by hilzoy
In the first part of this series, I described the torture of Jose Padilla, and started to answer the question: why is this happening? I described the “mosaic theory” of intelligence gathering — the view that one should try to collect tiny pieces of intelligence and fit them together into a bigger picture.
As I said in that post, the mosaic theory is fine in itself, but it does provide a reason to hold people indefinitely, since one can never know when they might produce some tiny snippet of information whose importance they might not even be aware of. And I quoted an FBI affidavit that suggested that the government regarded the mosaic theory in that way.
Nonetheless, the FBI’s use of the mosaic theory has always been limited. The FBI operates within the United States, and both the information it gathers and its treatment of prisoners, have to stand up in court. For this reason it can neither detain prisoners indefinitely, nor violate their rights while they are in custody.
The CIA is in a different situation entirely. It normally operates outside the US, and its goal is normally not criminal prosecution but intelligence gathering. For this reason it is not subject to the same strictures as the FBI or domestic police forces. It does not need to justify its detention of people to US courts, or to interrogate them in ways that would stand up in a court of law. It would be surprising if its interrogation procedures did not reflect these differences.
However, there are practical limits on what the CIA can do. One of the most important, for our purposes, is that it is hard for it to detain prisoners indefinitely. It would have to do so outside the US in order to avoid the requirements of the US legal system, and this means that its detentions either exist at the sufferance of other governments, whose continued acquiescence cannot be counted on, or rely heavily on secrecy, which cannot be counted on either. In either case, it’s hard to see how the CIA could count on being able to detain people — especially large numbers of people — indefinitely. Possibly the CIA has detained some people for long stretches of time, but these would have to be a small number of exceptional cases.
This means that the CIA has also had to operate within certain practical limits. I imagine that there are many fewer limits on what the CIA can do in a particular case than there are for the FBI — to my knowledge, the President cannot order the FBI to assassinate someone, for instance. But the CIA cannot detain any significant number of people for long stretches of time without risking discovery and the compromise of its operations. And that means that, for very different reasons, neither our domestic law enforcement agencies nor our intelligence services could seriously consider the possibility of detaining people in perpetuity.
After 9/11, however, the administration decided that this had changed, and it came up with several ways of detaining people indefinitely: prisons in Afghanistan, Guantanamo, and elsewhere, and the idea of designating people as ‘unlawful enemy combatants’ to avoid both US law and the Geneva Conventions. In so doing, it created enough of a legal rationale that agencies that had always seen themselves as bound by the law had some reason for thinking that they could go along with things like the indefinite detention of a US citizen against whom no charges had been filed, and who had no access to counsel.
This created a possibility that neither domestic law enforcement agencies nor the intelligence community had needed to take seriously before: the possibility of detaining large numbers of people for as long as necessary, without having to answer to the US courts, foreign governments, or anyone else. I suspect that the fact that they had not needed to take this possibility seriously before meant that they had not thought it through seriously: earlier, the question how one would handle the indefinite detention of large numbers of people would have been just idle speculation.
Moreover, the point of this detention, after 9/11, was partly to get dangerous people into custody and off the street, but also, and importantly, to gather intelligence. And this fact, I think, meant that the interrogations used on detainees would have been based on practices used in the intelligence community, not domestic law enforcement. This is the kind of interrogation that the intelligence community has always done, and it stands to reason that its procedure would have been adopted. (Anyone remember all those news stories about the FBI scrambling to adjust to the post-9/11 world of intelligence gathering as opposed to law enforcement?)
So: what were those CIA procedures?
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