstein indicated that extreme cases might call for flexibility. "I think that you have to use the noncoercive standard to the greatest extent possible," she said, raising the possibility that an imminent terrorist threat might require special measures.
Fellow Democrat Ron Wyden also sits on the intelligence committee and is willing to "approve interrogation techniques that went beyond the Army Field Manual as long as they were ‘legal, humane and noncoercive.’"
It is troubling that Feinstein’s secret probe is now investigating the same issues that would be covered by subsequent possible public hearings, and that it appears that delay is the name of the game for any public hearings. Sen. Feingold wrote President Obama to thank his administration for not ruling out the "possible prosecutions of those responsible" for the torture program but urged President Obama to delay any prosecutions until after Feinstein’s probe is completed.
I urge your administration to wait to consider the findings of the Senate Select Committee on Intelligence's review of the program, and the Department of Justice's investigation, before making any decisions related to prosecutions of any persons involved in these interrogations.
Moreover, while Sen. Feingold supports the Leahy inquiry, this too should not occur until after Feinstein’s probe is completed to ensure there is no interference with her probe.
I continue to support the establishment of a commission, although I believe such an effort must not impede or delay the review of the Senate Intelligence Committee or any investigation by the Department of Justice, and that extreme caution be exercised in considering any grants of immunity.
When Obama "opened the door" to prosecution of Bush officials, Feinstein quickly wrote Obama urging that he "withhold public comments on prosecutions until her committee can finish an investigation of the interrogations. That inquiry is expected to take another six to eight months, she said." This is consistent with Obama’s preference last year to "not rule out future prosecutions," but delay to provide the time necessary to unearth the facts and defer any prosecuting decisions until a "second Obama presidential term, should there be one."
While Feingold’s statements may be a sincere reflection of his desire to establish a solid factual and evidentiary basis to guide subsequent Congressional hearings, delay in appointing a special prosecutor is not in our favor. One, given the lack of lawmakers’ willingness to investigate Bush et al for torture and war crimes, what is the likelihood that DC will be motivated to conduct two or more hearings covering the same issues? In fact, Feinstein was "less than enthusiastic when asked whether she support[ed] the creation of such a commission:"
"I probably will," she said with a sigh. "We’re doing our own work looking into that on the Intelligence Committee."
Two, the Feinstein secret probe will cover the same or similar issues as the proposed Congressional hearings that are still being debated. It’s no secret that the march toward appointing a special prosecutor or even the diluted proposed Congressional investigations is not welcomed by many in DC. There are so many additional important issues to be debated and resolved, such as the economic crisis, health care, global warming, etc. Will Congress and the public be convinced that additional hearings should be conducted after Feinstein concludes her 1-year "study"?
Three, the Feinstein probe may have limited value in terms of assisting subsequent Congressional probes because the evidence is classified such that she does not anticipate providing its report to the public. The Feinstein probe may uncover the names of key witnesses that are now unknown that could be called to testify at subsequent Congressional hearings. However, given the current climate of public support for investigations and prosecutions, what attorney would allow his CIA client to testify or "interview" in the Feinstein probe without immunity or other agreement/deal?
Momentum is now on the side of proceeding with the appointment of a special prosecutor. In the past, a special or independent prosecution or investigation has been conducted at the same time as Congressional investigations. In terms of deleterious impacts from immunity or other agreements with putative defendants, the important issue of timing is allowing the special prosecutor to precede Congressional hearings, not the other way around. A separate diary covers the issue of how immunity may nix or undermine not only subsequent Congressional investigations but also prosecutions.
