By David Ignatius
Wednesday, July 15, 2009 8:27 PM
As other countries watch the United States lacerate its intelligence service -- for activities already investigated or never undertaken -- perhaps they admire America's commitment to democracy and the rule of law. More likely, I fear, they conclude that we are just plain nuts.
The latest "scandals" involving the Central Intelligence Agency are genuinely hard to understand, other than in terms of political payback. Attorney General Eric Holder is considering appointing a prosecutor to investigate criminal actions by CIA officers involved in the harsh interrogation of al-Qaeda prisoners. But the internal CIA report on which he's said to be basing this decision was referred five years ago to the Justice Department, where attorneys concluded that no prosecution was warranted.
Meanwhile, Democrats in Congress are indignant that they were never briefed about a program to assassinate al-Qaeda operatives in friendly countries. Never mind that the program wasn't implemented, or that the United States is routinely assassinating al-Qaeda operatives using unmanned drones. And never mind that Leon Panetta, the new CIA director -- fearing a potential flap -- briefed Congress about the program soon after he became aware of it. There was a flap anyway -- with a new hemorrhage of secrets and a new shudder from America's intelligence partners around the world.
Oversight of these secret activities is necessary. But turning the CIA into a political football, as both Republicans and Democrats have done in recent years, defeats the purpose of oversight. That was true when Republicans were bashing the agency for supposedly obstructing the Bush administration's policies, and it's true now when Democrats are scrounging for evidence to prove that House Speaker Nancy Pelosi was right when she accused the agency of lying about its activities.
President Obama has tried to end this "gotcha" culture -- to start looking forward, rather than backward, as he put it -- from his first day in office. He said it plainly in his inaugural address: "On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas that for far too long have strangled our politics."
Obama said it again when he visited the CIA on April 20. Against the advice of Panetta and other intelligence professionals, he had decided to release the text of Justice Department legal memos on interrogation, which showed in ugly detail that the agency had been given legal authority to torture al-Qaeda captives. But he offered agency officials a grand bargain. The facts about interrogation would be disclosed, but CIA officers who relied on the Justice Department's advice wouldn't face prosecution.
CIA veterans were skeptical about Obama's promise, especially when the president said the next day that Holder would make the final decision. But lawyers who studied the case thought Holder would decide against a prosecutor because he almost certainly couldn't get convictions. It would be impossible to prove "criminal intent" for CIA interrogators who operated within the framework of the Justice Department's guidance. And as for "unauthorized practices" outside the guidelines -- such as kicks, threats and other abuse -- that were revealed in a 2004 report by the CIA's inspector general, Justice Department attorneys had already concluded that these actions didn't warrant criminal prosecution.
Holder is said to have been sickened by what he read about the interrogations. And who wouldn't be? It was a dark chapter in American history that should never be repeated, and Obama has rightly changed the rules. But what would be accomplished by the appointment of a prosecutor in a case where criminal intent would be so hard to prove? The only certainty is that the process would damage careers and morale at the CIA.
"Will anyone go to jail? Probably not. But you will leave a trail of destroyed officers," predicts one CIA veteran. Meanwhile, I fear, CIA employees will steer away from areas such as counterterrorism, where the political winds may change.
Obama understands that the country needs a better and stronger intelligence agency. He wants more information than he gets in his daily intelligence briefings, and he has discussed with Panetta the challenge of building a tougher, smarter, more aggressive CIA. That's a righteous goal, but it begins with depoliticizing the agency and ending the culture of permanent scandal.
If Obama means what he has said about looking forward rather than backward, then he should stick to his guns -- and hope that the attorney general and House speaker agree that it's time to stop kicking this football.