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.
Panetta is outraged by the attorney general's volte-face. He argued against the appointment of a special prosecutor. Now he is being undercut by the very people in his own party who were supposed to be his major supporters in a fiendishly difficult transition. He knows he must deal with the fact that the CIA's operational abilities have now been undermined by the attorney general, new rules, and hostile lawyers. How will his agency successfully interrogate uncooperative jihadists, like self-described 9/11 mastermind Khalid Shaikh Mohammed, who remained silent when questioned without physical coercion? After the waterboarding, sleep deprivation, and psychological coercion suggesting that harm may come to one of his family members, however, he became "the most prolific" of the high-value detainees in CIA custody, providing information that helped lead to the arrest of terrorists and to the revelation of other plots, an intelligence bonanza that is estimated to have saved thousands of lives.
This included intelligence on the planned hijacking of one aircraft flying to Heathrow Airport and another that was going to crash into the tallest building in California, a West Coast version of the World Trade Center attack.
Such an approach is consistent with the "ticking bomb" doctrine, which offers common-sense guidance in the war against terrorism. It means that if a bomb is about to explode, coercive methods are justified against the captured bomber and his accomplices to save the lives of innocent civilians. That is the way we viewed the world after 9/11; the American people expected their government would take the gloves off to deal with terrorists who had done immense damage on the soil of the United States and planned still more.
Can we imagine that people who were prepared to fly airplanes into skyscrapers, holy warriors who live to die and kill the infidels as an expression of their religious faith, would yield to noncoercive interrogations of very limited psychological impact? Political leaders were scrambling to respond to a unique situation as best they could. Nobody knew how many additional attacks might take place. People were making quick judgments, some of which were undoubtedly wrong. Surely, this should not taint those public servants in our intelligence services who did their duty in critical and confusing times pursuant to the legal guidance provided, should it?
The CIA no longer operates black sites and no longer employs enhanced interrogation techniques. It has to acquire the information and intelligence essential to the protection of the country by other means. It has to take risks and do that in a climate where telephone taps and monitoring of money transfers are now made public by the media, thus making everything vulnerable to a steady stream of congressional and legal objections.
We count on the CIA to be the first line of defense in our war against al Qaeda and to deter future attacks. But are the thousands of men and women in the agency now to be led to understand that they had better not do anything remotely controversial on behalf of America's safety? Even if they have the permission of lawyers and the sanction of this administration, what if the next administration feels different? All bets are off. The agency will be pushed back into a risk-averse pre-September 11 mentality.
Something is awry here. Must we preclude U.S. personnel from killing terrorists with sniper rifles or car bombs? We don't have a problem with the CIA and Defense Department hunting down specific terrorist leaders and then killing those leaders with unmanned drones or Predator missiles, even though there is a possibility of civilian casualties. The Predator strikes in Afghanistan have killed many of the Taliban leaders near the Afghan-Pakistani border. Without these attacks, the situation would certainly have become much worse in the region. Surely, there is an analogy here to what the CIA must do in the shadowy war against terrorists who do not wear military garb.
It gets worse. Not only has the administration dealt a shattering blow to the CIA for actions in the past, but it now also seeks to weaken our ability to monitor threats in the future. This is the effect of the plan to place high-value interrogations under the control of a multiagency group that will be limited to the noncoercive methods of the Army Field Manual. This group will be answerable directly to the president and the FBI. It will be unlikely to attract the best operatives from the CIA or the FBI to sign on. This is tantamount to downgrading the war on terrorism, as Daniel Henninger of the Wall Street Journal put it, "to not much more than tough talk."
The president was right the first time when he told the CIA he wanted to look forward and not back. Yet he has sanctioned a divisive frenzy with a special prosecutor who, once launched, cannot be fully recalled or directed, all against the advice of the very responsible CIA director, Panetta, and four prior CIA directors.
There is a historical reference point. British Prime Minister Neville Chamberlain was at the center of a program to force the Poles to give territory to Germany on the eve of World War II in order to appease the Nazis. After he resigned in May 1940, there was powerful political pressure for an inquiry into what had really happened. But his successor, Prime Minister Winston Churchill, was appalled at the possibility that such an inquiry would cause a split in British national unity during wartime. He refused the political pressure from his allies to expose Chamberlain's policy. "I put it on the shelf," he told the House of Commons, "from which the historians, when they have time, will select their documents to tell their stories." We have to think of the future and not the past.
As only Churchill could have expressed it, "If we open a quarrel between the past and the present, we shall find that we have lost the future." President Obama would be wise to pay heed to this great statesman.