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To Prosecute or Not to Prosecute?

Monday, August 24, 2009 7:12 PM

Following the release of an internal CIA report documenting extreme interrogation techniques, Attorney General Eric Holder appointed a special prosecutor Monday to investigate allegations of detainee mistreatment during the Bush administration. The Post asked experts if criminal charges should be brought against CIA interrogators. Below are contributions from Mark M. Lowenthal, Kenneth Roth, Marc A. Thiessen, Elisa Massimino and Michael Rubin.

MARK M. LOWENTHAL

Former Assistant Director of Central Intelligence for Analysis & Production; president, The Intelligence & Security Academy

There is an unwritten understanding between intelligence officers and the policymakers for whom they work. Intelligence officers undertake great risks with the expectation that they will be protected by those who gave them their orders. This possible prosecution now warns that policymaker support is both evanescent and, worse yet, partisan in nature. The message unfortunately becomes: no policymaker support is good past the next election. Intelligence officers will, of necessity, become less and less willing to take risks, knowing that they are inevitably subject to prosecution based largely on an electoral outcome.

Prosecuting civil servants for "misdeeds" that occurred in a past administration and were undertaken with the sanction of the Justice Department is also without precedent in our history. We treated the leaders of the Confederacy, who had actually committed treason as defined in the constitution ("levying war" against the United States), better than this. Nor did we prosecute those responsible for the internment of Japanese Americans, citizens whose rights were violated.

This is a stark change from how intelligence was handled throughout the Cold War, when each successive administration treated intelligence as a bipartisan issue despite five partisan electoral changes. President Obama appears to want it both ways: leaving the intelligence community open to partisan indictment and then expecting their wholehearted support. And yet, even as Obama claims "hands off," he errs by bringing interrogation policy into the White House, making his office personally responsible in the future.

KENNETH ROTH

Executive director of Human Rights Watch

CIA interrogators who tortured suspects should certainly face criminal charges, but prosecutions shouldn't stop there. The attorney general's decision to investigate the abuse of detainees could be a step in the right direction if the investigation includes those who ordered such abuse, even if they brandished legal opinions designed to evade the federal prohibition on torture. These senior officials should have known that torture is always illegal, even in time of war, and that the "torture memos," far from a conscientious effort to interpret the law, stretched it beyond recognition to give legal cover for torture. Those who authorized and drafted these memos, as well as those who ordered or acquiesced in their use to guide interrogators, should head future indictments.

Prosecuting only low-level interrogators would be unfair and a disaster. It would endorse the Bush theory, promulgated after Abu Ghraib, that abuse was the product of a few "bad apples" rather than official policy. It would legitimize using pliant lawyers to bless illegal practices -- inviting future official lawlessness. And it would ride on such irrational distinctions as the claim that mock execution is criminal if done by gun or power drill but legitimate if done by Bush-approved water-boarding.

MARC A. THIESSEN

Visiting fellow at the Hoover Institution; served in senior positions in the Pentagon and White House from 2001 to 2009, most recently as chief speechwriter to President George W. Bush

Since taking office, the Obama administration has prosecuted the CIA in the court of public opinion. Now it is taking its campaign into the court of law. The allegations in the CIA inspector general's report were reviewed five years ago -- not by Bush appointees, but by career prosecutors. Those career prosecutors decided not to pursue criminal charges (except in one case where a CIA contractor was convicted of assault). Now political appointees in the Obama administration are reversing those decisions, and Attorney General Eric Holder is appointing a special prosecutor who -- he promises -- will investigate only a small number of officials. But once a special prosecutor is appointed, there is no controlling where the investigation may lead. Such prosecutions will harm our national security -- putting the agency on the defensive at a time when we need the CIA to be on the offensive against the terrorists.

There is, however, another indictment hidden in the IG report that has largely escaped notice. House Speaker Nancy Pelosi has charged the CIA with lying to Congress, alleging the agency told her that enhanced interrogation techniques were not in use. But the IG report confirms that "in the fall of 2002, the agency briefed the leadership of the Congressional Intelligence Oversight Committees on the use of both standard techniques and EITs" and that the CIA "continued to brief the leadership of the Intelligence Oversight Committees on the use of EITs and detentions in February and March 2003." Perhaps it is time for Pelosi to finally apologize?

ELISA MASSIMINO

CEO of Human Rights First

Criminal investigations for human rights violations are essential to deterring future abuses and restoring public confidence in the rule of law. Attorney General Eric Holder's preliminary review into the treatment of certain prisoners in U.S. custody is an important first step. But to ensure that our nation does not repeat this sorry chapter in its history, these investigations must examine the conduct of the architects of the system of torture and other cruelty.

Assertions that legal memos can provide absolute immunity from criminal liability or that only lower-level CIA agents should be held accountable are at odds with U.S. law and American values. The validity of any defenses for abusive conduct should be determined through case-by-case factual investigations and should focus on those who were most responsible for setting the stage for abuse. Failure to hold perpetrators of human rights abuses accountable will impair the ability of the United States to regain the moral high ground in its counterterrorism operations and undermine U.S. efforts to promote the rule of law around the world.

MICHAEL RUBIN

Resident Scholar at the American Enterprise Institute

CIA interrogators should not face criminal charges. Those who seek to prosecute Bush officials and the CIA make two mistakes: First, like armchair dictators, they aim to impose their own definition of torture where no consensus exists. Further, they misunderstand the role of government lawyers. Government lawyers are not policymakers who impose personal views about, for example, what constitutes torture; they are facilitators meant to ensure that administrations follow the letter of the law. The intelligence community sought guidance from government lawyers, and, though the human rights community may not like it, they rightly concluded that the Geneva Conventions apply fully only to legitimate combatants, in uniform, with arms carried openly, who operate according to the laws of war. They found that creating stress is not illegal.

The CIA should, however, learn a lesson. It became a political football because too many employees leaked with impunity. They poured gasoline on a political fire; now they will get burned.

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