Investigate, Disclose, Prosecute

With the CIA report on interrogations, prisoner abuses and torture released today, we're bound to see a new flurry of old arguments that the heavens shall fall if anyone dares to prosecute the perpetrators. A Washington Post op-ed today touches on these very issues, although the author is more nuanced and with a more narrow focus than many other WaPo writers on the subject. (I'd be shocked if we didn't get some raving torture apologists shortly.)

I'm not going to recap every argument (and re-use every link) in "Torture Versus Freedom" and other torture pieces here, but there needs to be a full investigation and disclosure of everything possible (the CIA report will help, but may have a more narrow focus). Prosecutions should certainly be brought where appropriate. Granting blanket immunity would be irresponsible before further facts are known, especially given what is already known. We do know over 100 prisoners were killed in detention, that abuse was widespread, and that abuses were the result of deliberate policies from the highest levels versus the work of a few "bad apples." Based on the timeline and narrative currently available, there are CIA agents – and more likely, government contractors – whose offenses were so grotesque they should investigated and probably prosecuted. However, the bigger issue is those higher up who made the decisions. That group would include Bush, Cheney, Rumsfeld, Addington, Yoo, Gonzales and others (Marcy Wheeler's "The 13 people who made torture possible" provides a splendid overview). It would be a travesty if, as with Abu Ghraib, the lower-level personnel got all the blame while the real culprits got away scot-free.

With all this in mind, I wanted to go through "CIA Accountability: 6 Reasons Not to Prosecute Interrogators." I'll go through the whole thing paragraph by paragraph, but it might be better to read the whole thing and form one's own impressions first. The author was general counsel for the CIA from 1995 to 1996.

CIA Accountability
6 Reasons Not to Prosecute Interrogators

By Jeffrey H. Smith
Monday, August 24, 2009

The CIA inspector general's report on "enhanced interrogation techniques," scheduled to be released today, is said to provide disturbing details about interrogations CIA officers conducted from 2002 to 2004. It will be painful reading. Although the Obama administration has banned the techniques, Attorney General Eric Holder is reportedly considering prosecuting some of the officers who conducted the interrogations.

We lost our bearings in the wake of the attacks of Sept. 11, 2001. The United States, long a leader in human rights and the law of war, adopted policies and practices that squandered our credibility. Over time, President George W. Bush recognized that and reversed some of those policies. In one of his first acts, President Obama went further and banned the enhanced techniques, closed the secret CIA prisons and pledged to close the prison at Guantanamo Bay.

I'm not sure how accurate it is that 9/11 caused a madness that lead to abuses. Meanwhile, Bush "recognized" legal jeopardy more than the obvious immorality and inefficacy of torture and other abuses. "Madness" is probably the best defense, but as I've written before, the timeline doesn't really support a good faith defense (more on this later). The attacks on 9/11 didn't change the thinking of the neocons, imperialists, monarchists and authoritarians inside the Bush administration so much as it gave them more justification for their already existing, radical views.

Have we done enough to restore our credibility and correct past wrongs, or are prosecutions also needed? We don't yet know what has caused the attorney general to consider prosecution. Enforcing the law is an important function of government. But the government also has broader responsibilities. Here are six reasons prosecutions are not in the nation's best interests:

It's nice that Smith admits we don't know everything yet. Conservative torture apologists generally claim, without offering any proof, that torture saved lives. However, in the eyes of the world, there's simply no question we must prosecute to "restore our credibility and correct past wrongs." A significant percentage of the American people feel the same way, and that number would likely rise if the torture story was reported more accurately.

-- First, these techniques were authorized by the president and approved by the Justice Department. The relevant committees of Congress were briefed. Although the Justice Department's initial legal opinions were badly flawed, the fact remains that the agency responsible for interpreting and enforcing the law said the techniques were "legal." That alone will make prosecutions very difficult.

This is mainly an argument not to prosecute lower-level CIA agents. That seems to be Smith's main concern, and his take on prosecuting those higher up is less clear. I suspect that Washington Post op-ed editor Fred Hiatt might not note the distinction. I wish Smith was more forthright on this, since I think this op-ed will generally be flogged to shut down all prosecutions.

The OLC (Office of Legal Counsel) memos supposedly "authorizing" torture were issued as cover-your-ass measures, after torture and other abuse had already started. As it is, the guidelines they outlined, illegal though they were, were exceeded. But the memos also ignored glaringly relevant legal statutes and case law. A lawyer saying "murder is legal" obviously doesn't magically make it so, although this is essentially the Bush administration position – and one Smith voices as well. The torture memos were neither legally sound nor written in good faith.

As for congressional disclosure, as Angler documents and the Pelosi-CIA briefings story earlier this year show, the While House and the CIA both routinely deceived Congress when they told them anything at all. In fact, just today Scott Horton wrote about the role Blackwater played in Cheney's assassination program, which was one of the major stories of the past week. As Horton notes, Cheney ordered that Congress not be briefed on the program, and that part was known months ago even if Blackwater's involvement wasn't. It's hard to believe Smith didn't know about these stories.

-- Second, the CIA provided the inspector general's report to the Justice Department in 2004. Justice has not prosecuted any CIA officers but did successfully prosecute a contractor who beat a detainee to death, an incident that was initially reported to the department by the CIA. What has changed that makes prosecution advisable now? No administration is above the law. But the decision of one administration to prosecute career officers for acts committed under a policy of a previous administration must be taken with the greatest care. Prosecutions would set the dangerous precedent that criminal law can be used to settle policy differences at the expense of career officers.

Torturing and killing prisoners are not mere "policy differences." The Bush Justice Department's refusal to prosecute abuses is further proof of its corruption, not an exoneration of the perpetrators.

-- Third, after Justice declined to prosecute, the CIA took administrative action, including disciplinary action against those officers whose conduct it deemed warranted such responses. This is standard procedure; reports of possible criminal activity must be referred to Justice. If it declines to prosecute, the matter is sent back to the CIA for appropriate administrative action.

Disciplinary action under the corrupt Bush administration isn't necessarily sufficient, especially given the severity of the crimes – torture and death. This should be further investigated and probably decided on a case by case basis, though. The bigger concern is not individual CIA agents, but those higher-up who authorized these policies.

-- Fourth, prosecuting CIA officers risks chilling current intelligence operations. This country faces an array of serious threats. A prosecution or extensive investigation will be an unmanageable expense for most CIA officers. More significant, their colleagues will become reluctant to take risks. What confidence will they have when their senior officers say not to worry, "this has been authorized by the president and approved by Justice"? And such reactions would be magnified if prosecutions focus only on the lower-ranking officers, not those in the chain of command. Such prosecutions are likely to create cynicism in the clandestine service, which is deeply corrosive to any professional service.

Emphasis mine, above. I don't think it takes a high degree of intelligence or conscience to recognize that torture and murder of a prisoner is illegal and immoral, and not just another order to obey. But I agree with Smith on the bolded section. Those lower down should be investigated, partially to further establish the evidence. But those in the chain of command should be the main targets.

-- Fifth, prosecutions could deter cooperation with other nations. It is critical that we have the close cooperation of intelligence services around the world. Nations often work together through their intelligence services on matters of mutual interest, such as combating terrorism, even if political relations are strained or nonexistent. The key to this cooperation is the ability of the United States to be a reliable partner and keep secrets. Prosecuting CIA officers undermines that essential element of successful intelligence liaison.

This argument is largely bullshit. Most other nations aren't happy about the CIA or other American agencies and contractors torturing and killing people. Investigations are proceeding in Spain and other countries. The human rights abuses perpetrated under the Bush administration, and the Obama administration's insistence that it can still hold prisoners indefinitely without trial or evidence, have hurt foreign relations and our national security, not helped it.

-- Sixth, President Obama has decisively changed the policies that caused so much damage. He recognizes that it is vital to our security to have an effective intelligence community that is not distracted by looking backward and coping with congressional investigations and grand jury subpoenas.

The CIA is not a monolithic entity. It has tortured in the past, while others in the CIA have opposed this. Most in the FBI favor rapport-building techniques, as do some military interrogators such as the decorated Major Matthew Alexander. That's why the newly-announced High-Value Detainee Interrogation Group (HIG), with different agencies represented but FBI predominance and White House oversight, may prove to be a good idea.

Smith has consistently argued for years that CIA agents need clear guidelines, and he's absolutely right on that. HIG may provide that, and could be a useful buffer against torture apologist bullshit. Smith also has a point about not just going after lower-level CIA operatives. However, yet again, when torture and murder are involved, these are not mere "policy differences." It's pretty damn important for national security and "effective intelligence" that everyone in the CIA to understand that the Nuremberg defense doesn't hold and some orders must be challenged.

If media reports are accurate, the conduct detailed in the inspector general's report was contrary to our values. It caused harm to our nation and cannot be repeated. But prosecuting those who actually carried out that behavior has consequences that could further harm our nation. Even if the attorney general concludes that a criminal charge could be brought, other factors must be considered. Sometimes broader national objectives must be given greater weight.

The writer, a partner at Arnold & Porter, was general counsel of the CIA from 1995 to 1996.

This is more of the same. Again, there should be a full investigation, and some of those "who actually carried out that behavior" probably should be prosecuted. However, the big problem is those who authorized it, and they should remain the main focus. I don't think Smith is necessarily averse to prosecuting the chain of command, although some torture apologists have made similar arguments as a smokescreen to try to protect key members of the Bush administration. It's basically the "Criticize the Bush administration and you hate the troops" bullshit, except adapted to excuse war crimes. Let's also not forget – and the CIA would do well to remember this, too – that the Bushies have shown themselves perfectly happy to trash the CIA repeatedly for their own mistakes, and for doing things that the Bushies told and browbeat the CIA to do. (See these excerpts from The One Percent Doctrine, for example.) I don't blame Smith too much for sticking up for his former colleagues at the CIA in general principle, but I wish he'd recognize that part of the game, and be more forthright about his stance on prosecuting Bush, Cheney, Rumsfeld, Addington, Yoo and the gang.

Based on his past writings and statements, Smith is strongly for clear guidelines for the CIA, army and other government entities, he's for agency coordination, and appears to be anti-torture.

For instance, here's his list of articles.

From mid-September 2001, here's a PBS interview.

He's written other op-eds for The Washington Post on this general subject. From June 2005, there's "Regaining Respect."

From November 2005, there's "Central Torture Agency?: Exempting the CIA From the McCain Amendment Sends the Wrong Signal to Our Officers."

From February 2007, there's "A War Under Law: Congress Must Address U.S. Detainee Policies."

I'm less concerned about Smith specifically, but did want to put his arguments in context.

Currently, the investigation is set to be only of low-level personnel. As Scott Horton and others have pointed out, if the law is followed, such an investigation will necessarily lead upward. The big worry is a whitewash. And Horton today raises serious concerns about Holder not releasing the Office of Professional Responsibility (OPR) report. (Marcy Wheeler has similar concerns.) It's important because, as Horton writes, that report:

...Could therefore provide ample reason to doubt whether anyone with legal training—or indeed, anyone with a functioning mind and the ability to read—would find the memos to be persuasive statements of the law. That matters, because the law requires someone relying on them to have done so “in good faith.”

Horton, Marcy Wheeler (Emptywheel), Spencer Ackerman and several other blogs will all be useful to read over the next weeks. Here's the Washington Post article on special prosecutor John Durham. Wheeler isn't thrilled about him. Eric Holder's statement can be read here.

From Wheeler, I'd also recommend "Cheney’s Cherry-Pick," "Reposted: The CIA IG Report on the Inefficacy of Torture," and"Reposted: The CIA IG Report’s “Other” Contents."

Ackerman has "Collected Lowlights Of The 2004 CIA IG Report Into Torture" and another look at Cheney.

KCRW radio show To the Point today was on "A New Look for America's Terrorism Interrogations."

I imagine Dan Froomkin will have more in the days to come as well.

There's plenty to sift through, and much more to come out besides that.