Following the CIA Torture Trail

Tuesday, August 25, 2009

"AN OLD STORY," CIA Director Leon Panetta said yesterday upon the release of a report by the agency's inspector general on the interrogation of terrorist suspects. Old, perhaps -- the report was completed in 2004 -- but nonetheless revolting.

The line between authorized interrogation techniques and those that were not approved seems capricious. Which is worse: Withholding sleep for 11 days or threatening to kill someone's children? Waterboarding or revving a power drill near a naked, hooded detainee? The first were blessed by the lawyers at the Bush Justice Department, who pronounced, incredibly, that they did not constitute torture. President Obama and Attorney General Eric H. Holder Jr. have said, correctly in our view, that CIA operatives who acted in good-faith reliance on that twisted advice will not be subject to criminal prosecution.

What to do, then, about conduct that was not explicitly allowed? The flip side of shielding those who followed the rules is that those who went beyond what was permitted are subject to being charged with torture. It's impossible to say, on the basis of the information made public so far, whether prosecution is warranted. In the version of the inspector general report released yesterday, enormous sections are blacked out, and a separate report by the Justice Department's Office of Professional Responsibility has not yet been released. But Mr. Holder's move to have a special prosecutor conduct a preliminary criminal review appears justified. His choice, John Durham, a career Justice Department prosecutor from Connecticut, has already been investigating the related matter of the destruction of videotapes of the interrogations.

Still, there are aspects of using the criminal law in this unfortunate circumstance that give us pause. For one, the conduct at issue appears already to have been referred to the Justice Department -- the Bush Justice Department -- and prosecution was declined. There is something unsettling about telling operatives that they are off the hook, only to have that stance change with a new administration. For another, the report underscores what little appetite the CIA had for getting back into the business of ugly interrogation (it had been so burned that it changed the term, at one point, to "human resource exploitation"); the agency was clamoring constantly for guidance about what it should and should not do.

Most tellingly, the report shows how clearly those involved in the interrogations foresaw the moment when, having been pressured by higher-ups to elicit information that high-value detainees were thought to be withholding, they would find themselves called to account for their actions.

The real culprits in this sordid story are those higher-ups, starting with former president George W. Bush and former vice president Richard B. Cheney, who led America down the degrading path of state-sanctioned torture and left the next administration to cope with the fallout.

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