The Obama administration should not be surprised to have ignited a firestorm on terrorism. The attorney general's decision to investigate CIA operatives for alleged abuses during interrogations overseas after 9/11 carries a sense to many Americans of wanting to punish the good guys for roughing up the bad guys. It is all the more surprising in the light of what President Obama told CIA officers during his visit to their headquarters in April. While not retreating from his conviction that some practices now banned were "mistakes" that had violated the country's core principles, he gave the officers the clear impression that he remained opposed to prosecutions.
Many former and current CIA officials feel betrayed. One of them, Kent Clizbe, has described the dedication of a small cadre of officers charged with tracking and striking our attackers overseas before they could attack us again. The officers fanned out across the world to "deny, disrupt, and destroy," as the CIA Counterterrorism Center motto puts it. They hunted terrorists in isolated and dangerous spots for 24 hours a day, seven days a week to achieve incremental victories. "We left our families for months on end and sacrificed personal and professional lives to fight the global war on terror." Now these officers feel they have to fight al Qaeda and the U.S. government at the same time.
The anger is understandable. Both the Bush White House and the Justice Department urged the CIA to ratchet up its counterterrorism methods and activities after 9/11. Terrorism suspects were kidnapped, prisoners placed in secret facilities around the world and subjected to intensified levels of interrogation. It was very much to the dismay of the CIA and its new, esteemed chief, Leon Panetta, that the Justice Department released additional portions of the inspector general's review of the interrogation programs because that compromised potential procedures and methods of questioning. At the same time, though, the report revealed that the Justice Department "approved the program orally and in writing." The agency's chain of command was involved; in recognition that for a crime to be committed, there must be not only the deed (actus reus) but the intent (mens rea), the inspector general stated: "We do not believe there was any criminal intent amongst those involved."
The first issue, and it is a grave one, is whether the legal assurances of one administration carry over to its successor. If one administration says something is legal and the next one says it is not, who is ever going to undertake dangerous, cutting-edge missions—indeed, risk doing anything at all? In effect, the second-guessing places the agents in double jeopardy.
But there is a second important issue in this particular case. Dozens of abuses were alleged to have been inflicted in the course of carrying out "enhanced interrogations," all of them with the authority of the Justice Department. But that is not the whole story. Beginning in 2005, each of these cases was also exhaustively reviewed by career prosecutors, prosecutors not from the Bush administration but under the supervision of the U.S. attorney for the Eastern District of Virginia. The prosecutors had access to the complete, unredacted report of the CIA's inspector general. They recommended against criminal charges in all but one case, which involved an outside contractor who was convicted of assault. The new decision of Obama's attorney general, Eric Holder, to appoint a special prosecutor amounts to a repudiation of the work of the detainee abuse task force in the Eastern District of Virginia. It is an assertion that actions were taken outside the approved guidelines and that justice was thus not done five years ago. Yet there is no indication that the attorney general has any grounds for challenging the professionalism and good faith of the prosecutors.
After 9/11, many of those on the front lines of the war against terrorism felt defensive fear amid a national emergency. They honestly believed they were dealing with terrorists who were involved in the 9/11 attack that killed 3,000 fellow Americans and were under great pressure to extract information from them. This was a murky world, often with unclear guidance as to what was permitted. No jury in America would have convicted them at the time they were originally investigated by the task force. And the employees certainly believed they could rely on the Justice Department's assurance that they would not face prosecution. Attorney General Holder himself said in April that it would be "unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department." He was believed then. What has made him go back on his word? Howls from the left? There is no hint of new evidence or new witnesses to justify the extraordinary reversal.
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