 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Ross Powell, editor of Libertarianism.org and a research fellow here at the Cato Institute. And I'm Trevor Burrus, a research fellow at the Cato Institute Center for Constitutional Studies. Our guest today is Patrick Eddington, Policy Analyst in Homeland Security and Civil Liberties at the Cato Institute. We're going to be talking about the Senate Torture Report and the CIA's Torture Program. So maybe you can start by just telling us what that report is, where it came from and then what's in it. Sure. So of course the original revelations about this particular activity, this so-called rendition, detention and interrogation or RDI program started to surface in the middle part of the last decade. A number of press reports talking about so-called black sites, things of that nature. So once that got out into the public domain, it became pretty clear that some kind of investigation was going to be taking place. So long story short, by early 2009 the Senate Intelligence Committee, I should say, had put together some terms of reference for actually proceeding with an investigation. There were a series of votes essentially in that period of time and this was a bipartisan effort at the beginning of it. And I would argue it was still a bipartisan effort at the end but we can get to that here in a little while. And they went ahead and they marched off. And the big thing of course was the need to try to get and secure documents that were relevant to this program. So they began a process in which the CIA insisted and this particular provision, this particular caveat was going to have downstream consequences. The agency insisted that the records essentially be maintained on CIA computers at a CIA related facility. Now that whole process was in contrast to how the 9-11 inquiry conducted by the House and Senate Intelligence Committees was conducted. In that circumstance, the records pertinent to the intelligence failure were shipped up to the Capitol and kept up there. And so the agency had no access to it and so it was a much more normal investigative process in that respect. So in any event, Chairwoman Feinstein elected to go along with this arrangement. And so she wound up sending her staff out there pretty much on a daily basis to go through what turned out to be about 6 million pages of material that were dumped on the committee. And a lot of staff wound up having to pour through that. It took forever to kind of knit essentially the narrative together. But in the course of the next two and a half to three years after that, by early 2012, they had actually managed to assemble a more than 6,000 page report with something on the neighborhood of 38,000 footnotes, which contained, among other things, the depositions or transcripts of folks who had actually had to cooperate with the CIA Inspector General's investigation into this whole program, among other things. And just a treasure trove essentially of internal agency emails, other internal memorandum correspondence, including cables out to some of these field sites known as the black sites. So what we had released last week was just the essentially executive summary. I've never seen a 525 page executive summary before. So that's definitely a first. But this document alone, just the executive summary of the 6,700 plus page report, is among the most damning government documents I've certainly ever seen. And it confirms a number of things that we already knew. We knew that waterboarding had taken place. We knew that Khalid Sheikh Mohammed, Abu Zubaydah, and some of these other detainees have been subjected to this. But we learned just exactly how far down the dark side essentially the CIA had gone. And here we're talking about the use of power drills and guns to actually threaten detainees with death. We're talking about pushing a detainee so far and locking them essentially in such a cold place that they wound up dying overnight. Radical use of things like so-called rectal rehydration, which is not a medically approved or necessary procedure in any kind of circumstance. And then direct threats to the children of some of the detainees, threatening to murder the mother of a detainee in front of them, and so on and so forth. So just a, literally a list of horrors, sleep deprivation in one case going beyond seven consecutive days, inducing radical hallucinations in the subject. So just beyond the pale essentially. Things that certainly CIA personnel and US personnel normally would never engage in the course of any kind of armed conflict. The mismanagement in the program was absolutely unbelievable. They contracted with two psychologists who had absolutely no experience whatsoever in interrogation and basically told them to set the program up. Something on the order of 80 million of your taxpayer dollars was doled out to these two individuals. So you have everything- But just the psychologists earned 80 million dollars from this? Yeah. Wow. Yeah. So I mean it's literally like a little shop of horrors of everything that you don't want to see in government. A secret program completely out of control where abuse and death take place plus massive waste, fraud and abuse of taxpayer dollars and no actionable, effective intelligence coming out of this at all. And that seems to be the thing that surprised people and of course people on the, I guess, more of the right side of the spectrum are pushing back against it, but that torture didn't produce actionable intelligence. It seems obvious to me that if I were being tortured I would just tell them to go, oh yeah, we're trying to- There was one people in Montana, I think Khalid Shikman, Muhammad told them that they had agents in Montana and all these things that just weren't true. But it's just to stop you from torturing. Yeah. And so that was a rabbit hole that they wound up going down for several months, I think three or four months actually. They pursued that false lead. So it's just an example of how far off course a country and a people and in this case a specific government agency can go when they're placed under this enormous amount of fear and stress in the wake of this attack. That's- I wanted to ask about the timeframe on this. How long this program was going on? Is it still going on? Because one of the ways that people are defending it is we had just been attacked in this horrific way and so everyone was terrified and we had to do something which works- I mean, I don't think that argument works, but it makes more sense the closer you are to 9-11 and the further you get away the harder it is to argue we're doing this because we're terrified. Yeah, I mean, like anybody who was alive at the time and is still alive today, I can tell you exactly where I was and what I was doing on that morning. And the rawness of it, the fact that it was an event that happened in real time that was witnessed by tens of millions of Americans, the fact that it was directly experienced by the largest city in our country. Nothing like this had happened since Pearl Harbor, but in the case of Pearl Harbor, you know, you didn't have television. You didn't have this instant means of communication that you have now. And so that gave President Roosevelt and the folks around him the ability to kind of shield the public from the true magnitude of the damage that had actually been done at Pearl Harbor here. There was no filter, right? So it was raw, it was powerful, and there was this palpable desire for revenge. I mean, it was probably epitomized best by President Bush going up there and standing on the rubble and saying, I hear you, I'm paraphrasing, but I think this is closed. I hear you and soon the people who did this are going to hear you. So it was one of those where America, you have just messed with us. You have just, you know, bought a world of hurt that's going to happen here. And unfortunately, you know, those emotions very clearly carried over in terms of how this whole this whole thing started. President Bush within six days of these attacks signed this covert action memorandum. It was called a memorandum of notification instructing the agency to set up this rendition detention and interrogation program. Now, in that original covert action memo, he made no reference to any kind of interrogation techniques, right? So once folks at the agency, once George Tent and the others, you know, get their marching orders on this, they then proceed to go and try to figure out how to do this. And of course, the agency has no experience really doing this at all. They've never really taken detainees like that before, right? No. And to me, that's another one of the great mysteries, ironies, problems with all of this. It's like you have this entity called the Federal Bureau of Investigation that, as of 9-11, had over a century of experience doing this very thing. But the president clearly wanted to go in a very different direction. And this also... Do you think this had, that probably had to do with the higher level of secrecy in the CIA possibly? And also, it has an interesting insulation from Senate oversight in an interesting way, right? Yeah. I mean, I think part of this was they wanted to get at these people. They wanted to treat them differently, right? Because in previous conflicts, normally when you're in war, you have the law of war that you have to abide by and things of that nature and how you treat prisoners. You know, so you have to behave in particular ways in that kind of a context. In a more criminal context, a more traditional criminal context, like what we saw after the Oklahoma City bombings with McVeigh and Nichols, right? They went into the court system. There was no waterboarding. You know, there was none of this kind of stuff. And they clearly wanted to do something different. I would call it in between and put them into some kind of gray or legal zone where they would essentially be untouchable in whatever way. And there was a clear, I think, sense that they wanted to use whatever tools they could come up with in order to try to get information out of these people. And so when you look at the documents that the committee lays out here and they're drawing directly from internal CIA correspondence, which is what makes this so incredibly damning, you begin to see by early 2002, in the spring of summer 2002, CIA lawyers now essentially looking for kind of a get out of jail free card. They're beginning to think about, you know, doing some things here. And I think it's worth just kind of reading one particular paragraph here because it really highlights it. And this is from July 2002. And this is after the meetings with the contractors who have no experience in interrogation who ultimately get the $80 million. CIA attorneys, quote, drafted a letter to Attorney General John Ashcroft, asking the Department of Justice for, quote, a formal declination of prosecution in advance for any employees in the United States, as well as any other personnel acting on behalf of the United States, who may employ methods in the interrogation of Abu Zubaydah. He was the first detainee that the agency had picked up that otherwise might subject these individuals to prosecution. The letter further indicated that, quote, the interrogation team had concluded, quote, the use of more aggressive methods is required to persuade Abu Zubaydah to provide the critical information we need to safeguard the lives of innumerable innocent men, women and children within the United States and abroad, and, quote, and then the letter added that these aggressive methods would otherwise be prohibited by the torture statute, quote, apart from potential reliance upon the doctrines of necessity or of self-defense, end quote. The letter was circulated internally at the CIA, including one of the contractors. However, there's no record indicate that it was provided to the Attorney General. But we know, of course, that they continue to ask for this kind of thing and that ultimately John Yu, lawyer over in the DOJ's Office of Legal Counsel, provided them exactly the kind of get out of jail free card that they were looking for. Yeah, which is an astounding memo in itself of trying to figure out what torture is and using medical statutes about insurance policies to say that it has to require permanent damage and all these things are sort of pulling these things out of nowhere. Let me just ask about that letter because is that even legal to draft for the justifying? I think we're beyond legal. No, I mean there's levels of – but this just seems like if I sent a note to local prosecutors saying, I'm about to commit this really terrible crime so I just want you to sign a piece of paper saying that once I've done it, you're not going to prosecute me. Prosecutors, can they even do that? And if they did, would that paper carry any sort of weight? I mean it seems like kind of think they're not – they can't sign a way. Yeah, you can hope so, yeah. I mean the reason that I wanted to read this aloud so folks would have the benefit of hearing this is because it is so absolutely extraordinary. I mean you have government attorneys here at the Premier Intelligence Agency of our country asking for a get – literally a get out of jail free card if they go and to use colloquialism, tune up somebody to the point where it might be considered torture. It's absolutely astounding but this is the thought process and the other thing that's significant about this and I really can't emphasize this enough. You've heard people like former CI director Michael Hayden and former CI public affairs hack Harlow, Bill Harlow and some of these other folks saying the agency is being thrown under the bus, the agency is being thrown under the bus, the agency was driving the bus. I mean that's what this makes very, very clear and you find more references like this as you go through the report where certainly 2002 and 2003 the lawyers are like we want to try to do this, how do we make it happen? It's interesting that we're talking about the sort of the setting of the situation and what they were afraid of and this idea of saving lives of torture and the fear of nuclear weapons in New York City and things like this but is there really a better justification, I'm putting that in scare quotes, for torture in the situation of the war on terror than there would have been to torture oh Nazi officers that you captured during World War II who could know about troop movements that could save thousands of lives of American soldiers, right? Is there any more justification? What is it that causes people to go off and say torture in this situation, okay, but we shouldn't have tortured Nazis? Yeah, I mean it's the same kind of illogic if you will, right? And again a lot of folks in former Congresswoman Jane Harman would often talk about this in the hearings that I watched her during the debate on the intelligence reform legislation that produced the ODNI. We have to be concerned. The ODNI is? The Office of Director of National Intelligence. So this is the major reorganization that took place essentially after 9-11. Trying to come up with a new structure to ensure the dots would actually get connected and we all know how well that worked out in light of the underwear bomber and what happened in Boston last year and so on and so forth. But well Harman would often invoke this ticking time bomb type thing for justifying things like the lone wolf provision in the Patriot Act for example. And which is? And the lone wolf provision in the Patriot Act is basically designed to lower the standard of suspicion to allow the government to go after particular individuals if they believe those individuals are going to essentially be lone actors, let's say like the gunmen in Sydney just this past week, that would be a good example. But it's those kinds of appeals to lowering of standards, right, because of so-called exigent circumstances like the bomb is ticking. It's like the Fox 24 type thing. Well I actually have a question here on my question list about 24 and how it's affected perceptions of torture. I mean reading this report, I've really wondered whether or not some folks involved in this program weren't like feeding script ideas to the producers during the course of this thing. This is the question that a friend of ours, Grant Babcock, who works on Libertadores.org, he always says he wants to ask John Bolton or maybe Brennan, what is it like to live in a Tom Clancy novel? That seems to be where they think they live. This is constantly happening in such a way. So it doesn't work is one thing we learn from this. What else do we learn about what George Bush knew, for example? Well it's really clear that there is a tremendous amount of after the factism that's going on here. So you have folks like John Rizzo and Hayden and others saying the Bush always knew. What the report shows is that Bush really did not get any kind of full briefing on the specifics of these techniques until probably about the 2006 timeframe in which one particular interrogation was described to him in which an individual had their hands chained to the ceiling. They were subjected to extreme sleep deprivation. They were wearing a diaper. They were allowed to basically empty themselves on themselves, et cetera, et cetera. And Bush allegedly expressed, quote, discomfort and quote, you know, at the imagery associated with this, but he didn't order it stopped, right? And I think that's where ultimately once actually being put in the position of understanding what the agency was really doing and electing to let it go on, that to me is where, you know, Bush becomes at least politically culpable at this point whether or not he's actually legally culpable, certainly in any kind of domestic context. You know, that's beyond me, but... Let me ask about... So, I mean, I think it's clear that the three of us in this room, and I know our producer, Evan Banks, who I've spoken with about this as well, shares this view like we have this visceral loathing for what is contained in this report and that such a program would exist. And when you say the word torture, your reaction should be visceral loathing. That's the way you should feel about it. But the Washington Post put out a poll that they conducted last week. So, December 11th through 14th, they say, asking Americans their views on this stuff. And they said, so I'll just quote, by a margin of almost two to one, 59% to 31%, those interviewed said they support the CIA's brutal methods with the vast majority of supporters saying that they produced valuable intelligence. And so, I want to see how you respond to the arguments that would be given for why we shouldn't have this visceral loathing. And I should say these questions, often on this program, I play the role of devil's advocate. I play the role of trying to ask questions that I think someone who disagrees with our speaker would ask or be wondering about. And I'm finding that particularly difficult in this case. Pretend to be an advocate for torture. Right. Well, I mean, that's what this, you know, it's like you can, you can pretend to be an advocate for public education. Or for healthcare. You know, single-payer healthcare. But in this case, based on what this report, it's pretending to be an advocate for cheering on sexual assault, rape, inhumanity. I mean, just like beastial behavior. And so, I mean, I apologize to our listeners if I am not as, you know, good at expressing the opposing view as I often am. But what's wrong with all of this? Yeah. So, Evan, can we get Vice President Cheney on the line? Yeah, exactly. Just call him up, Evan. It's okay. I mean, he's clearly demonstrated not only no discomfort with all of this, but that he has, you know, clearly been one of its proponents, you know, throughout the whole thing. And again, you know, he has gone through the whole series of talking points about, you know, we needed to use every tool at our disposal, our country had been savage and so on and so forth. And nobody disagrees with him on the basics of our country was attacked. I think we kind of all know that, right? But as Senator John McCain has said over and over again, and eloquently, I think, every single time, this isn't simply about them, it's about us. Yes. It's about who we are and what we purport to believe about ourselves and ultimately how we convey ourselves, not just through our words, but more importantly through our actions to the rest of the world. And that, to me, is the point that's lost on a lot of folks. And to get to the poll you were talking about, there were actually three polls that have come out in the course of the last week on this very topic. And they all have the same things in common. The results are largely the same in terms of what you just described. They also didn't bother to ask any of these poll respondents whether they had read a single word of this report. I mean, I would be happy, frankly, if people would just read the executive summary, the executive summary, right? Dian Feinstein's, yes. I mean, just read Dian Feinstein's six-page preface, essentially, to all of this. And I'd be happy if people just went that far. But in the Pew poll, they found that only 23% of their respondents had been, quote, closely following what's been going on here. So, in essence, you had polling firms asking a bunch of Americans, well, a slice of Americana about a topic they really hadn't been paying close attention to and a report they hadn't bothered to read. And they also didn't bother to tell their respondents or even ask them, do you know that torture is a federal crime under Title 18, Section 2340? Yeah. Because that's it. It's like it may be emotionally satisfying to imagine having your Jack Bauer stand-in beating the crap out of somebody over this. Who you know, and this is a board board, in 24, via cutaways and everything, you always know that the guy that he's beating the crap out of did put the bomb in the stadium. And so there's no question. That was one of the... Dick Cheney did a Meet the Press interview over the weekend, and that was one of the most disturbing aspects of it, was when he was asked about how we know that a significant number of these people were innocent, mistaken identity, that this wasn't at all a situation where we knew this was the bomber who had planted the bomb in Times Square and we just need to figure out where it is and we've got 20 minutes. Exactly. This was... We found this guy who may or may not be involved and he may have some information that may lead to other information that may lead to actionable results sometime down the road. Let's break his legs and make him stand on them. Exactly. And it's... I don't... I just don't... I do not understand at all how Americans can... I mean, Dick Cheney seems to be just kind of beyond the pale. Yeah, it's just beyond the pale for a long time. But I just don't understand how we can look at this because it's exactly... It's about us and it's also about the role of the state. Yes. We... A social contract theory of the state is that we institute this thing in order to preserve our rights and liberties and preserve civilization against barbarism. And what this report shows is that barbarism has taken over. Barbarism is sitting in the seats of power in the United States. The state perpetrated acts of barbarism. Right? Again, I keep going back and... There are some folks who might take issue with this but I keep going back to Oklahoma City. Right? That was the biggest act of terrorism committed on American soil prior to 9-11. And we did none of these things. And I keep asking myself, what are some of the key differences here? Well, one difference in the case of 9-11 is it was a group of foreigners, ultimately, who committed these acts of terrorism. But, you know, we didn't engage in this kind of activity with German and Japanese and Italian prisoners in World War II. Right? We didn't do this to North Korean or Chinese prisoners in the Korean War and so on and so forth. So I come away with a very, very strong belief that it has a lot to do... The reaction here has a lot to do with race and with religion. And those are uncomfortable conversations that I think a lot of Americans don't want to have. But the folks that we went and roused at after 9-11, these immigration raids that took place in the weeks immediately after the attacks, they were all essentially going after people of color at the end of the day. Well, it's interesting because a lot of conservatives have this mindset that every Arab, if not every Muslim wants to kill us. And so maybe one of the things that goes in here... In law, we have this rule about not bringing up prior bad acts in a trial. You can't say this guy was convicted of rape before and he's on trial for rape. And we don't do that for two reasons. One is that people will obviously think that's really good evidence and maybe convict him. But two, they also might be less wary of error. They might be like, well, even if we're wrong about this, the jury. Even if we're wrong about this, we're still convicting a bad guy. I mean, he's a rapist, so it doesn't really matter. It doesn't matter as much if we're wrong. And so it's almost like you've destroyed the presumption of innocence, which I think a lot of American conservatives don't have essentially a presumption of innocence against anyone who happened to be in Afghanistan and was a Muslim at the time and got picked up by the U.S. military, which is probably where most of these people came from. Yeah, and again, you have this problem with Guantanamo, right? Most of the people down there now, at this stage of the game, outside of a very, very small group of hardened types that we know for a fact for an absolute fact are tied to terrorist organizations. The rest of those folks, you know, never had any connection to these kinds of things. And again, it's the walking away from those basic American principles that got us into this. And that's why going forward, you know, I've been seeing a lot of different proposals. You know, Senator Wyden is talking about trying to tinker with the definition of torture and the ACLU's kind of talked about some of these other things. I think that's going down a legislative rabbit hole, right? My view is the Central Intelligence Agency should be in the business of collecting and disseminating intelligence. It should not be in the business of running prisons and torturing people. And this is coming from someone who used to work for the CIA. Yeah, you know, and I mean, look, I mean anybody who knows my background knows that there is absolutely zero love loss between myself and my former employer. But I will always think of myself as a professional intelligence officer and a professional intelligence officer does not engage in this kind of activity, period. You mentioned that we didn't do this to the Nazis and to other people we were at war with during World War II. And I think you're right that a large part of the difference is race and religion. But what about, is it, these people are also the attacks that were carried out against us. And the attacks that we feared coming after 9-11 weren't the kind of attacks that, say, the Nazis were carrying out against us. They were terrorist attacks. Except for they carried out against London, don't forget they bombed London. What I mean is that the, if you tortured a Nazi officer, you were going to get troop movements. And they were, you know, this is how they're going to come and they're going to attack where we have troops. And so it was a military on military sort of conflict. Yes. Where maybe that kind of like, the harm that they're going to do is not going to be immediately to civilians. It's the kind of thing that we can see coming easier. Whereas the terrorists after 9-11, it was, you know, they might blow up a school or something like that, which makes it a potentially different sort of danger and maybe one where these kinds of torture techniques are more warranted. Right. So the asymmetrical nature of the threat is certainly a different one. But you can make that same point, essentially, about any kind of terrorism. Right? So in this country, we've had terrorist acts committed for decades. Right? They just don't always get labeled that way. Or they get viewed differently. Like if you go back and look at the Weather Underground, for example. You know, did we torture those folks? Once we took them into custody? No. None of those kinds of things happened. And that's really the Puerto Rican nationalists and separatists, right? From an earlier generation. You know, same kind of thing. And then, you know, my area of the country, I grew up in Southwest Missouri. You know, we were blessed with things like the Covenant Sword and Arm of the Lord. You know, which basically held people captive. A right-wing, you know, supremacist group. Down in Pontiac. And then we have, you know, the Branch Davidians and so on and so forth. The whole Waco episode obviously was another one that was terribly handled by the government. But generally speaking, when we're talking about these asymmetrical threats, even in a terrorist context domestically, prior to 9-11, we handled them as criminal acts, right? And they were taken care of in the court system. And the one thing that I will give this administration some credit for, not a lot, but some, is trying to move our country back in the direction of demilitarizing at least some aspects of the so-called war on terror. Now, we're still doing a drone program. We're still doing a lot of other things that continue to give it a military character. And that's the other thing that we need to walk away from. But at least with respect to our topic today of torture, we have a perfect opportunity, essentially, to walk away from that forever. But if we're going to do that, it's going to mean getting the CIA out of this business permanently. And I would just remind everybody, if you didn't watch Director Brennan's defense, essentially, of the agency and what it did, I encourage you to do so because under questioning, he did not rule out a future program like this. And to me, that's the most disturbing part. Here's a guy who has seen it from start to finish, literally. And he still has not drawn the correct conclusions about how we ought to be dealing with this. How much do you think that the thought of nuclear weapons and dirty bombs also, you're talking about asymmetrical warfare, but I don't think we ever really talked about this possibility with the Michigan Militia or with Timothy McVeigh. We would say, well, they might have nukes. No one thought that. But the idea that they might have nukes definitely exists with some of these tears. So that also seems to play into the fact. I don't think there's any doubt that when you start talking about either a dirty bomb or the ability to use chemical or biological weapons, things of that nature, you have a concern. And we know for a fact that Al-Qaeda was looking into this. We know that they did some horrible chemical warfare experiments on dogs and other things. And we know that they had at least some kind of a research program into BW. And we know from what happened in the case of the Amerithrax attacks here in our own country, which I personally do not consider to be solved. I'm not a conspiracy theorist, but I spend a huge amount of time dealing with this issue. They are solved. They are officially unsolved. Well, you know, if you talk to anybody from the FBI, they'll say, Ivan's did it. End of story. Now, in my view, if they'd had to go to trial with the evidence they had, they would have lost. But these concerns about even relatively minute quantities of WMD or at least materials, it could be transmuted into some kind of WMD, they're not illegitimate concerns, but I will say that they're kind of at the very far end of the spectrum of likely. Because when you start talking, particularly in the nuclear arena and dirty bombs and things of that nature, you have concerns about these kinds of controls. That's why you have programs like Nunn Luger and others to try to round up those kinds of materials. But your greater threat, I think, is what you've seen previously with like the Om Shinrikyo attack in Tokyo in 1995, right? I mean, they managed to whip up some very crude sarin, definitely killed some people, made a lot more sick. But I think what stands out about these episodes is exactly how infrequent they are. And it's actually a lot more difficult to pull that kind of thing off. Doesn't mean it's impossible, but there's no question that that has frequently been used as justification for how we approach this so-called war on terror and various aspects of it, including the interrogation program. And of course, you've got to return then to the fact that as you just constantly remind people, you know, are kind of for these things, it doesn't work. It doesn't work. Like, don't ever forget the fact that it doesn't work. It does not work. Well, that was from this poll when you talked about how they did these polls and people didn't actually work familiar. I mean, it says here, again, from this Washington Post ABC poll, 53% of Americans say the CIA's harsh interrogation of suspected terrorists produced important information that could not have been obtained any other way. I'm amazed they have opinions about that. But that was one of the, like, big findings from the report was that, actually, that was not true at all. Yeah. But it's a tribute, in a dark kind of way, to the success of Hayden and Tenet and these other folks involved in this pushback effort. And it just reminds you of the whole WMD in Iraq debacle from the previous decade. There's still people, plenty of people in this country who believe that we found Saddam Hussein's, you know, magical missing weapons of mass destruction. And the will to disbelieve or the will to believe the big lie, it's there. Is part of this, it often seems like, and you see this a lot from conservatives in particular, they, much of government they see as totally incompetent, but they think that the CIA, the military, the FBI, the, like, cooler branches, I guess, the ones that we have like, yeah, we have like fun TV shows and books about are like these awesome super humans who can do no wrong. And so I wonder if that's partly playing into, like, it doesn't matter what the report says, if the CIA was doing this, the CIA can't fail. These guys are like geniuses. Right, right. And of course liberals tend to have exactly the opposite viewpoint. Yeah. It's like nobody at the Department of Education could ever make a mistake. That's a good one. But you had the idea of the super agent. Yeah. You know, I mean there's this mythologizing and I mean, look at our culture, right? I mean, 24 was the highest rated show in the country for years, right? And so it's building up this entire component of the national security community and basically saying that, yeah, you know, I mean, these guys are, guys and gals are just totally awesome. But we actually saw in the report that it was rogue, it was mismanaged, it was, they were obfuscating, they were deliberately blocking information. I mean, look, we know that, you know, they're not all stars because they allowed the attacks to happen in the first place, right? And that's not to say and this is not a throwaway line. I mean, there are good people who work in our federal law enforcement and intelligence communities. They are there. I had the privilege of working with some of them. But there are an awful lot of people in there, particularly when you get into the middle and upper management. I mean, it's about the position, it's about the power, it's about protecting the organization, you know, and instead of actually being focused on the larger picture. And to me, that's, again, one of the most damning things about this entire report is that you have the director of central intelligence, George Tennant, basically just saluting and saying, yes, sir, when Bush comes to him and gives him this memorandum of notification and says, go get these people. Tennant's correct answer should have been, I'm sorry, Mr. President, I think you have me confused with the director of the FBI. You need to go talk to Bob Mueller about this. He didn't do that. And that decision, you know, put the agency on this particular path. But then people inside the agency, particularly the attorneys, went out of their way to try to find a way to actually make it happen. And that it's that lack of a sense of loyalty ultimately to the Constitution and to these higher values, that's what should give us all a lot of concern. Now, what about legal consequences? I guess two questions. Could there be legal consequences and should there be legal consequences for anyone involved in this at any level? Yeah, the should part is the easier one to answer, obviously. I certainly think anybody involved in this program should go to jail. And you mentioned, I mean, it's against the law. It's a flat-out, clear-cut violation of Title 18 of the U.S. Code, Section 2340, which is the torture statute. And don't forget that we also prosecuted Japanese-rewarding people. We absolutely did. And unfortunately in this circumstance, and I'm not an attorney, although I sometimes masquerade as one, you have the problem of John Yu and some of these other folks in the Office of General Counsel writing these opinions, saying, go forth, this is legally sanctioned and justified. And so even those opinions were later withdrawn, they were acting on the basis of those legally binding opinions at the time they committed these acts. So I think in a domestic context, particularly given the fact that Special Counsel John Durham, who was appointed to investigate the destruction of the tapes of these activities by Jose Rodriguez. We forgot about that part of the story because that was why she started investigating because they destroyed the tapes. That as soon as, in fact, within a day after the announcement that this investigation was underway, those tapes were destroyed, which by itself, no, I think that's dispositive, but you know. But yeah, that's the difficulty in a domestic context. Now, under international law, as I understand it, if a particular country decided to claim universal jurisdiction over this, could a country potentially try to bring folks up on charges here? Yeah. I think the difficulty would come when whatever government head was involved in trying to make that decision was then told by the head of that country's intelligence service, sir or ma'am, we may have provided information to the central intelligence agency that may have led to the detention of an individual who may have been tortured, don't think you want to go there. And I honestly think that that practical political part of it is probably the reason why we're not going to see anything happen here, which is enraging and it sends a horrible message, but I think that's where we end up. And I also think that just the domestic political backlash, and I tend to think this would come far more from conservatives, but not exclusively so. The backlash of a foreign country trying to indict, I mean, let's just go to the top, just trying to indict Foreign President Bush for authorizing the program to begin with. That doesn't play domestically here in the United States. Yeah, we should be worried also as we've talked about before off air that if we let that happen, they might start indicting our people for things in the future like speech laws and things like this which are totally against our values, but with the torture thing, it's difficult. Which is another question about we may not, we probably won't ever do anything to these people, but we did release this report and some people said, why now? We already knew about this. Andrew Tantaros on Fox News talked about how awesome America was. And it's been a wonderfully crazy little soundbite, she's like, we already know about this, we buried that hatchet, we don't do it anymore. One thing this is going to do is encourage our enemies. What do you say to that? You know, so in the lead up to all this, of course, you heard Hayden and others saying, if you do this, they're going to be more people killed, more Americans will be targeted, so on and so forth. To which I've responded, you mean more than are already being targeted because of our drone strikes and our outsized military campaigns basically across the entire Muslim and Islamic world? I don't think so. The timing of this is the CIA's fault, right? I mean, this report was ready to go almost two years ago. And so you had both the CIA, but also this administration slow rolling the committee and all the nonsense over the redactions and I honestly believe that the only reason we made progress on this and actually got this executive summary out is because, number one, Feinstein wasn't going to let it go, but then number two, you had Mark Udall actually dump the entire thing into the congressional record, not just the summary, but the whole 60s-heaven hundred-page thing. And I think that that pressure finally pushed them to stop the slow rolling. And I also feel like they felt, okay, we're close to the holidays. This is going to be a two-three-day story, maybe a week-long story at the outside, then it's over. Republicans are going to take over the Senate. We know that Richard Burr has no desire to go here and do any further investigation, so it goes away. I think the confluence of events is why we wound up where we are. So if you don't think we're going to get any prosecutions out of this, are we going to get anything positive out of this? That very much remains to be seen. It's going to be a question of whether or not Senator Feinstein, Senator Wyden, and possibly some others on the Republican side, let's say Senator Paul maybe, want to pursue some kind of legislative bar of the type that I have described or some other actions that would make it far more difficult for this to happen in the future. Again, my own view is unless you have an absolute statutory bar here, you leave the door open. And that's why it needs to be very definitive. But it doesn't seem to matter. This was illegal when they did it. You can't be like, let's amend title, whichever title you said of the torture code, to put, we really mean it, and even the CIA. They still would be like, well, yeah, I mean, I think the cover they had was Bush signing the memorandum of notification, right? So if you actually had a statutory bar to the agency being involved in any kind of detention or rendition program, I do think it would be vastly more difficult for anything to happen. But again, it would have to be a sledgehammer type approach. But wouldn't they just move it to a different, I mean, wouldn't they have the military do it or the FBI do it? There, I think, if you wind up having the FBI do it, then it's much more difficult not to have that wind up in like an Article III court type environment. If the military is doing it, then it has to be under the law of war, ultimately, right? So that's when you would at least get these activities back into established, recognized, manageable, legal and political zones. What the Bush administration created and what the Obama administration seemingly kind of sustained essentially, at least through the period of this report, is this gray zone where we get to do to them whatever we want to do and there's no consequence and so on and so forth. Have we learned, you mentioned the military just now, have we learned, is this the majority of the torture that was occurring during this bad time, this war on terror time? Was it the CIA? Were they always the ones that were probably doing most of it? Or are there other reports that need to be written about the military in Abu Ghraib, which was not run by the CIA and other things like that that still need to be aired? I mean, I think there are still battles over the Abu Ghraib pictures, right? There are literally thousands of photographs of this stuff that were taken when the military was engaged in this kind of stuff. That battle is still going on. There's probably records that are still out there that ought to be made public. These programs kind of ran in parallel, but I think the direct application of this essentially has largely ended. Certainly in the CIA's case, we don't have any reason to believe on the basis of the information that we have. I like to caveat it that way that the agency is directly involved in this activity. But there is one thing that I was reminded of this past week by investigative journalist Jeremy Scahill, which is that he spent a lot of time in Yemen in 2011. And he identified a specific facility that was almost certainly constructed with U.S. government funds that appeared to be affiliated with the Yemeni intelligence service. And when he was on the ground interviewing various folks there, it became really clear to him that there was some kind of U.S. intelligence community, Reid's CIA, involvement in that facility. So, the thing that concerns me, and I think that concerns a lot of folks in the human rights community, is whether or not our government is still in the torture outsourcing business, right? So, in other words, even if Obama said we, the United States, are not directly doing this anymore, are we still doing the wink and nod to our so-called allies where, you know, we can't do this. It's just like the movie Rendition, right? With Jake Gyllenhaal. You know, same deal. In this case it's Yemen, it could be Egypt, it could be anybody. I worry about that a lot. I'm very concerned that that might still be going on. So, I think there's more to be done. There's more that should be done and the question is whether it will be done. Now that we've discussed the contents of the report, we've discussed the reaction, we've discussed the reform, but at the broader level, what lesson should we, as Americans, take away from this... Or human beings. Take away from this whole experience, and maybe particularly, like what would you say to that two out of three Americans who, whether they're informed about the contents or not, still say that they support these kinds of methods. I would say to them that if we are going to be the good guys in the world, and I use that generically, ladies, then we've got to live that. We've got to act that way. I mean, everything that we've talked about today was illegal from start to finish. And if we're going to be a nation that purports to live by the rule of law, then we need to do that. We can't just cherry pick here and there, like, well this is an exigent circumstance, so just this once we'll go ahead and break a leg, right? We cannot go there. We cannot go there. Those are not the values that we should be teaching our children. These are not the values that we should be living. To me, the kind of the meta lesson here, and this is the tough one, in times of national tragedy trying to maintain a sense of calm and focus and composure and not overreact and commit yourself to things that you're going to regret later and that the country is going to regret later. I don't know whether or not we're at a point in human evolution where it's going to be possible to necessarily do that, but that's certainly the lesson that I take away. Thank you for listening to Free Thoughts. If you have any questions or comments about today's show, you can find us on Twitter at Free Thoughts Pod. That's Free Thoughts P-O-D. Free Thoughts is a project of Libertarianism.org and the Cato Institute, and is produced by Evan Banks. To learn more about Libertarianism, visit us on the web at www.libertarianism.org.