Six Reasons Not to Prosecute CIA Interrogators
UPDATE: Panetta Threatens to Quit
Another UPDATE

This is a follow-up to my post last night about the Obama DOJ's suggestion that the President start criminal investigations and prosecutions of CIA officers and contractors who participated in detainee interrogations (and possible detainee abuse). The former general counsel for the CIA writes in today's WaPo that this is a bad idea:

-- 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.

-- 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.

-- 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.

As the man says, go read the whole thing.

Update: Via several commenters (thanks!), CIA Director Leon Panetta apparently threatened in a "profanity-laced tirade" to quit over AG Holder's insistence that the DOJ start criminal investigations. An ABC News report is here.

Folks are asking if this is genuine or not. Remember that Panetta came down really hard on Pelosi when she attacked the agency. His initial instinct was to defend his people. It was only later that he came along with the "power point presentation = secret assassination squad" thing.

I think his fury over a DOJ witchhunt in his agency is genuine. He knows these people and he's working with them. The last thing he wants is for the intelligence apparatus to fall apart on his watch. And he's got one of the most impossible tasks in the Obama Administration: protect the United States from his own President's and his own party's political folly. His own party constantly undermines his efforts and, still, he's going to be blamed if we are attacked again.

The Story that Keeps on Giving Update: Panetta sent a letter to CIA employees today. It reads in part:

As Director in 2009, my primary interest-when it comes to a program that no longer exists-is to stand up for those officers who did what their country asked and who followed the legal guidance they were given. That is the President's position, too. The CIA was aggressive over the years in seeking new opinions from the Department of Justice as the legal landscape changed. The Agency sought and received multiple written assurances that its methods were lawful. The CIA has a strong record in terms of following legal guidance and informing the Department of Justice of potentially illegal conduct.

I make no judgments on the accuracy of the 2004 IG report or the various views expressed about it. Nor am I eager to enter the debate, already politicized, over the ultimate utility of the Agency's past detention and interrogation effort. But this much is clear: The CIA obtained intelligence from high-value detainees when inside information on al-Qa'ida was in short supply. Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used. The CIA requested and received legal guidance and referred allegations of abuse to the Department of Justice. President Obama has established new policies for interrogation.

The CIA must also keep its focus on the primary responsibility of protecting the country. America is a nation at war. This Agency plays a decisive role in helping the United States meet the full range of security threats and opportunities overseas. That starts with the continuing fight against al-Qa'ida and its sympathizers. There, alongside all its other contributions, the CIA is helping our government chart a new way forward on interrogation, one in keeping with the President's Executive Order of January 22nd. You, the men and women of this great institution, do the hard work and take the tough risks that intelligence and espionage demand.

I am very proud of what you do, here and abroad, to protect the United States. Your skill, courage, commitment, and focus on mission make the CIA indispensable to the nation. It is a privilege to serve with you.

The full thing is here.

posted by Gabriel Malor at 11:13 AM

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