U.S. Interest Might Not Be Served by CIA Prosecutions

By Jeffrey H. Smith
Monday, August 24, 2009

The CIA inspector general's report on "enhanced interrogation techniques," scheduled to be released today, is said to provide disturbing details about interrogations CIA officers conducted from 2002 to 2004. It will be painful reading. Although the Obama administration has banned the techniques, Attorney General Eric Holder is reportedly considering prosecuting some of the officers who conducted the interrogations.

We lost our bearings in the wake of the attacks of Sept. 11, 2001. The United States, long a leader in human rights and the law of war, adopted policies and practices that squandered our credibility. Over time, President George W. Bush recognized that and reversed some of those policies. In one of his first acts, President Obama went further and banned the enhanced techniques, closed the secret CIA prisons and pledged to close the prison at Guantanamo Bay.

Have we done enough to restore our credibility and correct past wrongs, or are prosecutions also needed? We don't yet know what has caused the attorney general to consider prosecution. Enforcing the law is an important function of government. But the government also has broader responsibilities. Here are six reasons prosecutions are not in the nation's best interests:

-- First, these techniques were authorized by the president and approved by the Justice Department. The relevant committees of Congress were briefed. Although the Justice Department's initial legal opinions were badly flawed, the fact remains that the agency responsible for interpreting and enforcing the law said the techniques were "legal." That alone will make prosecutions very difficult.

-- Second, the CIA provided the inspector general's report to the Justice Department in 2004. Justice has not prosecuted any CIA officers but did successfully prosecute a contractor who beat a detainee to death, an incident that was initially reported to the department by the CIA. What has changed that makes prosecution advisable now? No administration is above the law. But the decision of one administration to prosecute career officers for acts committed under a policy of a previous administration must be taken with the greatest care. Prosecutions would set the dangerous precedent that criminal law can be used to settle policy differences at the expense of career officers.

-- Third, after Justice declined to prosecute, the CIA took administrative action, including disciplinary action against those officers whose conduct it deemed warranted such responses. This is standard procedure; reports of possible criminal activity must be referred to Justice. If it declines to prosecute, the matter is sent back to the CIA for appropriate administrative action.

-- Fourth, prosecuting CIA officers risks chilling current intelligence operations. This country faces an array of serious threats. A prosecution or extensive investigation will be an unmanageable expense for most CIA officers. More significant, their colleagues will become reluctant to take risks. What confidence will they have when their senior officers say not to worry, "this has been authorized by the president and approved by Justice"? And such reactions would be magnified if prosecutions focus only on the lower-ranking officers, not those in the chain of command. Such prosecutions are likely to create cynicism in the clandestine service, which is deeply corrosive to any professional service.

-- Fifth, prosecutions could deter cooperation with other nations. It is critical that we have the close cooperation of intelligence services around the world. Nations often work together through their intelligence services on matters of mutual interest, such as combating terrorism, even if political relations are strained or nonexistent. The key to this cooperation is the ability of the United States to be a reliable partner and keep secrets. Prosecuting CIA officers undermines that essential element of successful intelligence liaison.

-- Sixth, President Obama has decisively changed the policies that caused so much damage. He recognizes that it is vital to our security to have an effective intelligence community that is not distracted by looking backward and coping with congressional investigations and grand jury subpoenas.

If media reports are accurate, the conduct detailed in the inspector general's report was contrary to our values. It caused harm to our nation and cannot be repeated. But prosecuting those who actually carried out that behavior has consequences that could further harm our nation. Even if the attorney general concludes that a criminal charge could be brought, other factors must be considered. Sometimes broader national objectives must be given greater weight.

The writer, a partner at Arnold & Porter, was general counsel of the CIA from 1995 to 1996.

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