Blog No. 55 The 113th Congress RIP (With Reflections on the CIA and the Omnibus Spending Bill)

Few will mourn the passing of the 113th Congress. Senator Joe Manchin no doubt spoke for many when he said “Thank God! It’s over.” Still, Congress ended not as some expected, with only the whimper of lame ducks, but with a pair of modest bangs. The first bang was the release by a Senate Committee of its long-awaited (and in some cases, perhaps, dreaded) report on the interrogation techniques employed by the CIA following 9/11. The other bang was provided by the passage of a $1.1 trillion spending bill over opposition from the more extreme elements of both parties. Further bangs will doubtless come in the next Congress, but what they will turn out to be remains to be seen. In the meantime, however, we offer some thoughts on the work of Congress in the final weeks of 2014.

A program of using brutal interrogation methods by the CIA had been previously disclosed and widely reported on long before recent issuance of reports (Majority and Minority) by the Senate Select Committee on Intelligence chaired by Senator Diane Feinstein. The Majority Report provided many additional details of the program and went on to argue that the CIA had not been candid in reporting the program to Congress, the Justice Department and even to President Bush. Moreover, the Report asserted flatly that the CIA’s program of Enhanced Interrogation Techniques (EITs or, to some, simply torture) had been ineffective.

The only statement that can be made with certainty about the Majority Report is that it was not definitive and will not end the debate as to the morality, legality and effectiveness of the EITs. The Majority Report was signed only by the Democrats on the Committee and the Republicans filed a separate Report of Minority Views which undertook to rebut the Majority Report in many particulars. In addition, three former Directors of the CIA and three other former CIA officials published an op-ed piece in The Wall Street Journal stoutly defending the CIA program and touting its effectiveness as having “prevented mass casualty attacks, saving American and Allied lives.” The Wall Street Journal also published a detailed legal analysis  by former Attorney General Michael Mukasey undertaking to show that the EITs were not torture and did not violate either domestic or international law. Among the points made by Mukasey:

[If Senator Feinstein] is looking for a “common meaning” of torture, how about something like a procedure to which no rational person would submit voluntarily? More journalists have tried the experience of being waterboarded than terrorists were subjected to it. That wouldn’t be the case if, for example, we were talking about needles under the fingernails.

Former Senator Bob Kerrey, a Democrat and a former member of the Senate Select Committee, decried the partisanship of the Majority Report:

When Congress created the intelligence committees in the 1970’s, the purpose was for people’s representatives to stand above the fray and render balanced judgments about this most sensitive aspect of national security. This committee departed from that high road and slipped into the same partisan mode that marks most of what happens on Capitol Hill these days.

As pointed out by Senator Kerrey and others, the credibility of the Majority Report was seriously undermined by the fact that, despite its review of voluminous documents, the Committee had declined to interview a single one of the participants.

Finally, a Washington Post-ABC News poll found strong public support for the CIA’s methods. As reported in The Washington Post:

By a margin of almost 2 to 1 — 59 percent to 31 percent — those interviewed said that they support the CIA’s brutal methods, with the vast majority of supporters saying that they produced valuable intelligence.

In general, 58 percent say the torture of suspected terrorists can be justified “often” or “sometimes.”

It is not clear what the Senate Committee hoped to achieve by publication of its report. As we have noted, the essential elements of the program were already well known, and the use of EITs had been suspended during the Bush administration and formally ended by the Obama Administration. At the same time, the Obama Justice Department had ruled out prosecution of anyone who authorized or administered the EITs. Finally, the Committee Report departed from customary practice by making no recommendations.

Scathing as the language of the Majority Report was, it will probably not categorically prevent the use of any and all EITs in the future. Even the language of President Obama’s Executive Order formally ending the CIA program had left room for some flexibility, by requiring the CIA to use only the 19 interrogation methods outlined in the United States Army Field Manual on interrogations but adding the loophole”unless the Attorney General with appropriate consultation provides further guidance.”

Despite its flaws, the Majority Report may raise the bar for future approval for EITs and perhaps that is a good thing: we do not share former Vice-President Cheney’s apparent enthusiasm for such techniques. On the other hand, we are wary of a blanket prohibition seemingly supported by Senator McCain (who enjoys unique credibility on the subject). We are simply not in a position to resolve the debate over whether EITs are effective; the debate has credible voices on both sides and for the present we are forced to assume that they are, or may be, effective in at least some instances. Given that assumption, we are reluctant to rule out the use of every form of EIT (not all of which are equally brutal) under any and all circumstances. Bernard Goldberg has presented a thoughtful analysis suggesting hypotheticals in which use of EITs might be morally justifed or even demanded. He concluded with a summary that largely reflects our feelings: “I’m against so-called enhanced interrogation— but only 99 percent of the time. For the 1 percent of the time it would save lives, count me as a supporter. That, to me, is the morally superior position.” The difficulty, of course, may be in knowing that whether you are truly dealing with that 1% situation.

Perhaps the best that can be done is to adopt procedures stringently designed to assure that if EITs are used, it will be only for compelling reasons and under narrow and clearly defined circumstances. For example, use of EITs on a particular individual should depend on clear and convincing evidence (and a determination by the President) that the individual has information required to avert or mitigate an imminent peril, and that such information cannot be obtained by other means. It would also be well to require that, if EITs are ever authorized, they be employed under direct supervision that includes participants from outside the agency doing the interrogating.

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From most perspectives, the $1.1 trillion spending bill was not a pretty thing, a compromise cobbled together to avoid a government shutdown. As Paul Samuelson, pointed out in The Washington Post, the bill failed to resolve, or even address, the fundamental fiscal disorder which has resulted from the absence of any agreement on taxes and entitlement reform:

Both parties have taken the path of least political resistance. They have heaped spending cuts onto the roughly one-third of the budget devoted to so-called “discretionary” programs — defense and everything from roads to the FBI. (The other two-thirds of the budget consist of entitlements and interest on the debt.) These discretionary programs have been subject to year-to-year reductions that, cumulatively, are devastating. Measured as a share of national income, the reductions are about a third from 2010 to 2024.

Still, the bill did avoid the embarrassment of a shutdown. Moreover, any action resulting in simultaneous defeats for Elizabeth Warren and Nancy Pelosi as well as Ted Cruz and Rand Paul (all of whom voted and spoke against the bill) cannot be all bad. (Ironically, however, Senator Warren’s unsuccessful venture seems only to have enhanced her stature among the “Progressive” wing of her party.)

That is not to say that the points raised by the dissenters were entirely without merit—only that they did not merit blocking the bill and inviting the chaos that would have ensued. Senators Cruz and Paul opposed the bill in protest of President Obama’s executive action on immigration. We too have objected to the President’s action, but have noted that as a practical matter there is likely little that Republicans can – or should attempt to – do about it. (The omnibus bill funded the Department of Homeland Security only through the end of February so as to present another opportunity at that time for budgetary mischief inspired by Obama’s immigration initiative.) We are hopeful that cooler heads will again prevail in February.

Opposition to the spending bill from the Democratic side focused on a provision repealing a section of the Dodd-Frank law that requires banks who deal in risky derivatives to do so in a separate entity that does not enjoy taxpayer support in the form of deposit insurance. Frankly, that objection on its face appears to make a certain amount of sense and we have not heard a coherent and convincing argument in rebuttal. (If any readers of are aware of grounds for a rebuttal, we would invite you to bring them to our attention.) Nevertheless, opponents of the spending bill appeared to exaggerate considerably the importance of preventing a repeal of the section in question (sometime known as the Lincoln Amendment). As reported in Time magazine:

The best argument for not freaking out about the repeal of the Lincoln Amendment is that it wasn’t nearly as strong as its drafters intended it to be. The final version had loopholes the size of Montana. For example, while the Lincoln Amendment was intended to lasso allrisky instruments, by the time all was said and done, it really only applied to about 5% of the derivatives activity of banks like Bank of America, Citigroup, JPMorgan Chase, and Wells Fargo, according to a 2012 Fitch report.

Objections were also raised on the left and on the right to a provision of the bill raising the amount that individuals can contribute to political parties. Opposition from the left was a reflexive reaction to any loosening of campaign finance regulations. From the right (including the inimitable Rush Limbaugh), came a concern that providing more money to political parties would dilute the influence of outside groups such as the tea party. From our perspective, the latter development, if realized, would be all to the good. As The Wall Street Journal observed, there are sound reasons for strengthening party organizations:

As party organizations have withered, they’ve also outsourced more of their core activities—opposition research, voter-list management—to outside groups that often have more narrow political interests. The result has been more political factionalism and special-interest messaging.

For all of their excesses, the main parties are typically bigger-tent operations that try to unite candidates around common political themes. Stronger parties can build coalitions that make it easier for the victors to govern after elections.

As this is being written, the focus of the pundit class has already shifted from the Congress to the announcement by Jeb Bush that he is actively exploring a run for the Presidency and to the announcement by President Obama of a major shift in our relationship with Cuba. We will address those topics in separate blogs very soon.

2 thoughts on “Blog No. 55 The 113th Congress RIP (With Reflections on the CIA and the Omnibus Spending Bill)

  • My objections to the use of EIT’s are two: first, their use sullies us, and second, I doubt that they produce accurate and useful information.

    On the first point, General Washington, during the darkest days of the Revolution, refused to treat British prisoners with anything less than basic respect. At no point in our “War on Terror”, were we close to the desperate situation Washington faced: he was perilously close to losing a war and being subject to hanging for treason. If he could resist the temptation to torture then, we can now.

    I have heard senior officials say that EIT’s produced useful information that saved lives. While I do not doubt the sincerity of these officials, I doubt the accuracy of their statements. If I were subject to torture, I would do or say anything, true, half true, totally false, to make the pain stop and whoever heard what I said under torture would have no way to distinguish.

  • Although this may be difficult to apply to US politics, Jack Welch of GE once said, “There is little or nothing you can do about yesterday. Learn from it but don’t waste a moment on it. Get on with tomorrow.”

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