The Washington Post continues to campaign against
any accountability for the detentions policies
of the Central Intelligence Agency, using its
own editorials and oped writers as well as outsiders
who support the efforts of the newspaper.
Today, one day after the release of the 2004
CIA inspector general report that documented
the use of torture and abuse, a Post editorial
actually claimed that “it’s impossible
to say, on the basis of information made public
so far, whether prosecution is warranted”
and that, since the Bush Justice Department
already declined prosecution, it would be “unsettling”
to pursue even those CIA operatives who used
“unauthorized, improvised, inhumane and
undocumented” techniques.
The Post is willing to exonerate these operatives
because they were “clamoring” constantly
for guidance about what it should and should
not do; in fact, CIA director George Tenet and
Deputy Director John McLaughlin were more interested
in protection than guidance.
On Monday, the paper went judge-shopping in
the courthouse and published an oped by Jeffrey
H. Smith, who is a well-known lawyer with Arnold
& Porter, one of Washington’s most
prestigious law firms, and the CIA general counsel
from 1995-1996. Smith created the most fatuous
argument of all for not prosecuting the interrogators
and apparently has no understanding of the Nuremberg
Laws, which declared that following orders was
no defense and that crimes committed by individuals
for state purposes were the responsibility of
individuals and were punishable under law.
Smith concedes that “we lost our bearings”
after the 9/11 attacks and “squandered
our credibility,” but fails to acknowledge
the sordid and sadistic activities that the
nation sponsored and the CIA implemented. His
six reasons range from the disingenuous to the
downright unconscionable.
Reason #1: The CIA techniques were authorized
by the president, approved by the Justice Department,
and briefed to the proper congressional committees.
Since the techniques were “legal,”
it will be “very difficult” to pursue
prosecutions. The fact is we simply don’t
know if all techniques were actually authorized,
which is a major reason for an investigation,
and the Justice Department is emphasizing those
techniques that went beyond authorization. The
level of difficulty of the prosecution is not
a reason to stand down in this case, particularly
since U.S. laws and Constitutional amendments
were broken. The fact that high-level CIA officials
destroyed the torture tapes suggests that there
were actions that went beyond the Bush administration’s
mandate and that sordid and sadistic acts were
committed.
Reason #2: Since the CIA provided its 2004
report to the Justice Department and the department
refused to prosecute any CIA officers, it would
be “dangerous to settle policy difference
at the expense of career officers. This, of
course, is arrant nonsense! Bush’s Justice
Department was a politicized government agency
that has come under intense scrutiny because
of its handling of the firing of U.S. attorneys
as well as issues related to interrogation policy.
The decisions on the 2004 report were made by
prosecutors and lawyers who reported to a politically-appointed
assistant in the Attorney General’s office.
John Ashcroft was the attorney general and he
lied to congressional committees.
Reason #3: After the Justice Department declined
to prosecute, the CIA took administrative action,
including disciplinary action against those
officers whose conduct it deemed warranted such
responses. This is a misinformed statement or
an outright lie! No high-level Agency official
has suffered as a result of the conduct of torture
and abuse, which conforms to previous CIA misdeeds.
High-level officials who politicized intelligence
for Deputy Director Robert Gates in the 1980s
did not suffer; officials who crafted Secretary
of State Colin Powell’s phony speech to
the UN prior to the Iraq War did not suffer;
analysts who lied about Iraqi weapons of mass
destruction did not suffer. In fact, the record
clearly states that guilty parties in all of
these affairs saw their careers prosper.
Reason #4: “Prosecuting CIA officers
risks chilling current intelligence operations.
Such prosecutions are likely to create cynicism
in the clandestine service, which is deeply
corrosive to any professional service.”
This is Smith’s most fatuous argument
and the one that CIA director Leon Panetta is
peddling to the congress and the American people.
The fact is that the failure to hold wrongdoers
accountable is corrosive to morale and that
CIA directors Tenet and Goss had to resort to
independent contractors because so many professional
Agency officers refused to take part in illegal
activities. IG John Helgerson commissioned the
2004 study because so many Agency officers “expressed
to me personally their feelings that what the
Agency was doing was fundamentally inconsistent
with long-established US Government policy and
with American values, and was based on strained
legal reasoning.”
Reason #5: Prosecutions could deter cooperation
with other nations. Smith could not be more
wrong! It was the CIA’s policies of secret
prisons, erroneous renditions, and torture and
abuse that corroded the liaison efforts of the
Western intelligence network, which is the key
to a successful campaign against international
terrorism. European agencies became reticent
to share intelligence with the United States
because they were opposed to CIA’s abusive
practices. The evidence is ample here and presumably
even Smith must know this.
Reason #6: President Obama does not want to
be distracted by looking backward and coping
with congressional investigations and grand
jury subpoenas. We as a nation must know the
full extent of the Bush administration’s
misuse of government agencies and government
personnel. We need to know what happened in
order to make sure that this kind of activity
can never happen again.
Smith’s exculpatory brief on the behalf
of his putative clients, the Washington Post
and the CIA, is particularly disgraceful in
view of the unconscionable activities that have
taken place over the past decade. In order to
restore the credibility of our intelligence
services, permit foreign intelligence agencies
to cooperate with us, and reverse the damage
that has been done to U.S. foreign and national
security, we must know the full extent of the
role of the Central Intelligence Agency.
Melvin A. Goodman, a senior fellow at the
Center for International Policy and adjunct
professor of government at Johns Hopkins University,
is The Public Record’s National Security
and Intelligence columnist. He spent 42 years
with the CIA, the National War College, and
the U.S. Army. His latest book is Failure of
Intelligence: The Decline and Fall of the CIA.
Copyright 2009 The Public
Record
