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John Brennan and U.S. Torture
by Jalel Harchaoui.
Systematic, discreet, well-oiled-machine illegality has been supported by John Brennan consistently throughout his years working as a senior counter-terrorism official in Langley (1996-2005) and Washington (2009-2013). This document—one in a series of five articles—addresses specifically Brennan’s influential attitude toward torture when carried out by U.S. citizens.
John Brennan and U.S. Torture

'Zero Dark Thirty' director Kathryn Bigelow: "Torture has its uses."

On 24-Apr-12, the prestigious campus newspaper Harvard Crimson published a statement by Bo Guagua five months after his mother, Gu Kailai, killed MI6 operative Neil Heywood using cyanide in Chongqing, China. The young man, also the son of deposed Communist Party figure Bo Xilai, declared solemnly, “I have never driven a Ferrari.” The affirmation by the then-postgraduate student at Harvard’s Kennedy School of Government was 100% accurate and unassailable: he drove a black 2011 Porsche Panamera, not a Ferrari (WSJ, 27-Apr-12).

If one wishes to understand the Obama administration’s approach to torture, one only has to grasp the above mentality. That particular kind of rectitude vis-à-vis the public is what made Obama’s “the United States will not torture” Executive Order possible on 22-Jan-09.

The overwhelming majority of the torture performed in the world at Washington’s behest, using U.S. military, intelligence-gathering and finanical support is in fact not carried out by American citizens anyway.

Faced with a larger number of victims stemming from the wars on Afghanistan and Iraq, the Bush/Cheney administration changed protocol vs. the approach usually employed since the end of the Vietnam war in 1975. By and large, Barack Obama has allowed his 22-Jan-09 Executive Order to remain a dead letter. The President simply (i) bolstered the opacity surrounding U.S.-owned horror chambers such as Guantánamo, Cuba, Bagram, Afghanistan, and other CIA secret prisons overseas; (ii) went back a bit closer to the established norm of the 1975-2000 era. I.e., no arrogance-induced scandals such as Abu Ghraib or al-Qahtani; much more secrecy when it comes to having U.S. citizens torture suspects in U.S.-owned prisons; but other than that, routine recourse to torture via outsourcing to other countries.

Over the decades, Washington indeed has outsourced most of the torture it sponsors and pays for. As of today, torture-friendly venues include Saudi Arabia, Nigeria, Israel, Indonesia, Colombia and Ethiopia. Pariah countries with already nothing to lose in terms of reputation on the world scene. Award-winning American investigative journalist Allan Nairn, the most realistic voice on Obama’s crimes when it comes to torture, wrote: “Obama could stop foreign forces that torture [at Washington’s behest], but he has chosen not to do so” (News and Comment, 2009).

Whether it be U.S.-culpable or U.S.-performed, the most influential person behind the Obama administration’s pro-torture policy has been John O. Brennan.

“Brennan was not simply at the CIA at the same time as these interrogation and rendition policies were instituted or carried out, or was merely ‘associat[ed] with’ those policies. In fact, he has publicly supported[1] the CIA’s post-9/11 […] use of ‘the most serious types of enhanced’ interrogation procedures” (07-Jan-09, Raphael Schweber-Koren).

Setting the rhetorical flourishes aside, Brennan’s actual behavior within the CIA during the years 1980-2005 is such that one of America’s most thorough investigative journalists, the New Yorker’s Jane Mayer, could not write about U.S. torture during the Bush/Cheney years, without quoting John Brennan as a “supporter” of “harsh interrogation techniques” (13-Aug-07). Before the 2012 election, “several former intelligence colleagues” of Brennan’s told the London Financial Times that “they could not recall him” ever criticizing “the CIA interrogation methods” while a “senior executive at the agency” (25-Oct-12).

Days before he was asked to join the fledgling presidential campaign of Barack Obama, Brennan said he was in favor of torture on 02-Nov-07, in an interview with CBS News’ Harry Smith. To the question as to whether, in Brennan’s view, ‘enhanced interrogation tactics’ have borne fruit: “There has been a lot of information that has come out from these interrogation procedures that the Agency has in fact used against the real hard-core terrorists. It has saved lives. Let’s not forget, these are hardened terrorists who have been responsible for 9/11.” (Washington has yet to disclose how, when, where, or how many lives were saved thanks to the United States violating the law and resorting to torture.)

Like the rest of the Bush/Cheney administration, John Brennan quickly learned to make extensive use of the astute trick that consists in placing emphasis on waterboarding[2].

Starting in 2002, the Bush/Cheney administration chose to systematically replace the term “torture” with the phrase “waterboarding and other enhanced interrogation techniques.” The clever wording draws the attention onto the relatively mild concept of waterboarding while keeping all other torture options open. Brennan, for instance, told the press several times in 2007-08 that waterboarding, specifically, is wrong; it is “inconsistent with American values; it’s something that should be prohibited,” while the myriad other methods of torture used in Bagram fail to even be alluded to, let alone discussed, documented or questioned.

Since 9/11, the buzz word “waterboarding” has done wonders for pro-torture individuals in Washington, such as John Brennan. It deflects and narrows the debate down to the point of rendering it absurd and, hence, toothless. That is partly how the Obama administration has avoided breaking away from the previous administration’s well-established support[3] for U.S.-performed torture. On 07-Jan-09, a former senior intelligence official explained to the Washington Post that Obama really “’should think twice about pledges they make now’ about the handling of terrorism detainees, ‘because [hasty, unequivocal pledges to the public] may come back to haunt [the Obama administration] in the future if some dire circumstances occur.’” One never knows. It is better to preserve the advances against the Rule of Law accomplished by Bush/Cheney. Moreover, if John Yoo is disbarred in 2009, then why would a young lawyer volunteer and be the illegality apologist next time the government needs to dramatically enhance its brute-force savagery? Blind, conformist subservience to power must be rewarded, not punished.

Brennan, as a senior advisor to George Tenet in 2002, was involved in the creation of CIA’s interrogation program. When asked about that period of his career in Oct. 2008, John Brennan pulled the usual wildcard. Waterboarding is “not going to be allowed under an Obama presidency” (23-Oct-08, Washington Times). That commitment by Brennan has most probably been kept.

Earlier this very month, Brennan did not hesitate to use that same old trick again. The “CIA Director nominee declined to call waterboarding ‘torture’ at his confirmation hearing” but had the moral integrity to call waterboarding “reprehensible"; it “should have never taken place” (WP, 07-Feb-13). The theatrics work every time. Much of the confirmation hearing thus far has gone into moot points. The New American wrote that the dialogue with the Senate Intelligence Committee has failed to involve any “effort by lawmakers to question Brennan on the legality and constitutionality” of Barack Obama’s counterterrorism policy since Jan. 2009 (22-Feb-13). On 15-Jan-09, then CIA Director Michael V. Hayden had already explained “that the Agency had stopped the use of waterboarding more than five years ago,” i.e., in March 2003 (Los Angeles Times, 16-Jan-09). But, before the Senate, nominee Brennan still philosophizes about “waterboarding” in a very talkative manner, nine years after it ceased being utilized. Senator Dianne Feinstein was correct on 03-Feb-13 when she called John Brennan’s obstinate silence-and-obfuscation attitude during the confirmation hearings “an insult to the intelligence of the American people.”

Brennan made a candid comment in a 07-Mar-08 interview with National Journal: “Even though people may criticize what has happened during the two Bush administrations, there has been a fair amount of continuity. A new administration, be it Republican or Democrat—you’re going to have a fairly significant change of people involved at the senior-most levels. And I would argue for continuity[4] in those early stages. You don’t want to whipsaw the [intelligence] community. You don’t want to presume knowledge about […] why things are being done the way they are being done.”

The Obama administration’s handling of 2002-03’s infamous ‘torture memos’ is an instructive example of how John Brennan promoted “continuity in the early stages” of his boss’ first term. By blocking the condemnation of the pro-torture memoranda authored by UC Berkeley’s John Yoo, Brennan and Holder prevented the break from the Bush years Obama promised during his 2008 campaign.

During the last months of the Bush/Cheney administration, calls for the prosecution and disbarment of John Yoo and Jay Bybee gained momentum as a result of popular pressure. An internal Justice Department’s Office of Professional Responsibility investigation concluded in late 2008 that Yoo and Bybee committed ethical violations in their authoring of the ‘torture memos’ and that they should be investigated by their respective state bars.

The late-2008 conclusions were not released to the public by the DoJ’s Office of Professional Responsibility. On the last full day of Bush in the White House, then Attorney General Michael Mukasey sent an internal letter to H. Marshall Jarrett, the head of the DoJ’s watchdog body. The 19-Jan-09 letter “shredded OPR’s initial Draft Report and the process by which OPR’s preliminary conclusions about ethical misconduct were reached” (20-Feb-10, the National Review)[5].

As of 20-Jan-09, the in-coming Obama administration effectively had the choice between honoring its campaign promises and pursuing the Bush/Cheney administration’s effort to maintain U.S.-performed torture in a gray area and undermine the Justice Department’s Office of Professional Responsibility. The Obama administration—thanks in great part to John Brennan acting as a driving force in favor of “continuity” in the matter of torture—opted for the latter.

Barack Obama’s Attorney General Eric Holder immediately replaced Jarrett with Mary Patrice Brown as the head of DoJ’s watchdog. Brown’s findings were now much hazier and weaker than under Marshall’s. Those mild, shoddy conclusions were not released. Instead, “Associate Deputy Attorney General David Margolis, a career official” was asked to review both the Bush-era legal memos on interrogating terror suspects and their review by the Justice Department’s Office of Professional Responsibility. Margolis’ report criticized not the ‘torture memos’ but the work of Jarrett and Brown. “Yoo and Bybee, who [Margolis] says made legal errors but did so in good faith, out of honest legal analysis, and in the ethical service of their clients in the executive branch at a time of war” (WSJ, 22-Feb-10, emphasis added).

A year into Barack Obama’s firs term, “vindication of John Yoo and the other Bush attorneys” supporting the use of U.S.-performed torture in 2002-03, had been achieved by Obama-Brennan-Holder. Brennan’s pro-torture “continuity” was protected; the transition couldn’t have gone more smoothly. Eric Holder continued the work of his predecessor.

John Brennan’s profound inability to comprehend the concept of Rule of Law has been particularly toxic as it has combined with Barack Obama’s seemingly irrepressible penchant for outsized scale when it comes to impunity and clandestine operations (assassination campaign; rendition; unconditional support for Qatari-Saudi terrorism; etc.).

It might be John Brennan’s perceived mission to promote counterterrorism “continuity” with the brazen illegality introduced by Bush/Cheney in the years 2001-04, when the nominee was the CIA’s number-two person, under George J. Tenet. The general population needs the exact opposite however. It is time to put the brakes on the ongoing attack on legality, constitutionality and accountability. Brennan’s lawless line of “continuity” must be broken now.

One means of sending that signal to Washington is to contact representatives and protest Brennan’s nomination to CIA directorship.

~ Jalel Harchaoui.

[1] In the first months of 2008, Obama, the candidate, was perceived as a peacemaker in contrast with McCain’s and Clinton’s alleged greater experience in world affairs. “Obama’s taken a lot of hits over his alleged foreign-policy inexperience—most notoriously from fellow-Democrat Hillary Clinton, who suggested in a TV ad [premiered on 29-Feb-08] that he was the wrong man to answer the phone at 3 a.m. during a crisis” (Newsweek, 12-Apr-08). Until Obama won the primary race, Brennan’s job was to mitigate that image of being too soft by airing openly his own super-hawkish approach to “counterterrorism” in the media. During that period, Brennan propounded his end-justifies-the-means beliefs in no ambiguous terms. Not just regarding torture, but across the board. For instance, in early 2008, the Foreign Intelligence Surveillance Act program was, under Bush, expanded to include interception of digital communications. When asked whether telecommunications companies ought to be given retroactive protection against being sued for giving away their customers’ private information to the U.S. government on a warrantless basis, Brennan answered yes. “I do believe strongly that [telecoms] should be granted that immunity” (07-Mar-08, National Journal).

[2] Waterboarding is a centuries-old technique involving water poured into the nose and mouth of the suspect so as to create a sensation of drowning.

[3] On 15-Jan-09, “outgoing CIA Director Michael Hayden offered a spirited defense of […] his organization[’s] controversial interrogation techniques,” which are not defined. Furthermore, “Hayden […] expressed opposition to proposed legislation that would require CIA officers to follow the U.S. Army field manual, which does not permit many of the techniques used in the past by the CIA” (WP, 15-Jan-09). When John Yoo issued his legal opinion on 01-Aug-02 as a member of the DoJ’s Office of Legal Counsel, the 35-year-old lawyer determined that waterboarding was not considered torture since it did not result in “death, organ failure, or impairment of bodily function.” It follows that to rape a suspect is not torture. Nor are many other sadistic practices used secretly in U.S. off-shore facilities such as Bagram and Guantánamo. The John Yoo rationale also spawned the practices employed as a matter of policy in many Iraqi prisons, like Abu Ghraib in 2003-04.

[4] The doublespeak is interesting. Brennan never made his support for “continuity” a secret. Meanwhile, Obama, on 06-Jan-09, announced on Fox News’ Special Report with Bret Baier, “What you’re […] going to see is a team that is committed to breaking with some of the past practices and concerns,” talking about Leon Panetta prevailing over John Brennan as his Director of Central Intelligence.

[5] In his letter’s conclusion, Mukasey reminded the investigator of “the possibility that […] additional deaths [of Americans] could be avoided” and of “the absence of any reason to believe that these OLC lawyers were acting in anything but good faith.” Speaking of “good faith,” no one with a shred of common sense can take this dismissive letter seriously. Mukasey had been U.S. Attorney General since 09-Nov-07 and never found the time to look into the Office of Professional Responsibility’s findings or successive drafts. Suddenly, on his last day in office, the Attorney General notices that “a recommendation of disciplinary actions” is inherently incompatible with “the unprecendented circumstances [of the 9/11 attacks and] the catastrophic loss of life suffered by the country” on that day (Mukasey, 19-Jan-09). There was no way of spotting that basic obstacle to the Office of Professional Responsibility’s effort for over 14 months in office, until a few hours prior to leaving the Department.