On the torture report, a confrontation looms

Sometime this summer, probably when as many Americans as possible are tanning on a beach and not paying attention, the White House is expected to release a version of a classified report on torture during the Bush years. Actually, what's likely to become public is only the executive summary of the Senate Intelligence Committee's report; the entire thing, five years in the making, clocks in at about 6,700 pages, making it the most exhaustive account yet of what really went on in secret CIA prisons around the world.

President Obama has repeatedly said he favors declassifying the report, which the public really ought to see. And should he release the summary in something close to the form in which it was sent to him, then his decision will likely end an unusually public standoff between top senators and the CIA, each of whom accused the other of spying illegally as the report was being compiled and written.

If, on the other hand, Obama delays the release much longer, or bows to the intelligence community and decides to black out the report's most damaging findings, then we may find ourselves on the brink of a serious escalation between the legislative and executive branches in Washington — a war over what kind of secrets the government should be allowed to keep and, more to the point, who gets to decide.

The doomsday device in this fight, which the Senate has rolled out a few times in the past but has never actually used, is an arcane, almost 40-year-old provision known as Senate Resolution 400. (Not the catchiest name ever, but you know, Hollywood thrillers have worked with less.) It's a drastic measure that's now being openly discussed as a serious option inside the Senate. But before we get to all that, let's take a step back and consider what's really going on here

Remarkably, given the nature of modern Washington, almost nothing specific from the Senate's report has actually leaked into public view. But according to insiders and some published accounts, there are two main headlines that emerge from it, both scathingly critical of the CIA. The first is that, contrary to the agency's assertions, torture as an interrogation tactic — that is, the infamous waterboarding, among other "enhanced" techniques — didn't actually work very well. The second is that intelligence officials lied outright to Congress, repeatedly, about this.

Those who have worked on or read the report sent to the White House say it contains explosive details, even given what we already know about the interrogation program. "I think the American people are going to be profoundly disturbed and genuinely shocked by the content of this," Oregon Senator Ron Wyden, an intel committee member, told me this week.

Obama, you may recall, came to office vowing to overturn Bush-era secrecy, and at the end of his first year in office he issued clear guidelines (by Washington standards, anyway) for declassifying documents. One of the more interesting provisions in that order, half-buried in Section 1.7, was that the government would not be allowed to keep information classified in order to "conceal violations of law" or "prevent embarrassment to a person, organization or agency."

It seems like a pretty good bet, considering what's in the report, that the CIA has some concerns about violations of law and potential embarrassment to a person, organization or agency. Maybe even all three.

But of course that's not what the agency's director, John Brennan, has told the president in arguing against declassification. According to people briefed on the issue, Brennan has argued that the report is deeply flawed and might lead to unrest around the world, jeopardizing agents in the field and national security. (The agency has written a detailed rebuttal, which is also likely to be made public.)

Obama could reject this argument, of course, and follow through on his repeated vows to lead the most transparent administration in history. But there's not a lot of optimism about that inside the committee or among open government groups, given Obama's past deference to intelligence officials on issues like secret wiretaps and drones. The expectation seems to be that the White House will approve some version of the report that's kind of like those maddening Eminem songs you hear on FM — faithful enough to get the basic point across, but with enough skips to be sure it doesn't shock anyone.

It's easy enough to fault Obama if that's what comes to pass, but really, we have a structural problem when it comes to trusting the executive branch with declassification. In the age of terrorism, more than at any time in the past, a president is always hearing that the risk of any disclosure is dire and immediate — that releasing painful and embarrassing truths might trigger the next attack or ruin our chance to stop it. And if there is an attack, even if it isn't at all connected to that disclosure, the president knows he will be squarely blamed. There's tremendous pressure to err on the side of secrecy.

And as you might expect, the only intelligence the president is generally urged to declassify is that which exonerates the intelligence agencies or proves their point —and often in instances when congressional overseers know there's more to the story and aren't allowed to say so publicly. When you control the information that gets into the public domain, you also control the debate.

This is where Resolution 400 potentially comes into play. When the Senate passed that resolution in 1976, creating the Select Committee on Intelligence, it gave itself the extraordinary power to declassify information without the president's approval — albeit with considerable exertion.

Basically, in order to invoke that provision successfully, the intel committee, chaired by California Democrat Dianne Feinstein, would first have to vote to bring the report before a rare closed session of the full Senate. If the president didn't object in writing within five days, the full Senate would then weigh the report in closed session and vote on whether to unilaterally declassify it.

Senators have gone through the initial process of invoking Resolution 400 in the past, the last time during George W. Bush's second term, but it's generally been considered a way of getting the president's attention rather than a realistic option. That's probably the main reason it's being trotted out now, too. No doubt some senators were willing to talk with me about it openly this week because they're trying to pressure the White House.

But there's also a growing sense among senators that, if Obama doesn't disclose the summary more or less as is, Feinstein might be exasperated enough to actually ramp up the doomsday device, with the backing of some senior members. "I am going to use whatever tools it takes, including Senate Res 400, to declassify the torture report," Wyden told me flatly, more than once.

And there's compelling reason to do that, provided, as the committee says, the report has already been redacted to protect CIA operatives. The truth is that America has never been exceptionally adept at safeguarding basic values in the face of new and unfamiliar threats. The government imprisoned more than 100,000 Americans of Japanese descent in the aftermath of Pearl Harbor. It terrorized intellectuals at home and sanctioned assassinations abroad in those early, ominous years of the Cold War.

What we've learned is that sooner or later you have to acknowledge those transgressions in order to transcend them. As Rhode Island's Sheldon Whitehouse, a former intel committee member, puts it, "This report gives our country the best chance to reconcile ourselves to what we've done, and then move on."

If Obama won't make the most of that chance, the Senate just might, and probably should.