Ignoring Risks to National Security

By John Yoo

Wednesday, December 10, 2014

Yesterday’s release of a critical, one-sided report on the Bush-era interrogations of terrorist leaders will assume a place in the annals of congressional recklessness. Led by Senator Dianne Feinstein and conducted only by Democrats, the partisan investigation in the short term could provoke retaliation against Americans. In the longer term, it could reveal secrets to our terrorist enemies and dry up sources of cooperation with other countries.

But these effects will pale in comparison with the harm that Feinstein and her Democratic colleagues will do to our intelligence agencies. Their faithlessness will only discourage intelligence officers now, and in the future, to press the envelope to identify and stop future terrorist threats to the nation. We cannot blame CIA agents who will doubt the empty promises of support from politicians the next time that they are asked to risk their lives, fortunes, and sacred honor to keep our nation safe. Combined with the Obama administration’s disheartening lack of support for the intelligence community, congressional attacks will only harm our security while threats to the nation are on the rise.

On September 11, al-Qaeda killed 3,000 Americans in New York and Washington, D.C., with hijacked civilian airliners. In the wake of the attacks, the White House and congressional leaders unanimously demanded that the CIA adopt tough, aggressive measures to prevent any future attacks. The CIA did not go rogue. At politicians’ urging, it developed new tactics to fight a new kind of enemy. Al-Qaeda did not field regular armed units, hold territory, or control population. It violates the core principle of the civilized rules of warfare: It disguises its fighters as civilians, conceals its movements and communications within the operations of regular civilian society, and launches surprise attacks on the defenseless and innocent. The only way to prevail against this enemy is to gain intelligence on their plans in time to stop them.

Against all predictions, our intelligence agencies and armed forces have succeeded in keeping the homeland safe from major terrorist plots for the last 13 years. Instead of thanking them for this unprecedented success, Senate Democrats are launching attacks on our intelligence agents. The Feinstein report claims that when President Bush ordered aggressive interrogation methods, up to and including waterboarding, the CIA did not produce any unique, actionable intelligence. Worse yet, the CIA lied to the White House, the National Security Council, the Justice Department, and Congress about interrogations by exaggerating the gains in intelligence and downplaying the harms to al-Qaeda detainees. According to Senator Feinstein’s introduction to the report, the CIA “decided to initiate a program of indefinite secret detention and the use of brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values” for no reason.

These attacks on the intelligence agencies come from the very same politicians who urged the CIA to go on offense. In May 2002, Feinstein herself declared, “I have no question in my mind that had it not been for 9-11 — and I’d do anything if it hadn’t happened — that it would have been business as usual.” She made clear her understanding that the CIA would take unprecedented steps. “It took that attack, I think, to kind of shiver our timbers enough to let us know that the threat is profound, that we have to do some things that historically we have not wanted to do to protect ourselves.” In early 2003, Democratic senator Jay Rockefeller declared that Khalid Sheikh Mohammed, the mastermind of the 9-11 attacks, “will be grilled by us.” He went on: “I’m sure we’ll be proper with him, but I’m sure we’ll be very, very tough with him.”

Despite the claims in the Feinstein Report, intelligence officials kept Congress well informed about interrogation. Porter Goss, who was chair of the House Permanent Select Committee on Intelligence and then director of the CIA, declared that the leaders of the House and Senate intelligence committees “were briefed that the CIA was holding and interrogating high-value terrorists.” According to Goss, these leaders “understood what the CIA was doing,” and they extended bipartisan support and funding for the interrogation program. “I do not recall a single objection from my colleagues,” he tellingly observes.

At the time of the 9-11 attacks, I was a lawyer in the Justice Department’s Office of Legal Counsel, one of those who worked on the interrogation policy.  I don’t believe that the CIA lied to me or the other lawyers there, and the bias obvious in the report makes me doubt its claim that the CIA lied to the White House.

If it were not clear before, the Feinstein report shows that Democrats do not have the stomach for the tough policies necessary to prevail. Because they cannot deny their involvement, they must claim that the CIA lied. But Feinstein’s very conduct shows that her report’s claims cannot be trusted. Unlike other important congressional investigations into intelligence controversies, such as the 1975 Church and the 1987 Iran-Contra committees, this one included the participation of only one party — Democrats. Worse yet, Feinstein and her staff refused to interview the very officials at the CIA, the White House, and other agencies responsible for the interrogation program. This would be like trying a case in a courtroom without allowing anyone to call any witnesses.

Not only does this give the accused no chance to respond, it also yields a biased investigation open to partisan manipulation. Feinstein’s report, for example, makes a fundamental mistake on whether interrogations led the U.S. to Osama bin Laden — perhaps the most important test for the policy. At the time of bin Laden’s death at the hands of U.S. special forces, CIA directors claimed that Khalid Sheikh Mohamed and other al-Qaeda leaders had given up the courier who led us to bin Laden’s hideout. Feinstein’s report responds that the CIA had already learned the name and characteristics of the courier from other sources. But Feinstein cannot show that the U.S. would have distinguished the courier from the hundreds of other al-Qaeda operatives. Only the tough interrogation methods forced KSM and others to identify him as the critical link to bin Laden. If the Feinstein report got the biggest coup for U.S. intelligence in the war on terror so badly wrong, we cannot trust its other conclusions, either.

Those far removed from Washington, D.C., might dismiss all of this as inside-the-Beltway maneuvering. Or they might say that any public revelations, no matter how skewed, convey a benefit. But we should not ignore the harm that the Feinstein report, part of a broader Democratic hostility toward the intelligence community, is inflicting on those we ask to protect our nation. President Obama publicly rejected the Bush anti-terrorism framework in his first days in office. He proclaimed the interrogation program to be “torture” before even reviewing the intelligence, he pulled out troops and intelligence assets from Afghanistan and Iraq, and he sent prosecutors to reinvestigate CIA agents even though the Justice Department had already cleared them.

Aided by its congressional supporters and the anti-war base of the Democratic party, the Obama administration is hollowing out our intelligence agencies. One way to understand what has happened to our intelligence agencies over the last six years is to consider investment and spending. In the years after the 9-11 attacks, the Bush administration went to new lengths, such as tougher interrogations and broader electronic surveillance, to build up the stock of intelligence on al-Qaeda. Without that intelligence, the U.S. cannot successfully field its special-operations units and drone fleets to good effect. For the last six years, the Obama administration has achieved some successes — most notably the killing of bin Laden. But it ended interrogations and halted the capture of al-Qaeda leaders, preferring to kill them instead. While maybe more immediately satisfying, deadly drone strikes only use up intelligence but cannot replenish it.

We are now suffering the consequences. Contrary to President Obama’s claims during his 2012 reelection campaign, threats to national security are rising. Al-Qaeda-linked ISIS has achieved one of our greatest security nightmares: a fundamentalist terrorist group in control of broad swaths of territory, population, and resources in Iraq and Syria. ISIS has made clear its desire to attack the U.S. and our allies, and it regularly beheads American hostages on video.

Judging ISIS to be a junior-varsity terrorist group, as Obama foolishly did last year, only came on the heels of other intelligence failures. Our agencies missed the deadly attacks on the Benghazi embassy, they saw no warning signs of the Russian invasion of Ukraine, and they continue to misjudge Iranian intentions and advances in its nuclear-weapons program. Just as Jimmy Carter’s purging of the CIA led to the failures to foresee the Iranian Revolution and the Soviet invasion of Afghanistan, the disregard for the intelligence community by the Obama White House and Senate Democrats is putting our national security at greater and greater risk. It will take the election of a Republican to the White House again to restore the intelligence agencies and our proper place in the world.