Author Archive for
Deborah Pearlstein

Keeping up with the Drones’

by Deborah Pearlstein

Internal debate inside the Administration must be heating up, because someone in D.C. is in a leaky mood. McClatchy yesterday released a story on U.S. targeting operations billed as the “first independent evaluation of internal U.S. intelligence accounting” of such operations. The report is based substantially on classified reports covering most (not all) of the drone strikes carried out by the intelligence community (as opposed to the Defense Department) in 2006-2008 and 2010-2011. Among the findings:

At least 265 of up to 482 people who the U.S. intelligence reports estimated the CIA killed during a 12-month period ending in September 2011 were not senior al Qaida leaders but instead were ‘assessed’ as Afghan, Pakistani and unknown extremists. Drones killed only six top al Qaida leaders in those months, according to news media accounts. Forty-three of 95 drone strikes reviewed for that period hit groups other than al Qaida, including the Haqqani Network, several Pakistani Taliban factions and the unidentified individuals described only as ‘foreign fighters’ or ‘other militants.’

The McClatchy piece contends that such statistics are necessarily at odds with Administration statements that its targeting operations were limited to senior leaders of Al Qaeda and allied groups. This seems wrong; I haven’t understood the Administration’s position to be that it would only target senior leadership. Indeed, that was part of the problem with the White Paper. It argued that targeting senior leaders was within the President’s authority, but it didn’t foreclose the possibility that others could also be targeted. The Paper spent a great deal of time gesturing at, if not quite committing to, legal theories that would support much broader targeting authority. In this respect, the leaked news, if accurate, confirms what should by now be the unsurprising conclusion that the White Paper did not describe the full scope of asserted U.S. targeting authority.

That said, the official details here are new and therefore important to untangle. We might fairly assume some of these strikes are the deeply problematic signature strikes we’ve known about – against ‘militants’ who may or may not pose a threat to the United States. But what about the named groups? Does the United States have the authority to target the groups it targeted in the Pakistan/Afghan border region – including the Haqqanis, the Pakistani Taliban, and Lashkar i Jhangvi? Start with domestic law. The Authorization for Use of Military Force (AUMF), giving the President the power to use force against those groups responsible for the attacks of 9/11, is an authorization for the use of military force. It’s not clear the AUMF empowers the CIA to do anything. In any case, as the article points out, there’s no suggestion that the groups named above were in fact responsible for the attacks of 9/11. So odds are slim that the AUMF is the relevant source of domestic authority. That leaves CIA’s authority under Title 50 of the U.S. Code to conduct covert operations, operations for which a presidential finding is required and which the U.S. wishes to be able publicly to deny. So perhaps there is a presidential finding (of course classified) that authorizes the use of force against a far broader range of groups than is covered by the AUMF. That would be news. One may well not think this a good idea (itself worth several separate posts), but provided the Administration is complying with the modest requirements of covert action (the finding, congressional notification, etc.), it would address the problem of domestic law.

That still leaves international law. Set aside for the moment my ongoing concerns (see, e.g., here, here) that CIA doesn’t especially think itself legally bound by these obligations. What is the international law justification for the U.S. to use force against these groups? At least as to Haqqani and Lashkar i Jhangvi, McClatchy’s report suggests those groups are responsible for attacks against U.S. forces in Afghanistan. If that’s true, the United States might well be justified in using force against those groups in self-defense, and compliant with domestic law as well, provided these groups were covered under the scope of whatever classified presidential finding exists. Put differently, and to be clear, at least some of these strikes against these groups might be legal.

That still leaves several puzzles. For one, how broad is the President’s covert action finding? Hard to imagine it’s one that gives the CIA has some general power to use force in self-defense on behalf of the United States. That would seem quite a bit beyond the scope of ordinary Title 50 authority, which forecloses the intelligence community from using covert action authority to conduct traditional military activities (as, one might imagine, would include the military’s power to defend itself against foreign attack). So more likely the finding named groups. Were the groups targeted actually on it? Then there’s the U.S. targeting of Pakistani Taliban, which McClatchy doesn’t indicate is behind attacks on U.S. forces. That may just be oversight, or lack of information on McClatchy’s part. Maybe the same self-defense rationale exists there, too. But the Pakistani Taliban wasn’t a publicly designated (at least) terrorist group until 2010, and as I understand it is mostly focused on overthrowing the Pakistani government itself. So if it’s not self-defense, what is the international law justification for targeting them?

The unattractive (and speculative) explanation is this. The President issued a broad finding authorizing the CIA to use lethal force against a set of terrorist groups larger than just those groups responsible for the attacks of 9/11 – including a bunch of Pakistan’s internal enemies. The CIA isn’t especially worried about whether its exercise of this authority globally complies with international law restrictions on the use of force. Or, more specifically, the CIA thinks as long as it has the foreign state’s consent, it can use force in that foreign state whether or not it has an independent basis – UN Security Council authorization or a self-defense justification notwithstanding. In other words, the CIA thinks as long it’s not violating Pakistani sovereignty (which consent addresses), there’s no other international legal bar preventing its actions.

Exactly because it would be far too easy for one state to have another state do its internal dirty work for it, that’s never been my understanding of the UN Charter Article 2/Article 51 universe in which we live. I suspect the CIA disagrees with me. As for international human rights law, like the International Covenant on Civil & Political Rights (the treaty the United States ratified that says, among other things, states can’t kill people arbitrarily), the U.S. has long taken the view that our treaty obligations under the ICCPR don’t restrict our actions outside the United States. And while the Obama Administration had made gestures in some settings that it was reconsidering that longstanding position, if this is really what we’re doing in Pakistan, I can see why it hasn’t actually taken the plunge. In the meantime, worst case from the above and all apart from the loopy signature strikes themselves, we’re killing people in Pakistan with whom we are not at war and who pose no threat (imminent or otherwise) to the United States.

ASIL on Targeting

by Deborah Pearlstein

As usual, the American Society of International Law conference in Washington, D.C. is filled with panels of interest and great off line conversations with friends and colleagues. Good to see many OJ’ers there. Among many other things, I wanted to highlight yesterday’s lively discussions on targeted killing, including a panel featuring Daniel Bethlehem, Marco Sassoli, Hina Shamsi and David Glazier – a wonderfully thoughtful group. I take it the panel was available via live stream so would expect it will be posted in recorded form at some point as well. For now, a few assorted notes (in no particular order).
(more…)

Counterterrorism in Court

by Deborah Pearlstein

Readers might be interested in this piece I’ve posted over at Foreign Policy with a co-author highlighting the virtues of the criminal courts as an essential tool in counterterrorism. Beyond the stats themselves – nearly 500 criminal cases related to international terrorism since 9/11, including 67 cases involving defendants captured overseas according to DOJ -I’d say the real significance of the piece is the co-author: Phil Carter, Obama’s first Deputy Assistant Secretary of Defense for Detainee Policy, who has faced the joys of trying to close Guantanamo firsthand. Here’s a snippet.

The debate about the role of military force in counterterrorism has crystallized recently with arguments for (and here in Foreign Policy, against) a revised, updated, and expanded Authorization for Use of Military Force, the law passed just days after 9/11 that provides the core legal basis for current U.S. counterterrorism operations. The case for a new AUMF builds from the premise that, while our foes may be changing, our need for military force to fight them is no different now than it was in the fall of 2001.

That is a flawed premise. As with the end of World War II or the end of the Cold War, we are at a historic inflection point. The war in Iraq is over, the war in Afghanistan is ending, and the United States and its allies have disrupted, dismantled, and degraded al Qaeda and many of its confederates. We now have a wealth of tools and capabilities to fight terrorism — tools that did not exist in 2001. The time has come for the United States to transition from its current war footing to a long-term, sustainable counterterrorism strategy. The Abu Ghaith, Harun, and Warsame cases, and the many like them, show we are ready.

Getting the CIA Out of the Drone Business

by Deborah Pearlstein

From Dan Klaidman of the publication formerly known as Newsweek, here’s what I’d call good news: “Three senior U.S. officials tell The Daily Beast that the White House is poised to sign off on a plan to shift the CIA’s lethal targeting program to the Defense Department.”

There’ve been hints in the press before that new CIA Director John Brennan in particular favored this approach, but this makes it sound as though it may soon become a reality. Why do I think it’s good news, at least on the relative scale of U.S. targeting operations? A combination of reasons, both legal and organizational, which tend to persuade me that Defense Department (DOD) targeting authority is better constrained than CIA. (more…)

AUMF 2.0

by Deborah Pearlstein

I hope soon to get more directly to the important news of the prosecution of former Al Qaeda spokesman Sulaiman Abu Ghaith in U.S. federal court in New York and much else of interest in our pages, but I didn’t want to let pass without comment the also important piece in the Washington Post this week that the Obama Administration is examining whether it should seek to extend the legal authorization for targeted killing operations beyond those groups currently identified by the 2001 Authorization for Use of Military Force (AUMF). Per The Post: “The debate has been driven by the emergence of groups in North Africa and the Middle East that may embrace aspects of al-Qaeda’s agenda but have no meaningful ties to its crumbling leadership base in Pakistan. Among them are the al-Nusra Front in Syria and Ansar al-Sharia, which was linked to the September attack on a U.S. diplomatic post in Benghazi, Libya. As the article rightly explains, these are “militant groups with little or no connection to the organization responsible for the attacks on Sept. 11, 2001.”

The AUMF has been the cornerstone of U.S. domestic authority to detain and target members of the Taliban, Al Qaeda and “associated forces,” but it is limited by its terms, by Administration interpretation, and by the courts to uses of force against these groups. As the U.S. prepares to leave Afghanistan and as the Al Qaeda that attacked the United States on 9/11 collapses, the AUMF is of decreasing import. More, as Steve Coll recently wrote, distinguishing the AUMF’s target groups from various violent Jihadi successor groups in Yemen, Mali and elsewhere: “A franchise is a business that typically operates under strict rules laid down by a parent corporation; to apply that label to Al Qaeda’s derivative groups today is false.”

So if the AUMF doesn’t authorize the use of force against the next generation of terrorist organization, what should we do? (more…)

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.

These Aren’t the Courts We’re Looking For

by Deborah Pearlstein

The N.Y. Times editorial page yesterday joined the growing chorus of folks in D.C. calling for Congress to create a new, executive branch court to review executive targeting decisions.

“Having the executive being the prosecutor, the judge, the jury and the executioner, all in one, is very contrary to the traditions and the laws of this country,” Senator Angus King Jr. of Maine said at the Brennan hearing. “If you’re planning a strike over a matter of days, weeks or months, there is an opportunity to at least go to some outside-of-the-executive-branch body, like the FISA Court, in a confidential and top-secret way, make the case that this American citizen is an enemy combatant.”

Mr. Brennan said the idea was worthy of discussion, adding that the Obama administration had “wrestled with this.” Two other senators, Dianne Feinstein of California, the chairwoman of the Intelligence Committee, and Ron Wyden of Oregon, also expressed interest. Even Robert Gates, a former C.I.A. director who was defense secretary under President George W. Bush and President Obama, said on CNN that such a judicial panel “would give the American people confidence” that a proper case had been made against an American citizen.

The speed with which this idea has gained currency in Washington has, I fear, less to do with its merits and more to do with the intense attractiveness of the notion that there might be a neat procedural solution to a messy substantive problem. Alas, I don’t think it works that way. Here’s my thinking. (more…)

Obama Orders Classified OLC Memo Released to Congressional Intelligence Committees

by Deborah Pearlstein

According to NPR:

President Obama directed the Justice Department late Wednesday to give Congress access to classified information that details the rationale for targeted strikes against U.S. citizens believed to have links to al-Qaida. NPR’s Carrie Johnson is reporting on the story for our Newscast Unit. She says the decision comes after Senators threatened to hold up nominees for the CIA and Pentagon. Here’s more from her report:

“An administration official says the president personally made the decision to give lawmakers on the house and Senate intelligence committees a chance to review the memo. The classified document provides a legal justification for killing U.S. citizens who have become senior operatives in al-Qaida. A U.S. drone killed radical cleric Anwar al-Awlaki, a U.S. citizen in Yemen in September 2011. Senators said they wanted to see the basis for that action before they would approve a new CIA director. The administration official says the release is extraordinary and does not set a precedent.”

The decision to grant access to lawmakers comes a day before John Brennan, Obama’s pick to head the CIA, faces the Senate Intelligence Committee for his confirmation hearing.

Note that if the full memo is still classified, and no redacted version is available, it may yet be some time before the memo sees the light of day. Nonetheless, this is surely a step in the right direction.

White Paper

by Deborah Pearlstein

I set out to begin to untangle the strings of argument in the DOJ white paper, and find myself, after three pages of writing notes myself, having untangled only as far as the paper’s page 5 (of 16). There is something wrong with a memo like this. Let me see if I can explain why.

The white paper says that it intends to set forth “a legal framework for considering” when the U.S. government can “use lethal force in a foreign country outside the area of active hostilities against a U.S. citizen who is a senior operational leader of al-Qa’ida or an associated force if al-Qa’ida – that is, an al-Qa’ida leader actively engaged in planning operations to kill Americans.” While the paper disclaims any intention of establishing the “minimum requirements necessary” to make such a killing lawful, I take it to be an explanation for how such an operation is both authorized by domestic law, and in compliance with the various provisions of domestic and international law that regulate the use of force. It is the closest thing we have seen – and perhaps the closest thing that exists – to a detailed argument for why such a practice is legal.

So let’s start where the paper starts, more or less, with the domestic source of authority on which the administration relies for the use of lethal force it describes. The paper points to two sources of domestic law and suggests the operation is authorized either by the Constitution itself or the statutory Authorization for Use of Military Force (AUMF). So which one is it in the highly specific context here – statute or Constitution? The paper never commits. But which one it is matters enormously. It is, in a sense, what matters most. Pull out the argument threads. What law does the paper mean to reference by invoking as a source of authority the “President’s constitutional responsibility to protect the nation” (pp. 1, 2)? I infer from this description the authors mean to reference the President’s power under Article II, though I could find no citation to that provision. In particular I imagine this is some reference to the President’s power to, as the framers put it, “repel sudden attacks.” In such limited form – i.e. as a defensive use of force – it is a principle that has been recognized in various ways back to the Civil War era Prize Cases (though I find no citation to those authorities either). Does the paper contemplate that this Article II power alone – without further congressional authorization – would be sufficient as a matter of domestic law to authorize the use of lethal force against any senior operational leader of al-Qa’ida or an associated force actively engaged in planning operations to kill Americans? If the Article II power so conceived includes lethal force in those circumstances, mustn’t it also include the authority to employ lesser forms of force, like detention, against those figures, without further congressional authorization? Given the Administration’s insistent reliance on statutory, and not purely constitutional, authority to support the legality of ongoing detention of folks like KSM, it is hard to imagine the paper here is really intended as a full throated embrace of that claim.

So maybe the paper means to limit the scope of the “President’s constitutional responsibility to protect the nation” in some other way…

More on Zero Dark Thirty

by Deborah Pearlstein

For those following the ongoing public controversy surrounding the film’s depiction of the hunt for bin Laden, two notes. First, the conservative thinktank the American Enterprise Institute hosted a forum on the film featuring three of the former CIA officials centrally involved at the policy level in the “enhanced interrogation” program: former General Counsel John Rizzo, former CIA director Michael Hayden, and former head of the CIA’s National Clandestine Service, Jose Rodriguez. Will Saletan has a summary of the proceedings (and a link to the video) over at Slate. Second, for the New Yorkers among you, Cardozo Law School is hosting a panel discussion of the film on Feb. 11 at 6pm. PBS NewsHour co-anchor Jeff Brown will moderate. The evening will begin with an interview with John Rizzo, followed by a discussion with Mark Bowden, National Correspondent for The Atlantic and author of a new book on the killing of bin Laden; Glenn Carle, retired career CIA officer assigned to conduct black site interrogations; Ann Hornaday, film critic for The Washington Post; and yours truly. RSVP: floersheimercenter [at] gmail [dot] com. Should be an interesting conversation.

Thinking Through the Malian Thicket

by Deborah Pearlstein

I can’t imagine that the DOD-DOJ-DOS-DNI-CIA lawyers assigned to this one are getting much sleep these days. According to the Washington Post:

The Obama administration is considering significant military backing for France’s drive against al-Qaeda-linked militants in Mali…. The loosely affiliated web of Malian militants in the country’s north includes members of al-Qaeda in the Islamic Maghreb (AQIM). But other fighters are longtime foes of the Malian government and pose no direct threat to U.S. interests.… U.S. officials have said publicly that they are evaluating France’s requests for further assistance. But privately, they say that one of the critical requests relates to intelligence that could be used for targeting purposes, said the senior official, who spoke on the condition of anonymity about intelligence and diplomatic matters. Evaluating the request involves “understanding what the French objectives are and really how they intend to go about them and against whom,” the official said.… The official said contingency plans for the use of armed drones were already in place and are being reevaluated. The official would not be more specific.

Hard to figure out from this bare report what’s really being considered here, but it seems that France wants either (at least) U.S. intelligence support for deciding what/whom to target in its ongoing ground operations against Islamist insurgents in Mali, or (perhaps) wants the U.S. to conduct targeting operations itself. (According to the Post, the U.S. government has ruled out sending U.S. ground troops to Mali anytime soon.)

Could the U.S. lawfully engage in armed drone operations in Mali? Where to start (and still get class prepared for tomorrow)? Maybe one international law question, one domestic:

(1) International law. Attacking anything in Mali raises territorial sovereignty concerns. Is there a government there that could lawfully consent to the U.S. use of force in country such that the U.S. wouldn’t risk violating UN Charter article 2 prohibitions against the use of force? Consent, best I can tell, is the only option here. There’s no UN Security Council resolution authorizing the use of force. And I’ve yet to see any media report suggesting we think there’s any kind of direct threat (much less an imminent threat) posed by the Malian militants against the United States. So consent it is, and it would come from, best case, a government that seized power by coup and to which we’ve otherwise cut off military aid. The U.S. still maintains an embassy in Mali (as does Mali in the U.S.), so perhaps consent is not legally insurmountable. But I’d wonder both what the terms of the U.S. aid cut-off were, and whether there’s any precedent for this.

(2) Domestic law. This seems the tougher question. Would, for example, the 2001 AUMF authorize the use of military force here? Recall the AUMF authorizes the use of “necessary and appropriate force against those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Setting aside for the moment whether there’s any operational way of distinguishing AQIM folks from the non-AQ-affiliated militants also opposing the Malian government, the AUMF would seem to apply at most to members of AQIM (not the other militants). But does the AUMF even extend to AQIM? According to the analysts at the West Point Combating Terrorism Center, AQIM was born as a guerilla Islamist movement opposing the secular government of Algiers. It became affiliated with Al Qaeda only as a last ditch effort to save its flagging local fortunes, perhaps as many as 5+ years after the attacks of September 11. This brings us back to the thorny and never resolved question of against whom, other than members of the Taliban and the Al Qaeda that attacked us on 9/11, the AUMF permits the use of force. But where it seemed possible to understand the case (based on publicly available information) that AQAP – the Al Qaeda affiliate in Yemen – actually had designs on harming the United States, it’s much less clear to me that AQIM harbors the same objective. Of course the United States should be concerned about AQIM – both the possibility of it establishing a Taliban-like Al Qaeda-friendly government in Mali, and the threat it more plainly poses to our allies France and Spain. But is that the threat Congress was worried about when it passed the AUMF? Hard to see.

(2b) So if not the AUMF, then what? The President’s own constitutional authority to use force (at least until the War Powers Act deadline)? Remind me after class tomorrow to re-read in full that OLC memorandum defending the President’s constitutional authority to use force without congressional authorization in Libya. For now I’ll just note that the sign-off there was pretty case specific. And had something to do with a UN Security Council resolution we surely don’t have this time.

The President explained in his March 21, 2011 report to Congress that the use of military force in Libya serves important U.S. interests in preventing instability in the Middle East and preserving the credibility and effectiveness of the United Nations Security Council. The President also stated that he intended the anticipated United States military operations in Libya to be limited in nature, scope, and duration. The goal of action by the United States was to “set the stage” for further action by coalition partners in implementing UNSC Resolution 1973, particularly through destruction of Libyan military assets that could either threaten coalition aircraft policing the UNSC-declared no-fly zone or engage in attacks on civilians and civilian-populated areas. In addition, no U.S. ground forces would be deployed, except possibly for any search and rescue missions, and the risk of substantial casualties for U.S. forces would be low. As we advised you prior to the commencement of military operations, we believe that, under these circumstances, the President had constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers, to direct such limited military operations abroad, even without prior specific congressional approval.

If armed drones are really what France is after, hope the OLC folks know where to get late-night take out coffee and croissants.

UPDATE: Complicating matters further, the Times now reports: “Islamist militants seized a foreign-operated gas field in Algeria early Wednesday and took 20 or more foreign hostages, including Americans, according to an Algerian government official and the country’s state-run news agency, in what appeared to be a retaliation for the French-led military intervention in neighboring Mali.”

Having Seen Zero Dark Thirty

by Deborah Pearlstein

Perhaps my favorite scene in the film Zero Dark Thirty comes relatively early on, when the two CIA interrogators around whom the early film revolves arrive at a U.S. military base in Afghanistan to interrogate their next detainees. The soldiers on the base have been keeping a cage of small monkeys (for unexplained reasons), and the scene opens with the lead interrogator – the man shown as directing the torture of a detainee in the scenes before – standing before the monkey cage and feeding them small bits of his ice cream cone. The feeding is conducted beneath a large handwritten sign that says, “Do not feed the monkeys.” The interaction ends in frustration for the interrogator when one of the monkeys successfully swipes the entire cone.

It is a small moment. It is, in the cinematic sensibility of this film, subtle. And for me it very nicely captured the absurd predictability of one of the many things the American experiment with torture wrought. Back in 2006, when my colleagues and I at Human Rights First did the numbers (thanks in no small measure to the volumes of the government’s own documents released under FOIA), there had been more than 330 cases in which U.S. military and civilian personnel were credibly alleged to have abused or killed detainees – cases involving more than 600 U.S. personnel and more than 460 U.S.-held detainees. They included nearly 100 detainees who died in U.S. custody, including 34 whose deaths DOD reported as homicides. At least 8 of these detainees were, by anyone’s definition of the term, tortured to death.

I doubt I’m alone in the world in my metaphorical interpretation of that scene. But I do suspect I’m in a minority for a variety of reasons. Among others, as Amy Zegart notes in yesterday’s Times, in 2007, 27% of Americans surveyed said the United States should torture prisoners captured in the war against terrorism. In Zegart’s August 2012 national poll, that number was up by 14%. In the same period, public opposition to, for example, naked chaining in cold rooms, fell from 79% to 51%. What do movies have to do with it? When my colleagues at Human Rights First studied the impact of media on public perceptions of torture back during the height of the popularity of the TV show “24,” they found that the show had helped reinforce how Americans, including policymakers, thought about torture: as necessary in certain situations. More, interrogators reported that junior soldiers imitated the interrogation techniques they had seen on TV. As Tony Lagouranis, a former U.S. Army interrogator at Abu Ghraib, once put it: “Everyone wanted to be a Hollywood interrogator. That’s all people did in Iraq was watch DVDs of television shows and movies. What we learned in military schools didn’t apply anymore.”

How much should the makers of Zero Dark Thirty care about such things? In her remarks before the Washington, D.C. premiere of the film last night, the film’s director, Kathryn Bigelow, said “we had no agenda” in making the film, and were “not trying to generate controversy.” We were trying, Bigelow said, to tell a story based on firsthand accounts of a decade’s worth of events given to screenwriter Mark Boal in his research. As a director, she said, I make the film. It’s up to the audience to interpret it. (The quotes are around words I’m sure I got exact, the others are the very close paraphrases from my handwritten notes.)

Room for interpretation there is. I walked out at the end of the film last night with two colleagues, who took diametrically opposed views about what they thought it had portrayed about the role of torture in leading to the capture of bin Laden. One thought it clear that the film showed that the CIA had the information or would have had the information about the existence of a courier from a number of sources (more than a dozen), and it wasn’t clear in the film whether all of them had been tortured. The other thought the film portrayed torture as producing the but-for lead that led to the eventual discovery of bin Laden’s compound. I thought it was dizzyingly unclear what the film was trying to say about the facts in this regard. My overwhelming perception of the intelligence efforts depicted in the film was of how fundamentally little the officials depicted knew, and how close to blind they all were, up until the moment bin Laden was shot in the head.

In this respect, I credit the filmmakers for their efforts to depict the human struggle with ambiguity. But while the film was in part about ambiguity – and about an avalanche of other things besides torture – it chooses (after some seconds of black screen and horrifying audio from the victims of 9/11) to lead with torture. The film could’ve started anywhere in telling the decade+ story about the hunt for bin Laden – in a Washington office, on a field of battle, with a family of one of the victims, even in a courtroom – but it features torture front and center. And for an extended period of time. More, the filmmakers chose to give voice to intelligence official characters who lamented the ending of the CIA detention program, but chose not to give voice to any intelligence official character (though such people also exist) who thought, for example, that torture was making it harder to find information they needed. It is not possible to tell a story like this (any story) as if simply presenting information devoid of meaning but for whatever meaning the audience attaches. The first and last time in the film one sees the protagonist intelligence agent Maya, she is a passenger – along for the ride in the first interrogation, being flown off to parts unknown in the final scene. The filmmakers have no such luxury. They are responsible for the story they choose to tell.

So what does responsibility mean? It is beyond obvious they have every right to make the film, exactly as they wish to make it, for whatever reason (or none) they wish to do it. Sure I would have told the torture story differently. (I would’ve also left out the film’s ample number of disappointing, even cringe worthy features. The absurdly overwrought performance in which a senior CIA bureaucrat berates the intelligence team for their failure to find bin Laden, banging his fist on the table like a bad motivational speaker. The greater absurdity of James Gandolfini in a bad hairpiece as Leon Panetta.) What might matter more is something like what happened when Human Rights First went through this back around “24.” My colleagues set up a meeting between the creative team behind “24” and the Dean of West Point and other experienced interrogators. Howard Gordon, an executive producer of “24,” even participated in a training film later developed for military academies that aimed to help troops distinguish the story of “24” from the reality of what they need to do. Far short of that, it would go some distance for the filmmakers to engage more in the public conversation. Bigelow and Boal deserve great credit for bringing their film to this kind of audience in Washington. But from an “aesthetic” point of view, Boal explained, he was not a fan of explaining work. And he did not.

That circumspection is well understandable, even admirable, under many circumstances. This, though, may be one of those circumstances in which more speech would help.