Feinstein’s Secret Torture Probe May Nix Public Hearings

( – promoted by buhdydharma )

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. Moreover, the Feinstein probe will formulate US torture policy in secret without public knowledge or participation and a report from this probe may never be released to the public. 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 (How the CIA created its torture program, which includes the issue of what other agencies were involved, and how did the CIA operate its network of secret prisons outside the US, which includes the use of 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.'”  

Meanwhile, Sen. Leahy has had trouble obtaining support for his investigation that would be conducted in public hearings. In fact, Feinstein is “less than enthusiastic when asked whether she supports 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.”

Delay is the name of the game. Sen. Feingold wrote President Obama to thank his administration for discussing “possible prosecutions of those responsible” for the torture program but urged President Obama to delay any prosecutions until after Feinstein’s probe is completed. 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. 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.”

Thus, 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.  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? 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”?

Moreover, even if DC can gather the political will to prosecute Bush team, will prosecutions be legally feasible should Feinstein provide immunity or agreements to the CIA and other witnesses who may be “interviewed” by her committee? A separate diary covers the issue of how immunity may nix or undermine not only subsequent Congressional investigations but also prosecutions.  


Skip to comment form

  1. how many torture probes will DC conduct?

    • Edger on May 4, 2009 at 23:14

    it crosses my mind that perhaps it’s possible that delaying appointing a Special Prosecutor until Feinstein’s probe is complete and has amassed enough evidence to warrant prosecutions could be an unspoken agreement by Obama and Holder to avoid an SP effectively ending public disclosure by convening a Grand Jury immediately? I’m no lawyer so I’m just thinking out loud here…

  2. to look at what Feingold said in context. It seems to have been pretty widely misunderstood. And he’s one of the few people I tend to trust on these kinds of issues. From your link above:

    First, I welcomed your statement on Tuesday indicating that you had not ruled out prosecutions of those who authorized or provided legal justifications for the interrogations. As the OLC documents make clear, the details of this program were authorized at the highest levels, which is where the need for accountability is most acute. I hope that the Department of Justice will fully investigate this matter and determine whether such prosecutions are appropriate. Second, I urge you not to rule out prosecutions of those who implemented the program. While I understand your motivation to protect those who may have relied in good faith on OLC guidance, I believe that blanket assurances are premature. 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.

    Finally, in March, I expressed my support for the independent commission of inquiry proposed by Senate Judiciary Committee Chairman Leahy. If we are to ensure that this dark chapter in our history is never repeated, it is critical that the facts are provided to the public, a process you have begun with the declassification of the OLC memos. 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.

    I don’t hear him asking for delays. I do hear him asking Obama to reconsider his statements about not prosecuting “those who may have relied in good faith on OLC guidance.” He would like the president to revisit that policy after the Intelligence Committee and DOJ investigations are completed.

    And he’s stating support for Leahy’s Commission as long as it doesn’t impede the Intelligence Committee’s work or the DOJ investigation.

  3. the screen and we believe Congress still has some power when all their actions shriek the opposite. We live in a National Security state, Obama has quickly demonstrated that in his affirmation of our intention to permanently occupy Iraq ( 50,000 troops to remain, my ass!) and in his committment to Afghanistan. These are policy tenets of the national security apparatus. Obama and the Congress have done and will do nothing to reverse the civil liberties excesses that have been imposed. Wiretapping will be defended, torture will not be prosecuted, the military and the CIA will not be purged of the sycophants who carried out the orders in Guantanamo and Abu Ghraib. Obama and the Congress know better and know where they are not allowed to interfere.

    All Congress will do is “flap their collective gums!” Conyers, Nadler, and Wexler will “call” on the AG to appoint a special prosecutor with the same results they had with Mukasey. Dianne Feinstein will bottle up the investigation for at least a year while everyone will defer to her committee and refuse to interfere by having open investigations competing. The only way we will have our day in court will continue to be via the victories of the ACLU and similiar organizations, for that is where all the exposure has come from. Obama didn’t release the memos of his own desire any more than the Pentagon will release the additional terror photos of its volition. The people and the law are the only hope for justice, not those bought and paid for toadies in D.C.

  4. 1. We need to light a fire underneath the collective ass of the committee. Six to eight months? The way these people operate, one might conclude that they take two days to feed the fish. Justice can’t wait forever. OTOH: we do need to concede the committee time to do their jobs thoroughly. A couple/few (i.e. 2-4) months would be appropriate.

    2. The House and Senate Intelligence Committees are an appropriate venue for this. The member have access to top secret documents and interview witnesses privately and frankly. Whether these documents and hearings should be public is, IMHO, a separate argument.

    2a. That said, I urge Senator Feinstein to apply a very liberal standard in transparency on this issue.

    3. Conyers should continue his investigations into Bybee, Yoo, and the others. The Justice Committee has a slightly different jurisdiction. Conyers can investigate the lawyers and FBI agents while Feinstein investigates the actual conduct of CIA agents and the contractors (creepy, I know).

    4. I really hope that Feinstein and Wyden change their views on “flexibility” when all of the facts come out.

    5 Finally, we could use some more investigations. I wonder what the Armed Services Committees or Homeland Security Committees could unearth.  

  5. Secret Bilderberg dates


  6. It was an opinion, and not the view of the organization Amnesty International.  It’s here, but no need to go there, because the quote below is the opinion in full.  My emphasis:

    Let’s be clear, calls to allow the Senate Select Committee on Intelligence to conduct its own investigation into the abuses committed in secret CIA detention centers are little more than an attempt to play out the clock by freezing judicial investigations in until the 8 year statute of limitations on Anti-Torture Act crimes starts to render them moot from the spring of 2010 onwards.

    The Select Committee has had plenty of time to complete its own investigations.

    Indeed, senior members of the committee, including House Speaker Nancy Pelosi, were briefed on the adoption of new harsh interrogations as early as September 2002. Unlike their colleagues on the Senate Armed Services Committee they chose to look the other way. They have missed their chance, and in this arena it’s play or pass.

    I have developed an intense dislike of Feinstein.

  7. This is DiFi’s specialty.  She’s a past master (or Mistress) of appearing tough and fair in public before slipping behind the curtain of obscuration to CY(her)A and vote to implement the draconian ideas she has always championed.    

    But in an interview on Tuesday, Mrs. 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.

    She always comes out smelling like a rose with huge approval ratings because the poor peeps can’t see behind the gossamer draperies of her masterful subterfuge.

Comments have been disabled.