Before You Watch the Oscars This Weekend

by Deborah Pearlstein

Read Ali Soufan’s op-ed about Zero Dark Thirty today in the New York Times. If you’ve read Ali’s gripping book, his take won’t surprise you. As he puts it: “I watched ‘Zero Dark Thirty’ not as a former F.B.I. special agent who spent a decade chasing, interrogating and prosecuting top members of Al Qaeda but as someone who enjoys Hollywood movies. As a movie, I enjoyed it. As history, it’s bunk.”

Ali goes on to talk about how what the film says is not an accurate account of what actually was. And I’ve written before about what I regret the film leaves out of the torture story it tells. But I was especially struck at Cardozo’s panel discussion of the film last week by what else has been missing from the public torture debate. Namely, the possibility that anyone involved in authorizing any aspect of the program might publicly express any kind of regret about the decision to pursue it. In that regard, I found the concluding remarks of former CIA General Counsel John Rizzo – CIA’s top lawyer from 2001-2009 – striking. I played the internal video from the event back and copied them down verbatim.

“You know, in many ways, I wish we’d never started down this road – the interrogation program. It is certainly of all the controversies I was involved in during the course of my CIA career this was by far the most portentous. And as time went on and the controversy grew, there were criminal investigations, careers were affected. It honestly didn’t do a lot for my career ultimately, and I became defined not for what I’d done for my previous 25 years but my actions in the post 9/11 era. So all of that. In many ways, I mean – the Agency would have been better off if we’d never gone down that road. But I would just repeat, in February, March 2002, the fear, the dread, especially in the city, about another attack, was all pervasive. There was a guy we had in custody. The experts, our experts, concluded he was holding back information about another attack. We could’ve, I could’ve, when those techniques were first proposed, basically say, ‘You guys are crazy, these are immoral, they’re going to get us into huge trouble, let’s just not do them.’ Now, had there been a second attack, and in that post mortem — I frankly — it would have been hard for me to countenance the possibility that Zubaydah knew about that second attack, we didn’t get the information out of him, and the reason we didn’t was because we decided we could not go forward with admittedly very aggressive, unprecedented procedures. And that’s what we did. That’s what I did.”

The event ended up drawing press coverage mostly for Rizzo’s separate remarks that he couldn’t recall CIA Director nominee John Brennan ever having expressed concerns to Rizzo about the morality of the Agency’s “enhanced interrogation” program, so that’s the only video clip posted so far. I’m told the rest of the video will be posted soon, and you can judge for yourself how you take these closing remarks in the context of the entire event. After the event, I heard varying reactions from the audience – a highly unscientific sampling of students, law professors, press, members of the general public described the totality of Rizzo’s remarks as everything from admirably candid and sympathetic to stunningly hypocritical.

There was, however, uniform agreement in one respect: he was riveting to hear speak. Perhaps it was the novelty of hearing anyone involved with the program at the time expressing, for whatever reason, some regret. Perhaps it was the novelty of hearing an official in or around the CIA speak with such seeming candor. Perhaps it was, still after all this time, the need to figure out what really happened – and why. The possibility seems well past that there will be criminal accountability in the United States for any of the actors involved in the program, not even for those who exceeded the scope of the staggeringly broad authority they had been given by the lawyers then in the Department of Justice (the agent Rizzo mentioned, for example, who exceeded the authority by threatening a detainee with a power drill to the head). But it is not too late to learn about, and learn from, the real story. That 6,000-page classified report the Senators who criticized the movie keep noting – it would be good for all of us to see. Not just to correct the record on what the film says. But to say all those things the film passes over in silence.

4 Responses

  1. Response…
    This is just one more admission of guilt (legal guilt, not merely moral guilt).  Also, the time period is telling. Z was reportedly captured on March 28, 2002 (Senate Intell. Comm. Rpt.).  In April, Gonzales approved unlawful tactics. In April Rizzo discussed such with Bellinger at NSC, who later briefed Rice and Gonzales (Senate Intell. Rpt.).  The two infamous Bybee (Yoo) memos were not written until Aug. 2002.  They can hardlay “authorize” manifest (or non-manifest)violations of international law.  See, e.g., United States v. Altstoetter.  There is universal jurisdiction over those who authorize, aid and abet, or perpetrate violations of the laws of war, the cAT, criimes gainst humanity (such as secret detention), etc. The ICC has jurisdiction over all such crimes that occurred partly within Afghanistan (because Afghanistan is a party to the Rome Statute, art. 12 is met, etc.).

  2. It has been since 2004 that I have heard people say that there will not be criminal liability for the actors – uniformly from Vladeck, Lederman. Cole, and Pearlstein not to mention Posner, Vermeule, Rivkin or the folks supposedly working on the inside like Goldsmith, Bellinger and Waxman. Zelikow’s warning are only post DTA of 2005.

    I saw Rizzo speak here at Toledo at our law review symposium in 2008 or so on military commissions and his take then was that be was responding to requests coming from below. He was a flashy dresser and exuded the confidence of someone who feared no prosecution.

    I see his presentations as further effort to keep America acquiescing in the torture. As is the intelligentsia’s willingness to not insist on prosecution. It use to be there were three really strong peremptory norms against genocide, slavery and torture. With a EIT torture program done in 54 countries at the behest of the USA along with the massive torture campaign on others than the high vie detainees, it is starting to appear that the legacy of the US international law and foreign relations law community will be to lessen torture as a peremptory norm. If you let them get away with it, then you lessen the norms power.

    Rizzo is smooth but his sales pitch is just that – the sales pitch of someone who should be a defendant or at least a witness for torture and – given the 20 people from CIA detention still unaccounted for per Globalizing Torture – possibly murder.

    We prosecuted soldiers. The issue is not prosecution but how high up we go. Stop chickening out intelligentsia.

  3. As you know Ben, those , like you, who are really interested in effectuating human rights and ending impunity for violations of international criminal law need to speak out and reaffirm general patterns of opinio juris even though some who teach international law do not, or worse.  We must oppose any effort to change the absolute jus cogens prohibition of torture, cruel treatment, inhumane treatment, and degrading treatment.
    Apparently there were some well-educated and “civilized” professional German military officers whose last years in service were forever marked by their contributions to the Holocaust, as it should be.  And there were probably some well-educated, well-dressed German lawyers in the Ministry of Justice and on the bench, etc. whose last years were forever marred by their contributions to the Holocaust.  “We must never forget”!
    There would be no problem with “complimentarity” before the ICC — and an ad hoc International Criminal Tribunal could also be created once there is a greater political will to actually end impunity for core crimes under international law.
    Crockodile tears for those who authorized, aiderd and abetted, joined a joint criminal enterprise, were derelict in duty.

  4. Jordan,
    Thanks for including me in this effort.  I want to help the people I name understand that this is not just some mindgame in academia, but something that has serious consequences for human rights worldwide.  It is not just an American game in our separation of powers fun.  This topic is deadly serious and apologists should help themselves to the opportunities that they have to see the import. 
    Ali Soufian gets it and got it for a long time.  As did the TJAG’s and Mora and Taft.  And others whose names we do not see on the circuit. 
    This whole thing is not about just feathering one’s nest, but has so many permutations and unintended consequences that denature too many aspects of state action.  Take the twists to the military commissions at Gitmo as just one example – all of them are twisted by the torture and the related effort to keep classified both legitimate and illegitimate government action.  It goes further with the denaturing of CIPA.  It goes further with efforts to have the military cleanup the mess caused by so many.  It goes further in the Congresspeople who betrayed their oath by going along with the torture.  It goes further with the evidence that was used to lie us into the War in Iraq through the torture of El-Fathri (Al-Libi). 
    We need to confront and address what was done in our names as ordinary Americans and set things right.  That is the sparkle of sovereignty we each have as ordinary citizen’s who insist on setting this situation right rather than allowing those who put it in place to obfuscate it all into oblivion in their relentless effort to avoid criminal liability. 
    And I prefer all this in our ordinary Federal courts so it has legitimacy for us Americans.

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