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Jameel Jaffer: See No Evil

Jameel Jaffer,
Director, Knight First Amendment Institute
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May 22, 2008

The report issued Tuesday by Glenn A. Fine, the Justice Department’s Inspector General, is overflowing with new information about the development and implementation of the Bush administration’s torture policies. The report’s most important finding is that some of the administration’s senior officials — possibly including Condoleezza Rice, who was then the National Security Advisor — knew as early as 2002 that FBI agents and some Justice Department personnel believed that interrogation methods being used by the Defense Department were not just ineffective but also illegal.

Torture and America

The report makes clear that the CIA, too, knew that the interrogation methods it was using were of dubious legality. In early 2002 — before the Office of Legal Counsel supplied the CIA with a memo sanctioning the use of harsh methods — an FBI agent told CIA personnel that the methods being used against one prisoner were “borderline torture.”

In the story told by the Inspector General, the FBI comes off relatively well. While the Defense Department and CIA were authorizing their interrogators to use torture, FBI agents were documenting the harsh techniques being used by their military counterparts, refusing to participate in interrogations that were abusive, and in some cases conveying their concerns about abusive interrogations to their superiors and military commanders. (Amrit Singh and I have written at length about all of this in a recent book, Administration of Torture.) The Inspector General’s report, though, raises serious questions about the actions that FBI headquarters took — or, more significantly, failed to take — in response to the concerns being raised by FBI agents.

The key question, I think, is why the FBI — which is, after all, supposed to be the nation’s principal law enforcement agency — didn’t try to end the abusive interrogations being conducted by other agencies. FBI agents concluded in 2002 that interrogation methods being used by the Defense Department and CIA were illegal. Indeed, some agents collected their notes about abusive interrogations in a “war crimes” file. But when agents at Guantánamo documented abuse in 2002, the agency waited six full months before giving the agents permission to finalize and distribute their memo. (According to a footnote in the report, the FBI’s leadership was afraid that distributing the memo would offend the military.)

At some point in 2003, FBI agents were affirmatively told not to maintain the “war crimes” file; they were told that “investigating detainee allegations of abuse was not the FBI’s mission.” And the agency waited until May 2004 — a month after the publication of the Abu Ghraib photographs — to issue written guidance requiring FBI agents to report abuse. Even after the FBI issued written guidance, the agents were told not to question the expansive authority that other agencies’ interrogators had been given; they were told instead to report incidents in which other agencies’ interrogators had exceeded their authority. They were told, in other words, to ignore criminal activity that they ought to have been trying to stop.

Overall, the FBI’s leadership seems to have been more interested in ensuring that the agency would not be held responsible for the abuse of prisoners than in actually ending — or even documenting — the abuse. FBI agents who raised concerns about the lawfulness and effectiveness of abusive interrogation methods deserve credit. The FBI’s leadership, on the other hand, should be held accountable for having turned a blind eye to torture.

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