by John Yoo     •     Daily News 9:11 attack twin towers terrorism

The release of a Senate report on Bush-era interrogation policies could have prompted an informed, responsible debate over intelligence and the war on terror. But not the report that saw the light of day Tuesday.

Because of fundamental mistakes made at its very birth, Sen. Dianne Feinstein’s accounting offers a dispiriting, partisan attack on American intelligence agencies at a time when we need them more than ever.

Bizarrely, Feinstein and her staffers refused even to interview the very CIA officials who ordered and carried out the program in question. Because Republicans saw where the train was headed, they refused to participate in the review.

The slanted approach to the investigation sadly colored its conclusions — which are questionable, to put it charitably.

The report baldly states that the interrogations yielded no valuable intelligence that would not have been obtainable otherwise, and that the CIA lied to the White House, the Justice Department and Congress about its activities.

These critical points are fiercely disputed by the intelligence community, past and present.

As a Justice Department lawyer who worked on the legality of the interrogation methods in 2002, I believed that the federal law prohibiting torture allowed the CIA to use interrogation methods that did not cause injury — including, in extraordinary cases, waterboarding — because of the grave threat to the nation’s security in the months after the 9/11 attacks.

I was swayed by the fact that our military used waterboarding in training thousands of its own soldiers without harm, and that the CIA would use the technique only on top Al Qaeda leaders thought to have actionable information on pending plots.

The United States had just been attacked, with the loss of 3,000 civilians lives and billions in damage; intelligence indicated that more attacks were coming, perhaps using weapons of mass destruction; we knew little about Al Qaeda, and believed only interrogations could reveal the full extent of their plans.

CIA officers have said that they used waterboarding on only three terrorist leaders, and that the interrogations yielded valuable intelligence on Al Qaeda.

I would want to know if they lied to me and other Bush administration officials, as the Feinstein report asserts. If it turned out that the facts on which I based my advice were wrong, I would be willing to change my opinion of the interrogation methods. As economist John Maynard Keynes reportedly said to a critic, “When my information changes, I alter my conclusions. What do you do, sir?”

But given its profoundly partisan tenor and fiercely disputed details, I have significant reason to doubt this report’s veracity.

Take, for example, an absolutely critical fact related to the utility of enhanced interrogation tactics — about how the U.S. tracked down and ultimately killed Al Qaeda leader Osama Bin Laden.

According to several former CIA directors, harsh interrogations and waterboarding of Al Qaeda leaders such as Khalid Sheikh Mohammed allowed U.S. analysts to identify Bin Laden’s courier (he would not use electronic communications). Tracking the courier then led us to Bin Laden’s hideout.

The Feinstein report alleges that other sources had already provided the name of the courier independently.

But the CIA’s rebuttal — signed by Obama’s appointee Director John Brennan — makes clear this information “was insufficient to distinguish him from many other Bin Laden associates until additional information from detainees put it into context and allowed CIA to better understand his true role and potential in the hunt for Bin Laden.”

The CIA is right. While it may have had the courier’s name, it had hundreds if not thousands of possible Al Qaeda agents in its files. Only the interrogations pinpointed his importance.

Police may know the names of thousands of petty mobsters; they need more to figure out who make up the inner circle.

This release marks a new low in congressional oversight of intelligence. In both the 1975 Church Committee and 1987 Iran-Contra investigations of intelligence scandals, Republicans and Democrats cooperated to conduct a thorough, fair inquiry that settled the factual record and laid the groundwork for significant reform.

A credible review in this case would have involved both political parties. It would have given CIA officials an opportunity to be heard. It would have questioned key officials under oath.

The Feinstein report did none of this. Worst, it risks undermining the ability of our intelligence agencies to protect the nation at a time when threats abroad are rising, not falling.

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Yoo is a professor at Berkeley Law School and scholar at the American Enterprise Institute. He served in the Justice Department’s Office of Legal Counsel from 2001-03, where his work included reviewing the legality of CIA interrogation methods. 

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