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Legal View with Ashleigh Banfield

Reaction to Release of Torture Report

Aired December 09, 2014 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

SEN. JOHN MCCAIN, R-ARIZONA: What did they cost us? The American people need the answers to these questions. Yes, some things must be kept from public disclosure to protect clandestine operations, sources and methods, but not the answers to these questions.

By providing them, the Committee has empowered the American people to come to their own decisions about whether we should have employed such practices in the past and whether we should consider permitting them in the future. This report strengthens self-government and, ultimately, I believe, America's security and stature in the world. I thank the Committee for that valuable public service.

I have long believed some of these practices amounted to torture, as a reasonable person would define it, especially, but not only the practice of waterboarding, which is a mock execution and an exquisite form of torture. Its use was shameful and unnecessary; and, contrary to assertions made by some of its defenders and as the Committee's report makes clear, it produced little useful intelligence to help us track down the perpetrators of 9/11 or prevent new attacks and atrocities.

I know from personal experience that the abuse of prisoners will produce more bad than good intelligence. I know that victims of torture will offer intentionally misleading information if they think their captors will believe it. I know they will say whatever they think their torturers want them to say if they believe it will stop their suffering. Most of all, I know the use of torture compromises that which most distinguishes us from our enemies, our belief that all people, even captured enemies, possess basic human rights, which are protected by international conventions the United States not only joined, but for the most part authored.

I know, too, that bad things happen in war. I know in war good people can feel obliged for good reasons to do things they would normally object to and recoil from.

I understand the reasons that governed the decision to resort to these interrogation methods, and I know that those who approved them and those who used them were dedicated to securing justice for the victims of terrorist attacks and to protecting Americans from further harm. I know their responsibilities were grave and urgent, and the strain of their duty was onerous.

I respect their dedication and appreciate their dilemma. But I dispute wholeheartedly that it was right for them to use these methods, which this report makes clear were neither in the best interests of justice nor our security nor the ideals we have sacrificed so much blood and treasure to defend.

The knowledge of torture's dubious efficacy and my moral objections to the abuse of prisoners motivated my sponsorship of the Detainee Treatment Act of 2005, which prohibits "cruel, inhuman or degrading treatment" of captured combatants, whether they wear a nation's uniform or not, and which passed the Senate by a vote of 90-9.

Subsequently, I successfully offered amendments to the Military Commissions Act of 2006, which, among other things, prevented the attempt to weaken Common Article 3 of the Geneva Conventions, and broadened definitions in the War Crimes Act to make the future use of waterboarding and other "enhanced interrogation techniques" punishable as war crimes.

There was considerable misinformation disseminated then about what was and wasn't achieved using these methods in an effort to discourage support for the legislation. There was a good amount of misinformation used in 2011 to credit the use of these methods with the death of Osama bin Laden. And there is, I fear, misinformation being used today to prevent the release of this report, disputing its findings and warning about the security consequences of their public disclosure.

With the report release, will the report's release cause outrage that leads to violence in some parts of the Muslim world? Yes, I suppose that's possible, perhaps likely. Sadly, violence needs little incentive in some quarters of the world today. But that doesn't mean we will be telling the world something it will be shocked to learn. The entire world already knows that we water-boarded prisoners. It knows we subjected prisoners to various other types of degrading treatment. It knows we used black sites, secret prisons. Those practices haven't been a secret for a decade.

Terrorists might use the report's re-identification of the practices as an excuse to attack Americans, but they hardly need an excuse for that. That has been their life's calling for a while now.

What might come as a surprise, not just to our enemies, but to many Americans, is how little these practices did to aid our efforts to bring 9/11 culprits to justice and to find and prevent terrorist attacks today and tomorrow. That could be a real surprise, since it contradicts the many assurances provided by intelligence officials on the record and in private that enhanced interrogation techniques were indispensable in the war against terrorism. And I suspect the objection of those same officials to the release of this report is really focused on that disclosure -- torture's ineffectiveness -- because we gave up much in the expectation that torture would make us safer. Too much.

Obviously, we need intelligence to defeat our enemies, but we need reliable intelligence. Torture produces more misleading information than actionable intelligence. And what the advocates of harsh and cruel interrogation methods have never established is that we couldn't have gathered as good or more reliable intelligence from using humane methods. The most important lead we got in the search for bin Laden came from using conventional interrogation methods. I think it's an insult to the many intelligence officers who have acquired good intelligence without hurting or degrading prisoners to assert we can't win this war without such methods. Yes, we can and we will.

But in the end, torture's failure to serve its intended purpose isn't the main reason to oppose its use. I have often said, and will always maintain, that this question isn't about our enemies; it's about us. It's about who we were, who we are and who we aspire to be. It's about how we represent ourselves to the world.

We have made our way in this often dangerous and cruel world, not by just strictly pursuing our geopolitical interests, but by exemplifying our political values, and influencing other nations to embrace them. When we fight to defend our security we fight also for an idea, not for a tribe or a twisted interpretation of an ancient religion or for a king, but for an idea that all men are endowed by the Creator with inalienable rights. How much safer the world would be if all nations believed the same. How much more dangerous it can become when we forget it ourselves even momentarily.

Our enemies act without conscience. We must not. This executive summary of the Committee's report makes clear that acting without conscience isn't necessary, it isn't even helpful, in winning this strange and long war we're fighting. We should be grateful to have that truth affirmed.

Now, let us reassert the contrary proposition: that is it essential to our success in this war that we ask those who fight it for us to remember at all times that they are defending a sacred ideal of how nations should be governed and conduct their relations with others -- even our enemies.

Those of us who give them this duty are obliged by history, by our nation's highest ideals and the many terrible sacrifices made to protect them, by our respect for human dignity to make clear we need not risk our national honor to prevail in this or any war. We need only remember in the worst of times, through the chaos and terror of war, when facing cruelty, suffering and loss, that we are always Americans, and different, stronger, and better than those who would destroy us.

Madam President, I yield the floor.

ASHLEIGH BANFIELD, CNN ANCHOR: The senator from Arizona making some incredibly poignant points. Himself, at torture survivor in Vietnam for five in half years in the hands of the Vietnamese reacting to the release of the Senate Intelligence Select Committee's report on torture along an exhaustive investigation of the CIA tactics under the Bush administration that were outlawed effectively by the Obama Administration.

Some very significant key things in the last hour if you've just been watching. I like to welcome our viewers from around the world and across United States. But significant findings in this intelligence report that the CIA's interrogation techniques were far more brutal than were lead on to government officials, and that were released to the public. Also that the program itself was grossly mismanaged, that they circumvented Congress and the White House in terms of effective of communication and also advising.

Not only that, but they under reported the number of detainees that they were subjecting to this harsh interrogation series of techniques, that 26 detainees were wrongfully held, didn't even meet the government's standards for detention. And that the CIA leaked classified information to journalist exaggerating the success of the interrogation methods, effectively suggesting that things were forwarded (ph) that operation may have been reported by the interrogation techniques when they effectively were not.

Not only that, but they were unprepared as they began the operation that the techniques many of them had never been approved, and that they ignored numerous critiques internally and objections as well.

I want to bring in Fareed Zakaia as well, host of Fareed Zakaia GPS, something that Senator McCain just said from the floor.

First of all, he commended his democratic colleague and her colleagues. This was a very political process, the Republicans have effectively withdrawn from a lot of this process. But he said, "This is about who we are, who we aspire to be and how we represent ourselves in the world." And this is critique today. Do we want to rehash old wounds and subject people who are American posted all around the world, our military, our diplomatic core to dangers by bringing this all up, is there a bigger downside to the upside of the transparency?

FAREED ZAKARIA, CNN HOST, FAREED ZAKARIA GPS: I think McCain very effectively answered the specific question of the danger. Terrorist don't need excuses to go around plotting attacks on Americans. That's were they doing. That's what they're doing full time. They are looking for some shred of the evidence. They've already committed themselves to a lives work of terrorism against the U.S.

So, they don't need an excuse. I think that the United States comes out of these kinds of events stronger. The United States looks like a stronger country when it admits that the deportation and interment of Japanese-Americans was a mistake. The United States came out stronger when revealed in the 1970s that the CIA had engaged in a number of rogue operations, you know, through the Church Committee. Very few other countries would no -- Putin's Russia is never going to do this.

The United States I think is admired. I was growing up in India when those Church Committee revelations were coming out. And I remember the general reaction was one of enormous admiration of a country that would expose its own problem, its flaws, hold itself to a high standard.

So, I don't think that that's -- I think that this is the case where only the United States would do something this exhaustive and be...

BANFIELD: This self-analytical... ZAKARIA: Right. Exactly. The -- introspective because he wants to hold itself to high standard, because it wants to tell its people what was going. And most importantly, through that kind of introspection and self-criticism, you get better public policy. You get a better CIA. You get better and more effective methods.

This is not just an exercise in moral philosophy, you've got to get this right, you've got to make sure you do this right. And the only way to do that is to accept the way you made the mistakes.

BANFIELD: Yes. It maybe too early to suggest that this is worth much, but for the record, there is little reaction right now on the Jihadist websites all around the world, the forums to the torture report. But it seems like there's just little interest on these forums. We're being told that the retaliatory attacks that is a concern, still could come in days rather than hours. So, initial reaction kind of ho-hum?

ZAKARIA: One point make...

BANFIELD: Yes.

ZAKARIA: ... briefly. This is John McCain's finest hour. This is the kind of thing McCain does so well. He is conservative Republican. And yet on an issue of principle, he didn't mind taking the position he thought was in the national interest rather than his party's political interest.

BANFIELD: He's really respected by both parties as well. Fareed Zakaria, host of GPS, I'm sure you going to do a lot of this on your program this weekend as well. Thank you so much as always for your analysis.

There's also that nagging question, just what does that mean though? When you start naming names and actually listing out operations, and then giving a government admission to things that happened, is there a critical legal issue? Could there be prosecution? Could people actually be taken to task (ph)? What about the possibility of legal accountability for this?

Americans prosecuted for what American just said we've done. You're going to hear about all of that after the break.

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BANFIELD: We're continuing our breaking news here at CNN. And I want to welcome our viewers from United States and around the world as we continue to listen to some of the details that are being released today from the Senate Intelligence Select Committee on torture.

It has been along and exhaustive report into the CIA's torture techniques that were used before the Obama Administration officially ended to use of those. But the scaving (ph)revelations today perhaps more significantly that it was far more brutal than reported originally and that there were a lot of efforts to circumvent oversight and to report the top officials exactly what was happening within that program.

The President for his part has already reacted to the release of this report. I want to read for you what President Obama has said in part, "Today's report details one element of our nation's response to 9/11. The CIA's detention and interrogation program which I formally ended on one of my first days in office. The report reinforces my long held view that these harsh methods were not only inconsistent with our values as a nation, they did not serve our broader counterterrorism efforts or our national security interest."

"Moreover, these techniques did significant damage to America's standing in the world and made it harder to pursue our interest with allies and partners. That is why I will continue to continue to use my authority as President to make sure we never resort to those methods again."

I want to bring in CNN's Justice Correspondent Evan Perez who's been following carefully much of the detail because, Evan when we talk about law so much of the devils in the detail. And when I heard details like depriving detainees, at least in one case, of sleep for seven and a half days, for chaining men with their arms over their heads naked, one of them dying from hypothermia in custody.

And from the threat of death and the threat of sexual abuse of their family members, that's new information, that's brutal information and it makes me wonder if the Justice Department is crafting a potential prosecution of those who were involved or who may have gone outside of the guidelines they were given.

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Ashleigh, the answer -- the short answer is no. This is something that has been looked at. It's been looked at under the Bush Administration. The previous Attorney General Michael Mukasey first appointed an outside prosecutor to take a look at the CIA's destruction of tapes of these interrogations because the question was whether the CIA had destroyed evidence, that came back as no prosecution.

Attorney General Eric Holder at the beginning of this tenure began a similar thing. He asked the same prosecutor, John Durham, out of Connecticut to take a look at this -- the exact -- what the Senate report is looking at, 6 million pages plus of documents. And he arrived at a conclusion that there was no prosecutable crime.

And I have - from the Justice Department, the following that, you know, "We believe our team of agents and prosecutors work tirelessly to conduct an extraordinarily thorough and complete review of material." And, "It stands by its decision not initiate criminal charges," Ashleigh. And, you know, one thing that I think the Justice Department wants to make clear in their response is that they're not making a judgment about whether or not this was appropriate, whether this was right, whether this was moral.

The question is whether or not, you can prosecute anyone here with any charges that show that they intended to kill anybody, harm anybody, violate the law and the answer is no. BANFIELD: Evan, if you could stand by for a moment, I also want to bring in a couple of people who know a lot about the law and the fallout with regard to what this might mean overseas, certainly our military members, our diplomatic core overseas. CNN's Military Analyst and retired Air Force Lt. Col. Rick Francona joins me live. And also with us, Jonathan Turley, a constitutional scholar and law professor at George Washington University.

John Turley, I want to go to you first, as I hold up a number -- I mean look at the size of this report and this is just the executive summary. There are virtually thousands upon thousands of pages of -- and I'm just going to say it, admissions by the United States government that things we did were very, very wrong.

It's one thing to say, John that they're very, very wrong. And it's another to say that they're actionable. So I'm going to ask you, if anybody went outside the bounds of what the American said was OK at the time. Or, is there anything internationally that might apply to what we're seeing reported to day.

JOHN TURLEY, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL PROFESSOR: Well, make no mistake about it. And what Senators Feinstein and McCain described are crimes. It's a criminal enterprise which was described not only in the violation of international domestic laws which we all knew about in the running of a torture program, but equally unsettling was the determent effort. It's a high depth program including what both senators describe is false information being given to them by former directors of the CIA, the general council of the CIA.

Some of the most disturbing new facts that came out of this presentation is the extent to which the CIA went to, to not only hide the program but to mislead Congress, that's a crime. People are prosecuted for those types of crimes all the time.

And what remains the disconnect is the fact that no one has been charged. Senator Feinstein talked about how the tapes in control of the CIA were destroyed soon after the legality of this program was raised. This wasn't just a couple of tapes, these were dozens of tapes that were destroyed. And the CIA supposedly admitted that it was destroyed because CIA officials feared it could be used as evidence against them in a conventional criminal case, that's a very simple and straightforward crime.

And so a lot of the criticism that's likely to come after this report is going to be directed at people like Attorney General Holder and the Administration. The actual investigation by Durham was cited by Feinstein is being used by the Administration, specifically the CIA to keep...

BANFIELD: Yes.

TURLEY: ... people from answering their questions.

BANFIELD: So a lot of that it mean - just not even just on its surface is uncomfortable but deep down, it's uncomfortable. I have a minute left and Col. Francona, I need you to respond, it's not loss on anyone that one of the most significant and highly respected American military veterans have the state in review of what this report says, John McCain.

But we have current troops serving overseas, is there grave concern given what was reported today for those people?

RICK FRANCONA, U.S. AIR FORCE, RETIRED: Yes. There's a lot of concern although as he said, these people do not need an excuse to go after Americans, it's what they do. This may inflame people in certain corners, it may drive up the recruiting effort for ISIS and other organization say see what the Americans are about. We've got to stop this evil, that could happen.

I think one of the key things here is like people are going to take this as the condemnation of the Central Intelligence Agency because there's not one positive thing in that report.

BANFIELD: Yes.

FRANCONA: This is 20 findings all bad. Certainly, there was something in that program that must have been done right, it seems like every single thing was done wrong. So it's almost like they're piling on. And I think there's going to be not just pushback inside the intelligence committee but inside many members of the military as well, because we were involved in much of this. And I'm just - I'm very concerned that there's going to be much more fallout from this.

BANFIELD: And I have to cut it there. But Col. Francona as always, thank you, Jonathan Turley, your expertise is invaluable. Thank you to both of you. And thank you for watching everyone. Wolf starts right after this quick break.

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