00;00;00;21 - 00;00;35;19

Jonathan Hafetz

Hi, I'm Jonathan Hafetz and welcome to Law on Film, a podcast that explores the rich connections between law and film. Law is critical to many films. Films, meanwhile, tell us a lot about the law. In each episode, we'll examine a film that's noteworthy from a legal perspective. What legal issues does the film explore? What does it get right about the law and what does it get wrong?

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Jonathan Hafetz

How is law important to understanding the film? And what does the film teach us about the law, and about the larger social context in which the law is embedded? Our film today, or I should say, our films today, are Zero Dark 30 from 2012 and the report from 2019. Each film discusses an aspect of the US response to 911.

00;01;05;20 - 00;01;34;24

Jonathan Hafetz

Zero Dark 30 talks about the hunt for an eventual killing by the United States of Osama bin laden. The report talks about the investigation into and report published on the U.S. torture program. Although both films address the torture program in multiple different ways. Our guest today is Karen Greenberg. Karen is the director of the Center on National Security at Fordham University School of Law.

00;01;34;26 - 00;02;09;01

Jonathan Hafetz

She's an expert on national security, terrorism, and civil liberties. She's the author, most recently, of Subtle Tools The Dismantling of American Democracy from the War on Terrorism to Donald Trump, which was recently released in paperback and is published by Princeton University Press. She's also the author of Rogue Justice The Making of the Security State by Crown Publishing in 2016, and The Least Worst Place Guantanamo's First 100 days, published by Oxford University Press in 2009.

00;02;09;03 - 00;02;38;19

Jonathan Hafetz

The Least Worst Place was selected as one of the best books of that year by The Washington Post and Slate.com. Additionally, Karen is the editor or coeditor of multiple books on detention, torture, and the overall response to nine over 11. Her work has been featured in leading publications including The New York Times, The Washington Post, the L.A. times, and Tom's Dispatch, and she's often appears on major news channels.

00;02;38;22 - 00;02;52;26

Jonathan Hafetz

Karen is a permanent member of the Council on Foreign Relations. It's a honor and a privilege to have her here on law and film to talk about these two movies, Zero Dark 30 and The Report. Welcome, Karen.

00;02;52;29 - 00;02;55;01

Karen Greenberg

Thank you for having me, John.

00;02;55;03 - 00;03;17;06

Jonathan Hafetz

So, Karen, I think it could be said that the two films, Zero Dark 30 and The Report are in many ways in dialog with each other, and they offer dueling accounts of the events after what really did the response to 9/11 by the United States? In what ways do the films offer competing accounts?

00;03;17;08 - 00;03;43;12

Karen Greenberg

Yeah, I think that's right. I do think they're the kind of one side versus the other side. And basically what the both these films want to talk about is, it is whether or not torture worked. And in Zero Dark 30, the argument is that torture enabled a pivotal moment in the war on terror, namely the killing of Osama bin laden.

00;03;43;15 - 00;04;16;00

Karen Greenberg

And the argument is that it was information that came out during sessions with using these enhanced interrogation techniques by which, the United States learned of the whereabouts of bin laden, notably by, tracking a courier so that that's what Zero Dark 30 argues, which is essentially to say, yes, this was really important thing that was important and promoted national security interests and not just an important technique, but perhaps an essential technique.

00;04;16;02 - 00;04;58;23

Karen Greenberg

The report comes in on the other side, many years later, and argues that and follows the release of the Senate select Intelligence Committee, which Dianne Feinstein headed, and a multi year investigation into what actually happened in the rendition detention and interrogation program and what happened at those black sites and going through millions, I think, pages of documents to sort of come up with the narrative, the narrative they provide is that, in fact, torture did not work, by which they mean that they, they there was no essential national security.

00;04;58;23 - 00;05;28;02

Karen Greenberg

Ehm, satisfied by this program. And so this each one of them sort of solidifies the arguments, personalities, agencies around the discussion of should the country what do we think about this program that the United States mounted in the wake of the attacks of 911 and, so it sort of solidifies the debate for you by watching these, two, two films.

00;05;28;02 - 00;05;34;04

Karen Greenberg

So, you know, that's essentially how they try, to debate one another.

00;05;34;06 - 00;06;02;03

Jonathan Hafetz

Yeah. And there's even a moment in the report when the Zero Dark 30 is appears on a screen. So there's like a direct reference in one film to the other. So the report is very self-conscious about, Zero Dark 30. And the larger events it depicts. So, and Zero Dark 30, the film was widely criticized, I personally think, with with good reason for its depiction of torture.

00;06;02;03 - 00;06;26;15

Jonathan Hafetz

And, let me read to you one assessment from Jane Mayer, who is one of the key chroniclers of these events and whose work I know we both admire, writing in The New Yorker and what Jane says about Zero Dark 30 is the following. It doesn't capture the complexity of the debate about America's brutal detention program. It doesn't include a single scene in which torture is questioned.

00;06;26;17 - 00;06;53;20

Jonathan Hafetz

Even though the Bush years were wracked by internal strife over just that issue. Again, not just among human rights and civil liberties lawyers, but inside the FBI, the military, the Justice Department and the CIA itself, which eventually abandoned waterboarding because it feared, correctly, that the act constituted a war crime. None of this ethical drama seems to interest the film's director, Kathryn Bigelow.

00;06;53;23 - 00;07;22;19

Karen Greenberg

I think that's fair. I think that, I think there are a couple of things going on. I mean, this film is made much earlier in the evolution of, the United States understanding, the response to the war on terror. I think it is very much in the, the, wants to make the claim to, to dramatize, how these enhanced interrogation techniques, these torture techniques led to bin laden and I.

00;07;22;19 - 00;07;45;06

Karen Greenberg

But I think it's it's a it's a mindset. It's more like a documentary in some ways to me. And a documentary not about the story she's telling because much of it is, factually not correct. But, a documentary in terms of revealing a mindset which felt that, well, why would we need to question the ethical, legal and other aspects of this?

00;07;45;07 - 00;08;12;24

Karen Greenberg

This was about keeping the country safe and a lot of ways that is the erroneous course that the that the country went on beginning in the immediately after 911 and continuing, and continuing for, for, for many years. And so I think that I think that that's how we need to understand this film, which is as an illustration of a sort of mindset that was not open to debate, that was not open to restraint.

00;08;12;26 - 00;08;23;18

Karen Greenberg

And that was not open to well, let's talk here about actually, domestic, international and in some cases, military law. It wasn't on the table.

00;08;23;20 - 00;08;55;04

Jonathan Hafetz

I mean, and it does, as you suggest, I think, come down on the side of, of torture working. There's a quote from Dan the interrogator from Zero Dark 30. Not that Daniel Jones will talk about who's the investigator in the report, but Dan saying essentially that, everyone breaks it's biology. And so I guess the way torture is depicted is as a necessary or part or byproduct of the overriding response.

00;08;55;04 - 00;08;58;04

Jonathan Hafetz

And I 11 and searched for bin laden.

00;08;58;06 - 00;09;31;05

Karen Greenberg

Yeah. And look, when you're a country like the United States that's been, been attacked in this way, it it shows a sort of failure of, the techniques of sharing information, of understanding, of knowing what the threats are. And I you kind of see this as a way, the reliance on these techniques and, and this brutality as a way of not trusting traditional means of going about things which would be forms of interrogation that were lawful.

00;09;31;07 - 00;09;43;15

Karen Greenberg

And and there was just a panic and a willingness to throw away so many of the more cherished laws that had, defined the country prior to that.

00;09;43;18 - 00;10;38;04

Jonathan Hafetz

And the central character, Amaya, who's played by, Jessica Chastain, is, I think, a composite but modeled at least in good part on a real life person, a former CIA agent. Alfreda Frances, Piccolo, who became chief of the bin laden station, or Alec Station, which was a standalone unit dedicated to tracking, bin laden. Well, the real life Maya Borkowski has been dubbed by Jane Mayer as the unidentified queen of torture, who was responsible for the rendition not only of suspected terrorists like KSM, but other individuals like Khalid, al-Masri and Maharajah who were swept up in the secret detention rendition interrogation process on flawed evidence and were effectively innocent victims of

00;10;38;04 - 00;10;46;20

Jonathan Hafetz

the torture program. So what do you make of the Mia character, who's really the window in which we see the events of Zero Dark 30 playing out?

00;10;46;22 - 00;11;28;14

Karen Greenberg

You know, it's so, so interesting because, yes, it's supposed to be afraid of because, as you said, who? Later married Michael Scheuer, formerly head of the CIA division tasked with tracking Osama bin laden. And but she's actually they say that, you know, she's also a composite. And I think it's valuable to view her in some ways as a composite of a lot of different people or attitudes, one of which is that they show her throughout, Zero Dark 30 sort of looking a little suspiciously or awry at or, or even a bastard at the techniques that are being performed in front of her eyes as she watches these, these brutal interrogations take

00;11;28;14 - 00;11;41;08

Karen Greenberg

place and then sort of her, her, you know, commitment to whatever it takes to get, bin laden. Do you think that's a fair assessment of how kind of how we see her character in the film?

00;11;41;10 - 00;11;59;10

Jonathan Hafetz

Yeah, I do, I mean, I think there are moments, like the former moments that you point to where she's looking, a bit a little bit suspicious, hasn't it, about the techniques. And I think, you know, and at the end of the film, after bin Laden's kill, it's hardly a hardly a spoiler alert. She shed some tears.

00;11;59;10 - 00;12;24;08

Jonathan Hafetz

Right. Although I think it was. Maybe it was a you know, my sense is it was a choice by Bigelow not to play up the internal conflict too much, I guess. I don't think there was that much soul searching on the part of Maya or Borkowski. Whatever you want to say about the techniques that were being used. There was a little bit of nervousness, but then I feel like she was in, all the way.

00;12;24;11 - 00;12;44;23

Karen Greenberg

Yeah, yeah, hundred percent. I mean, I think it's not like I think it was more like a little bit of surprise, you know, like, what's what is this? You know, a little bit of curious surprise. But then again, this film is about the effect of the effectiveness, or so it claims, of torture and the ultimate goal of finding and killing bin laden.

00;12;44;25 - 00;13;10;27

Jonathan Hafetz

Right. Yeah, I think that's right. And everything is subsumed to that. And I think unfortunately, they don't really do justice to the torture issue. And indeed, I think misrepresented in a lot of ways. One of the other storylines of Zero Dark 30, which I think is an important one, is the way that the bin laden unit had become, almost marginalized or deprioritized over time.

00;13;10;27 - 00;13;47;26

Jonathan Hafetz

There's, the CIA station chief who's played by Kyle Chandler, says, you know, in response to Maya and her questions about or her demands to follow up and track down bin laden. Quote, he says, I don't care about bin laden. I care about the next attack. And so there's an interesting dynamic here about the where the kind of what what arguably should have been the main focus of the post 911 response finding tracking down the leader of al-Qaida kind of falls by the wayside, as the larger bureau ocracy of the war on terror is ramped up.

00;13;47;29 - 00;14;19;01

Karen Greenberg

Right. And again, I think that goes to the earlier point about, you know, the tremendous shock to sort of the national security system about the fact that 911 never happened. And so the idea of preventing further attacks becomes, you know, the sort of focal point not just of the Central Intelligence Agency, but also the FBI and of the national security apparatus writ large as it continues to grow justified by the idea of preventing another attack after 911.

00;14;19;03 - 00;14;30;08

Jonathan Hafetz

Right. But within the FBI, there was certainly significant opposition to the techniques. People you know well, like Ali Soufan would have said, that's our goal, too. But you're going about it the wrong way. And.

00;14;30;08 - 00;14;52;07

Karen Greenberg

Oh, yeah, yeah, no I'm not. What I meant was, you know, the focusing on preventing another attack, right. Which is one thing which is and you're right. So the interrogations often are, are about, you know, what's the next attack. And that was one of the reasons given for many of, of these, those detained and taken to the CIA, black sites where we to say, look, they know what the next attack is going to be.

00;14;52;07 - 00;15;05;06

Karen Greenberg

They know where people are hiding that have the means and the desire to to cause the United States harm. So to your point, it's very much it is about intelligence collecting about the future as well as finding bin laden.

00;15;05;09 - 00;15;31;09

Jonathan Hafetz

And so in a sense, Maya becomes the sort of person who has this kind of keeps this goal of finding bin laden and tries to, you know, keep it to the forefront and not allow it to get, lost as she almost is set in a little bit in opposition to a larger, bureaucracy. The overall priority is the Central Intelligence Agency and other government actors, and she's the one who, so to speak, keeps her eye on the prize.

00;15;31;11 - 00;15;54;28

Jonathan Hafetz

One interesting thing we think about Zero Dark 30. It was released in 2012. So it's one year after US killed bin laden in 2011. And a way Zero Dark 30 could have been a film that bookended the era, right? It starts with the 9/11 attacks, traces the hunt for bin laden, the leader of al-Qaida. And then it ends with his death.

00;15;55;00 - 00;16;16;25

Jonathan Hafetz

But now 11 years have passed since the film's released, and rather than the end of a period, it just seems like one chapter, one data point. I'll be at a fairly significant one, but one of many data points in what's become a seemingly endless war on terror that continues. So why? Why is that? And what happened?

00;16;16;27 - 00;16;46;15

Karen Greenberg

That's actually interesting. So yes, we are still engaged in this ever expanding geographically in terms of names of groups who are on terror. But it is a different war on terror than we had in the immediate aftermath of 911, when the events of Zero Dark 30 are taking place and so let me just explain, explain a little, which is that the the focus of United States policy after 911 was, yes, bin laden, al-Qaida, those who supported them.

00;16;46;21 - 00;17;16;11

Karen Greenberg

And over time, it really has changed. And the the removal of bin laden actually was important. And it's also the sort of weakening of al-Qaida which after bin laden had didn't have a central point, a central figure. And many writers have argued recently and documented how much bin laden really was so isolated prior to that, anyway, that the sort of central city of al-Qaida, the hierarchical style of, structure of al-Qaida, had changed over the years.

00;17;16;11 - 00;17;43;19

Karen Greenberg

But the most important thing that's happened about al-Qaida over the years is that it has returned to sort of very locally focused agendas. And I mean, al-Qaida and its offshoots. I mean, all of the terrorist groups throughout Middle East, throughout Africa. It's more of a managed threat that the United States national security establishment is looking at, and its goals are not the same as the goals that bin laden brought to the table.

00;17;43;22 - 00;18;05;26

Karen Greenberg

Bin laden wanted this to be an attack on the West. Bin laden wanted to change the the local focus of the terrorist groups at the time to these, you know, the far enemy rather than the near enemy. And what's happened now is over the past decade, it is has returned to this focus on the near enemy. So there has been a change.

00;18;05;26 - 00;18;25;20

Karen Greenberg

And yes, you know, this, this war, and the authorization for war, which you and I have discussed many times, just seems ever expansive and ever, ever not rooted in time. But but there has been a shift in terms of what exactly that threat is, how it's perceived and where it's taking, where its aims for attacks are.

00;18;25;23 - 00;18;50;22

Jonathan Hafetz

That's interesting to hear you discuss that gradual, if sometimes subtle shift over time. So you've written about the Justice Department and government lawyers extensively. You're a real expert in that area as well. So with regard to the shift in the change and the conflict being different, if it exists at all as an armed conflict or a war anymore, did the Justice Department not get the memo or why?

00;18;50;22 - 00;19;16;21

Jonathan Hafetz

Because I'm seeing it from where I sit sometimes they will. You know, the Justice Department will continue in one legal filing after another to operate almost on autopilot, that the conflict against al-Qaida continues. It's a global armed conflict. It's, grave threat to the US national security. And even after the US signed a peace deal with the Taliban and the actual war in Afghanistan, in a legal sense of us versus, Taliban is over.

00;19;16;23 - 00;19;34;16

Karen Greenberg

Yeah. I mean, it's so interesting that we can't put a fine point on that and say, look, the war on terror at the post 911 War on terror is over. You know, I wish there could have been a moment where the 2001 AMF could have sunset it in juxtaposition to the withdrawal from Afghanistan in the fall of 2021.

00;19;34;19 - 00;20;00;29

Karen Greenberg

But all told, over the course of nine over 11, until maybe the Trump administration, there were there were over 600 cases brought by the Justice Department about jihadist international terrorism. We're not seeing the number, the scope or anything like those kinds of cases. Now, it really has given way to other kinds of, terrorism cases, some of them domestic, cases.

00;20;01;05 - 00;20;24;24

Karen Greenberg

But also I think the Justice Department, its national security agenda is focused on other issues. Some of them have to do with cyber security in the international realm. Some of them have to do with state actors, espionage, China, Russia, things like that. So I do think there's been an actual shift. And yes, they continue to bring cases, but not in anywhere near the the number or the breadth, the intensity.

00;20;24;27 - 00;20;38;01

Karen Greenberg

And my understanding is that there really has been a shift in terms of positions, in terms of funding and, and things like that. But I do think we're in a different era when it comes to terrorism prosecutions, international terrorism prosecutions.

00;20;38;03 - 00;20;58;24

Jonathan Hafetz

Yeah. That makes that makes a lot of sense. I mean, unfortunately, a lot of the relics and the legacies are still there, in particular the Guantanamo detention center, which figures in both films a little bit in different ways, and Zero Dark 30. Guantanamo is referred to now as a place where detainees have lawyers. And so we can't engage in torture anymore.

00;20;58;24 - 00;21;00;26

Jonathan Hafetz

We've you know, that tool has been taken away from us.

00;21;00;29 - 00;21;02;16

Karen Greenberg

Play that out a little bit.

00;21;02;19 - 00;21;11;19

Jonathan Hafetz

Even though that the policies have shifted, we still have a lot of legacies from the war on terror that are left, including the Guantanamo detention center.

00;21;11;22 - 00;21;31;05

Karen Greenberg

No, it not only do we have, we have also the authority left. I mean, we have the 2001 authority still on the books, and who knows how that it could be used and, and what kind of ever expansive ways. So there's that, which I think is a is a major point of, law and policy that, you know, it was just we authorized again.

00;21;31;05 - 00;22;01;13

Karen Greenberg

Right. And it just seems like it's just there for the use. And it's hard to take it away because it takes away powers when in essence, I think it's a very important thing it would be to to repeal the 2001 AMF and to note that. But I think your point about Guantanamo is spot on, which is that, yeah, we can pretend that we've tied up this bow and finished up this policy and moved on from the way things went off the rails legally in terms of, the CIA black sites and the interrogations and the use of torture.

00;22;01;16 - 00;22;21;07

Karen Greenberg

But the fact is, we still have the chief symbol of all of this, which is, Guantanamo and particularly at Guantanamo. What we have is, you know, that sort of highlight of the tragedy of all of this is that we still have been unable to mount a prosecution, a trial of the co-defendants in the nine over 11 case.

00;22;21;09 - 00;22;45;06

Karen Greenberg

And that's really not okay. From all the points of, moving on, which so many in both these fields talk about, you know, we're going to move on, right? We have to move on. Not resolving that case, not having it look like the United States can actually use its legal tools to adjudicate this case. When 911 was such an important and transformative moment for the country has been a disaster, and it's largely owing to the use of torture.

00;22;45;13 - 00;23;02;19

Karen Greenberg

So you have tortured witnesses, you have tortured evidence, you have you have so much that torture is compromised. But how can they they haven't been able to bring these cases. And it's a it's just the legacy of this. As you pointed to it, last to this day in extremely important ways at Guantanamo.

00;23;02;21 - 00;23;33;25

Jonathan Hafetz

That's a great point, Karen. And I think a good way maybe to shift for a minute to the report, because these kinds of criticisms of the torture program are at the center of the report. So can you talk a little bit about the Senate Select Committee on Intelligence, which was headed eventually in its key period by Senator Dianne Feinstein and Dan Jones, who was the chief investigator for this committee, which was going to look into the use of torture by the CIA.

00;23;33;27 - 00;23;58;06

Karen Greenberg

That's right. So so the idea was the Senate Select Intelligence Committee, and as you say, eventually, under the direction of Dianne Feinstein, to mount this study of what had happened. And in order to do so, they made an arrangement to have documents that were the property of the Central Intelligence Agency, shared with them in a skiff and a privately set up machines.

00;23;58;09 - 00;24;18;04

Karen Greenberg

And, and to be able to look at this massive amount of material. And that was the arrangement that was agreed to. And so it took years and years for Dan Jones, who had had some background in working with the FBI for a few years to begin to look at all of the documentation of what had happened and eventually to put together a report.

00;24;18;06 - 00;24;30;15

Karen Greenberg

So this report comes out in December of 2014. Eventually, the original draft, it was up for circulation and talking within the administration was 2012. Is that right?

00;24;30;17 - 00;24;30;29

Jonathan Hafetz

That's right.

00;24;31;06 - 00;24;54;06

Karen Greenberg

And so that just tells you how much had to go into how are we going to present this? What's why, what makes sense. But the fact is that what they decided to do eventually was not to give us the 6000 pages of the report, but instead the 500 plus pages of the executive summary, which still is somewhat eye opening, but still, there's so much that we don't know.

00;24;54;06 - 00;24;58;20

Karen Greenberg

And I mean, we could talk about more about this, the legacy of it, whether we'll ever see it.

00;24;58;27 - 00;25;23;10

Jonathan Hafetz

Let's talk about Dan Jones a little bit. He's the lead investigator. He's kind of in the mold of, Woodward, Bernstein and all the President's Men. He's pressing, trying to uncover the truth. And, and what actually happened. And he's facing all kinds of obstacles in terms of intimidation and pressure not to go forward. But he and his colleagues, he had more colleagues and assistants than they did in the movie.

00;25;23;10 - 00;25;46;14

Jonathan Hafetz

But, you know, so but, you know, persevered and produced this 6500 page report that we've only seen, you know, about 500 pages of. And maybe one day they'll publish the whole thing, but it's still an issue, and they have to get it out before the Senate switches right in the 2016. And the Democrats lose control. But they do get it out.

00;25;46;17 - 00;26;16;20

Jonathan Hafetz

One of the interesting things about film is the role that lawyers play and the and the view of lawyers, and it's a very different perception of lawyers than in Zero Dark 30 and Zero Dark 30, lawyers are viewed as an obstacle to the CIA engaging in its enhanced interrogation. Whereas in the report, the lawyers or administration lawyers, government lawyers are viewed as, enablers.

00;26;16;20 - 00;26;49;04

Jonathan Hafetz

They're the ones who help and allow the CIA to put this program in operation. So let me play a clip for you from the film. And this is a moment when a senior Office of Legal Counsel, lawyer John Yoo, and the LLC, or Office of Legal Counsel provides legal advice to the president, the executive agencies. So John Yoo, who's earned, some notoriety, explains the legality of the program to the CIA general counsel, John Rizzo, and another CIA attorney, played by Michael C Hall.

00;26;49;06 - 00;27;13;10

Jonathan Hafetz

So here's where we're at. The crime of torture, as described in section 2340, requires that the defendant in this case and interrogator intends to cause severe pain or suffering. But in this case, that's not the interrogators intent, right? The intent is to gain Intel to save American lives. But, John, what if the techniques the interrogator employs do nonetheless cause pain and suffering?

00;27;13;16 - 00;27;42;20

Jonathan Hafetz

How do we deal with that? Well, the key phrase is severe pain or suffering, but 2340 never actually defines the term severe. We found this definition in a Medicare statute, severe pain or suffering acute symptoms that place the individual in serious jeopardy and are hard to endure, meaning to constitute torture, the damage done must rise to the level of organ failure, impairment of bodily function or death.

00;27;42;22 - 00;28;13;26

Jonathan Hafetz

So basically, if someone dies, we're doing it wrong. If the president deemed it necessary to crush the testicles of a child to stop playing from crashing into a building to save American lives, there's no law or treaty that could stop it. I can make the same argument for gouging out of prisoner's eyes or dousing him with acid. In our opinion, if it provides unique intelligence that saves lives and doesn't cause any lasting harm, then it's legal for the president to order it.

00;28;13;28 - 00;28;24;29

Jonathan Hafetz

What do we mean when we say unique intelligence that couldn't have been obtained any other way? Well, there's a lot in here, Karen. So help, help us unpack what's going on in this colloquy.

00;28;25;01 - 00;29;02;04

Karen Greenberg

So there's so much that sort of contrary to itself that's in there. The first thing is, you know, what the standards they want to create for interpreting what pain and suffering would be, right? What would constitute torture? Let me just say that every time I deal with this and the John memos, I actually have to go back and read them because it's so hard to believe that these actually were Office of Legal Counsel, Department of Justice generated memos that basically said, contrary to anything your rational mind might tell you, we're going to say that these things do not constitute torture.

00;29;02;11 - 00;29;26;07

Karen Greenberg

And the interesting part is where they kind of say, well, we're talking about, you know, organ failure and all that. And wouldn't you know, that's the level that it would have to reach. But remember that the heart of what the people who designed the torture program and the techniques, Mitchell and Jessen, that they talked precisely made very clear language about what they wanted to do.

00;29;26;07 - 00;29;50;24

Karen Greenberg

And what they wanted to do was create a state of learned helplessness, which meant that they wanted to. So interfere with the stability and strength and coherence of the individuals they were interrogating, that they would feel like they had no choice, because they were completely had no control over anything anymore. And the only thing they could do was to talk to their interrogators.

00;29;50;24 - 00;30;11;06

Karen Greenberg

And so you get what I'm saying. There's sort of a contradiction in what they're knowing, willingly putting in place and what the memos are arguing in terms of just how severe was this? Was this actually torture? The other thing you read from here, and this is something we've known forever, and following this is that the idea was to legalize torture.

00;30;11;09 - 00;30;35;15

Karen Greenberg

You can dress it up however you want and you can talk about however you want. That was the idea of these memos. When when the general counsel of the CIA, John Rizzo, went to the Department of Justice, he was asking them if they would approve these techniques. There may have been some surprise about how far the Department of Justice was willing to go in saying, we're going to redefine what we understand as torture.

00;30;35;15 - 00;31;11;28

Karen Greenberg

We're going to we are going to call it legal. And in so doing, he gave the CIA the ability to say, look, it wasn't up to us. This was determined by lawyers. They told us it was lawful and so on, so many levels. These department of Justice memos were completely destructive, not just in terms of the policy that went out after them, but in terms of what we now know can be done within the secret, secretive quarters of government and particularly Department of Justice, to abrogate, violate and redefine the law.

00;31;12;00 - 00;31;34;15

Jonathan Hafetz

Yeah, 100%. Remember, these are the most elite lawyers. Maybe that's in it, in and of itself can be part of the problem. But these are top lawyers. Should be some of the best legal minds. And, and yet under the Bush administration, they essentially created or enabled a legal architecture for torture and a host of related issues, right?

00;31;34;15 - 00;32;00;09

Jonathan Hafetz

Indefinite detention of enemy combatants and also ideas of executive power, which which is also, I think, in this colloquy. I mean, there's a lot packed in there, but there's the reference to the line that if the president orders it, it's legal, right? The president could do essentially anything they want. And even overriding an act of Congress that prohibits torture, international treaties.

00;32;00;12 - 00;32;04;00

Jonathan Hafetz

Right. So there's something in here, too, about just executive power itself.

00;32;04;02 - 00;32;27;07

Karen Greenberg

The transformation of the presidency after nine over 11 has been written about, but there is no way that could be written about enough. It is an extremely important reality, and it's evident in what we referred to before the 2001 authorization for the Use of Military Force, which gives the president the power and has only to decide where, when and how to conduct strikes against, those who perpetrated 9/11.

00;32;27;08 - 00;32;57;24

Karen Greenberg

And as we saw under the Obama administration, associated forces. And so, yes, the power of the presidency, which has always been important and strong, in our history, took a leap forward, in terms of the war on terror in the name of national security. And, and yes, this is just another example of it, of what was handed to the president and his ability to determine who would come under different structures, different within different attacks, etc..

00;32;57;26 - 00;33;27;21

Jonathan Hafetz

And you mentioned the 2001 authorization for Use of Military Force in the 2001 AMF, as we refer to it. I mean, I can't underestimate the importance of this statute, which on its face is pretty modest, right? It just basically says Congress has the president here. You can use we're authorizing you to use military force against the persons, nations or organizations responsible for 9/11 and those who harbored them, which basically like Ida and Taliban, which harbored them.

00;33;27;24 - 00;33;51;20

Jonathan Hafetz

And it's become through, I would think a lot of creative is is a nice way to put it, creative lawyering distorted into this broad, all encompassing power, not only against al-Qaida, including torture, detention, electronic surveillance, but has also been retrofitted to be used against ISIS, a group that didn't exist at the time and was actually not even alive as opposed to al-Qaida.

00;33;51;20 - 00;34;06;00

Jonathan Hafetz

So it's hard to underestimate the importance of this statute doesn't fully come through in the films. But, it's important, I think, for listeners to know that it's the AuMf, and most people refer to the Patriot Act. They think of, you know, the legislation after 911. I think it's the AuMf. That's the big one.

00;34;06;03 - 00;34;30;29

Karen Greenberg

There's no question the AMF is a game changer in terms of presidential power, in terms of setting up the structure. When we did detain people and the fact that it's been transformative in being able to add group after group after group, in location after location after location, and that's why it's not centered in I think it was, Representative Barbara Lee who said, this is going to be a blank check for the president to decide military strikes.

00;34;30;29 - 00;34;34;18

Karen Greenberg

Whoever he wants in way too broad away. And she was right.

00;34;34;21 - 00;35;00;08

Jonathan Hafetz

And God bless you. She was. I think I'm pretty much alone or close to a lone voice at the time. So you mentioned also Mitchell and Gessen. Tell us about these two individuals, James Mitchell and Bruce Jessen, who are psychologists, and the program that they use, the so-called Sere program, because I think that's an important part of the story, and it's plays a significant role in the report.

00;35;00;10 - 00;35;09;10

Karen Greenberg

Yeah, it's it's interesting. So these two psychologists, without interrogation experience, Mitchell and Jessen.

00;35;09;12 - 00;35;11;07

Jonathan Hafetz

Names Mitchell and Bruce Jackson.

00;35;11;10 - 00;35;44;04

Karen Greenberg

Float this idea, which is that they can take a program that is known as sere CRT, which is survival evasion, resistance and escape, which is basically something that's taught to Americans who, in case they get captured by enemy forces of how to withstand torture, and in particular, in this instance, and what they posit is a program that will be reverse engineered so that it will be used against the terrorists that are detained after 9/11.

00;35;44;07 - 00;36;18;02

Karen Greenberg

And so they institute these practices that that would have been used against Americans to say, how do you withstand this? Instead, they take them and they apply them to individuals thought to be members of al-Qaida. Alleged to be members of al al-Qaida, and submit them to these same techniques. And, you know, it's very interesting what's happened with the the course of trying to hold anybody accountable for the development of the enhanced interrogation program, because Mitchell and Jessen have been sued in court, by the ACLU.

00;36;18;02 - 00;36;40;06

Karen Greenberg

And they came to a settlement, which we don't know what that settlement was. These guys were paid over $80 million to develop the program, to advise on it, to refine the techniques. It's extraordinary when you think about it. But recently they've been involved in other litigation, which we can get into. If you want to talk a little bit about Zubaydah and that case, but that's an overview of the story.

00;36;40;06 - 00;36;41;15

Karen Greenberg

I think in some ways.

00;36;41;18 - 00;36;45;20

Jonathan Hafetz

Well, I'd say a little bit about the Zubaydah case, if you want, and then we'll pick back up.

00;36;45;23 - 00;37;08;00

Karen Greenberg

So the first detainee that subjected to these techniques, even before the torture memos are written, is Abu Zubaydah, who was alleged at the time to be number 3 or 4 in al-Qaida in terms of his his rank in closest to bin laden turned out to be not the case at all. And he was subjected to these techniques in such a way that it was written at the time.

00;37;08;00 - 00;37;29;05

Karen Greenberg

He can never see the light of day. He can never say what happened to him. Zubaydah remains at Guantanamo to this day. One of the prisoners who's in the category of forever prisoner, who is not going to be charged, but who also has not been cleared for release, which is an interesting echo of he can never get out and say what he knows.

00;37;29;05 - 00;37;57;07

Karen Greenberg

Right. That idea, because he's still there. And recently there was a case in the federal courts that went to the Supreme Court, which basically was an attempt for Zubaydah trying to get testimony from Mitchell and Jessen for a case that's going on in Poland where the Polish government is trying individuals accused of being part of the Polish CIA, black site and Supreme Court said, no, that this this is state secrets.

00;37;57;07 - 00;38;30;23

Karen Greenberg

And this information should not be shared with the Polish authorities, but it just tells you how long the story of Zubaydah is still going on. Still being litigated in the court. And I think more importantly about this is that we know the United States tortured individuals. We know that we know all of the things that it has corrupted, including the ability to try them in court, even in the military commissions that was set up with special procedures, so that we could try people outside of normal procedures in article three courts.

00;38;31;00 - 00;39;05;06

Karen Greenberg

And what's interesting is that even as we know the story, whether it's from these movies, whether it's from the Senate report, whether it's from testimony in court, whether it's from Supreme Court justices mentioning the word torture when they're talking about the Zubaydah case or many other places where we've had detainees who are either still at Guantanamo or let out of Guantanamo talk about their experiences or other films that have actually detailed the stories of individuals at Guantanamo who had been subjected to torture, at the black sites or at Guantanamo.

00;39;05;10 - 00;39;22;08

Karen Greenberg

We know so much about it, and yet it's considered a story we're not allowed to talk about. It's such a conundrum. I mean, it happened. We know about it with the Supreme Court talked about it. Why is it that we're still trying to keep secret what happened? What is it? We don't know.

00;39;22;10 - 00;39;43;07

Jonathan Hafetz

It's a question that only like a mind like Kafka could answer and maybe that's the only way to actually capture the surreal reality of these things. I'm. I'm so glad you brought in Zubaydah, because for two reasons. One, because he's played such a pivotal role in terms of the direction U.S. interrogation takes, right? He's the one he's initially when they captured, the FBI comes in, they start getting information.

00;39;43;13 - 00;40;14;17

Jonathan Hafetz

Then the CIA shuts down, the FBI interrogation takes over, and he becomes really, the first guinea pig, if you will, in the failed experiment of the torture program. And he's and that's depicted in both films. So I think it's really important to understand Zubaydah, who now, as you say, is in this forever prisoner category. And to quote former President Obama, he is one of those people in this category, which is really a legal fiction to difficult to try in court, but too dangerous to release.

00;40;14;17 - 00;40;42;09

Jonathan Hafetz

We've never had that category before, but now we didn't. The other the other point that it which is so important is on the is the secrecy. And you mentioned the Supreme Court case, the Zubaydah case that was heard last term by the Supreme Court decided. And they uphold the application of the state secret doctrine to aspects of Zubaydah detention, including the locus of his detention, even though this information is in the public domain.

00;40;42;09 - 00;41;07;12

Jonathan Hafetz

And I want to quote a justice who otherwise, I don't rank as anywhere near my top list, but has issued some very good opinions in national security and other cases of government overreach. And that's just scorched in the Zubaydah opinion. He dissents, joined by Justice Sotomayor. And I'm going to read everything it really captures. What you're saying is Zubaydah seeks information about his torture at the hands of the CIA.

00;41;07;15 - 00;41;29;20

Jonathan Hafetz

The events in question took place two decades ago. These long been declassified reports have been published, books written and movies made about them. But the government still seeks to have the suit dismissed on the ground that it implicates a state secret. And the court today acquiesces in that request, and the suit may shield the government from some further modest measure of embarrassment.

00;41;29;23 - 00;41;40;02

Jonathan Hafetz

But we should not pretend it will safeguard any secret. And so I think that pretty much nails this would be the case. And a lot of the secrecy around 9/11.

00;41;40;05 - 00;41;44;26

Karen Greenberg

Yeah, it really does say it very clearly and very definitively.

00;41;44;26 - 00;42;26;29

Jonathan Hafetz

I think I want to move on to what I think is a possible critique of the report. So the film focuses on whether torture works right. That's sort of the central argument that the film makes is that torture doesn't work and that it didn't produce valuable intelligence. There's a lot of discussion in the film about the so-called Panetta review, which was an internal CIA inspector general report into the program, which kind of contradicted a lot of what they said publicly about how torture worked and suggested, according to reports, the Panetta review had never been released, but it suggested that torture CIA knew torture didn't work.

00;42;27;01 - 00;42;35;28

Jonathan Hafetz

So that's the argument of the report. But are they missing something? I mean, is that argument vulnerable? What if torture did work or did work sometimes?

00;42;36;01 - 00;43;15;28

Karen Greenberg

No, no, I'm so glad you brought this up. So first let's just discuss the did torture work in numerous accounts, including Ali Soufan. You know, FBI Special Agent, right. And others. The information that was gotten both to lead to bin laden, the courier that went to bin laden and other information that was gotten, for example, about, Khalid Sheikh Mohammed as the mastermind of 911 was, in their words, gotten not to torture, but prior to the CIA's using these techniques in just interrogations, in which they sort of established a rapport with the detainee being interrogated.

00;43;16;02 - 00;43;33;21

Karen Greenberg

And that's a very persuasive argument. And the information that came out of those conversations and those interrogations seems to have been dispositive, both in terms of getting bin laden and in terms of identifying Khalid Sheikh Mohammed and others. So that's an important point to follow up on. But the deeper question that you're asking is, so what if it does work?

00;43;33;21 - 00;43;56;12

Karen Greenberg

And that, I think, is an extremely important point that people miss. You don't torture people. It's not. It's against the law for a reason. It is a complete destroy of the idea of law, of the rule of law, of living in a civilized world and adhering to customs that will get human beings to treat one another as human beings.

00;43;56;12 - 00;44;12;23

Karen Greenberg

And so the fact that it doesn't work is not the point. The fact is, you don't do it. And I think we've talked about these for if you feel that you have to torture somebody because that's going to get the information that you want, which it may or may not get, then defend yourself in court afterwards because it is illegal.

00;44;13;00 - 00;44;36;17

Karen Greenberg

But this idea that the debate is whether it works or not, seems to me a legacy of our inability to really understand just how destructive to the values that we say we hold most dear as a society that honors the rule of law, just how long this legacy really is, and we have not resolved this conversation when that's the question we're talking about.

00;44;36;19 - 00;44;57;11

Jonathan Hafetz

I agree completely. And as you said, it's it's destructive. It has an incredible kind of corrupting effect. And as you mentioned earlier, it is the central reason why the United States has still, 20 plus years later, not brought the alleged mastermind of 9/11. Right. The worst terrorist attack in U.S. history. It killed approximately 3000 people. Khalid Sheikh Mohammed, right.

00;44;57;11 - 00;45;10;27

Jonathan Hafetz

The alleged mastermind has not been brought to justice, and it's because of the original sin of torture. And I mean, to me, that's, among the worst legacies of the response to 9/11 is the equivalent of justice jumping the shark.

00;45;11;00 - 00;45;40;04

Karen Greenberg

Yeah. That's right. I mean, it's really unfortunate. And one of the things that happened under the Obama administration was the notion, completely understandable, that when it came to issues of torture and those who wrote the memos and those who implemented the policies and those who designed the policies, that given the fragile state of American politics and the tense state of of American Partizan politics, it was just better to look forward, not backward.

00;45;40;04 - 00;46;09;23

Karen Greenberg

And it's totally understandable. But what we've learned is that when you look forward and not backwards, the back, the past still continues to haunt you and to affect the present. And so, yes, it would have been incredibly difficult to mount a sort of accountability project for what actually happened and who misstep and broke the law and at least broke the public confidence in terms of Raleigh in the aftermath of the attacks of 911.

00;46;09;23 - 00;46;41;10

Karen Greenberg

And we never really did that. And it's not about getting punishment or justice or retribution. It's about naming what's right and what's wrong and letting the country know what happened and which parts of that were wrong. And so it would have been great if we could just put this all behind us. But we can't. It's still with us, not just at Guantanamo, but in terms of knowing that when something this egregious happens that it's against, primary laws, constitutional principles, international principles, that it doesn't get addressed.

00;46;41;10 - 00;46;51;02

Karen Greenberg

There isn't a narrative. It's kept secret to the extent possible that, in essence, that is is destructive and the destruction continues into the future.

00;46;51;05 - 00;47;12;23

Jonathan Hafetz

You have to wonder whether the political sacrifices that would have had been made or were necessary. And there's a great scene towards the end of the report where Jon Hamm, was playing Denis McDonough, the white House chief of staff for Obama, defends Obama's caution about the report to a group of senators led by Dianne Feinstein, played by Annette Bening, doing a fantastic job.

00;47;12;25 - 00;47;31;08

Jonathan Hafetz

He's saying if we make the report public and if we push this issue, and he's certainly talking about holding people accountable, what's going to happen to gun control? What's going to happen to health care? What's going to happen to immigration reform? How are we going to work with the Republicans on this? Well, all of those issues have been submerged by a deluge of partizanship.

00;47;31;08 - 00;48;00;07

Jonathan Hafetz

Anyway. So was it worth the cautious approach? I don't know the answer, but it's certainly questionable. And I guess just to wrap up, Karen, there's this myth and this idea of American exceptionalism, right? It goes back hundreds of years before the country's founding, the shining city on the America's different respect for rule of law and values. So it's a vision that has to leave out a lot of America's past, from treatment of Native Americans to slavery to treatment of other minorities.

00;48;00;07 - 00;48;20;02

Jonathan Hafetz

But where are we at the end of the report? And Zero Dark 30 in terms of American exceptionalism, I feel like if these movies were made, if you made movies in the 1970s, the ending would look a little bit differently. But I'm kind of curious on what your view is, and if we can still talk about America as kind of a place of exceptional values.

00;48;20;04 - 00;48;51;28

Karen Greenberg

I think what both these films leave you with is that the American claim to exceptionalism went through a really dangerous and difficult period, and it's still not out of it, because these films are in debate with one another. And in this larger context, and as long as we're debating whether or not it's okay to to torture people, it's really hard to embrace the kind of city on the Hill exceptionalism, that you referred to.

00;48;51;28 - 00;49;17;05

Karen Greenberg

And, look, there's so many things that the United States aspires to and has always aspired to, and we're working our way towards that future. But I think part of being exceptional is understanding that, yes, it's okay to be pragmatic and and politically savvy. What can we do? What can't we do? But at some point, it's really important to be the idealist and to say, you know what?

00;49;17;09 - 00;49;35;17

Karen Greenberg

We have ideals. We're going to live up to the ideals, and they're not tradable. This is not, okay, you get this and we get this, even though that's the political reality. This was Ben Franklin's major thing. We're not perfect, but we're going to go for those ideals as if we think they're attainable, even though we know we're going to stumble along the way.

00;49;35;23 - 00;49;47;18

Karen Greenberg

I think that's really an important message that's been lost, as if something about the ideal gets in the way of the practical. It doesn't. It's what allows the practical to strive for its best outcome.

00;49;47;20 - 00;50;15;04

Jonathan Hafetz

And gets beautifully put and and and and strive and move forward, but recognize limitations, shortcomings and how we fallen short. Thank you again for joining us online film. And I recommend both films. I think they're both overall a lot to recommend them. They fall short in ways, but they're both I think important documentations of these aspects of 911, that's, Zero Dark 30, directed by Kathryn Bigelow, and the report directed by Scott Z.

00;50;15;05 - 00;50;18;17

Jonathan Hafetz

Burns. So thanks again, Karen. It's been great talking with you.

00;50;18;20 - 00;50;20;26

Karen Greenberg

Thanks, Jonathan. It was a pleasure to talk.