More than one CIA officer quoted in the just-released 2004 CIA inspector general’s report worried that that the political climate would change and the CIA would be hung out to dry. And so it has come to pass. On the same day the IG report was made public — with the media hyping its most disturbing passages — Attorney General Eric Holder assigned a prosecutor to assess whether criminal cases should be re-opened against CIA officers and contractors.
According to news accounts, Holder was shocked into his decision by reading the IG report. It is certainly uncomfortable reading at times. CIA officers are said to have intimidated detainees with a gun and power drill, with threats against their families, and with staged mock executions. These tactics may well have been permissible under the Justice Department’s broad definition of “torture,” a designation the law reserves for truly barbaric abuse. But the tactics were not within the narrower framework of explicitly authorized CIA interrogation practices. Though that framework left some room for improvisation, the use of these tactics obviously exhibited very poor judgment. The CIA dealt with this foolish freelancing in a responsible manner at the time.
Panetta described what happened next in a letter to CIA employees yesterday:
The CIA referred allegations of abuse to the Department of Justice for potential prosecution. This Agency made no excuses for behavior, however rare, that went beyond the formal guidelines on counterterrorism. The Department of Justice has had the complete IG report since 2004. Its career prosecutors have examined that document — and other incidents from Iraq and Afghanistan — for legal accountability. They worked carefully and thoroughly, sometimes taking years to decide if prosecution was warranted or not. In one case, the Department obtained a criminal conviction of a CIA contractor. In other instances, after Justice chose not to pursue action in court, the Agency took disciplinary steps of its own.
In his statement announcing his decision to have prosecutor John Durham reexamine the cases, Holder doesn’t explain what was inadequate about this initial handling of the cases. The career prosecutors took a pass — except in the above referenced case when a contractor beat to death a detainee — because they couldn’t make a case. (Obviously, not all conduct that is foolish or offensive constitutes a crime.) Does Holder, say, really think they should have tried to prosecute whoever verbally threatened Khalid Sheik Muhammed’s children — with KSM as the star witness?
The only reason we can fathom for wanting to return to this ground is a political one — to try to satisfy a Left still braying over the Bush’s administration’s alleged war crimes. Politically, Holder has executed what he might imagine is a perfect straddle. He can tell the Left he’s investigating the crimes of the Bush years while he tells everyone else he’s only investigating whether to investigate in a limited number of cases.
If it really was the IG report that prompted Holder’s action, we wonder if he read the same one we did. Yes, the report concludes that the interrogation program wasn’t tightly controlled enough at the beginning. But it also makes it clear again and again that the CIA wanted legal guidance from DOJ and with a few exceptions — the exact method of waterboarding differed from what the DOJ authorized — followed it closely. This was not the work of an agency bent on defying the law.
On the utility of the overall interrogation program, the report is categorical. “There is no doubt that the Program has been effective,” it says. “Detainees, both planners and operatives, have . . . made the Agency aware of several plots planned for the United States around the world.”
When it comes to the controversial enhanced techniques, the report suggests — to the extent it can be determined — that they worked: “It is not possible to say definitely that the waterboard is the reason for Abu Zubaydah’s increased production, or if another factor, such as the length of detention, was the catalyst. Since the use of the waterboard, however, Abu Zubaydah has appeared to be cooperative”; “because of the litany of techniques used by different interrogators over a relatively short period of time, it is difficult to identify exactly why [Abd al-Rahim] al-Nashiri became more willing to provide information. However, following the use of EITs, he provided information about his most current operational planning and [redacted] as opposed to the historical information he provided before the use of EITs”; “Khalid Sheikh Muhammad, an accomplished resistor, provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate, or incomplete.”
There is no reason to believe that the interrogators involved in this program were motivated by anything other than a desire to obtain just the kind of information they elicited in order to protect their countrymen. Now, caught up in the political and legal maelstrom that Holder has unleashed, they will get their reward — good and hard. Surely it’s cold comfort that some of them saw it coming all those years ago.