Consider this a preemptive handwringing. There’s a lot that remains unknown about Attorney General Holder’s apparent second thoughts about pursuing a criminal investigation into the CIA’s Bush-era torture program. And this piece that Marc Ambinder wrote and Marcy commented upon has some qualifications for what I’m about to write. But there’s initial reason to worry about the focus of what Holder is reportedly considering. Consider these last two grafs from the New York Times‘ account:
The Justice Department official who confirmed the likelihood of an inquiry said it was not likely to focus on those legal opinions, the lawyers who wrote them or anyone who acted within the boundaries they set, even though the ground rules for interrogations have shifted.
If an inquiry moves forward, it will attempt mainly to determine whether any interrogators acted outside the rules that were in place, and if so, whether they should be prosecuted. Some such excesses are thought to have occurred.
Now, according to the initial Daniel Klaidman report in Newsweek breaking the story, Holder has been persuaded by the still-classified 2004 CIA inspector general’s report on how the torture regime worked in practice. So we should expect that the report will contain horrible, stomach-churning accounts of torture. If Klaidman’s painting an accurate picture of Holder — and I have no reason to doubt that he is — the attorney general would prefer ignore the question of prosecuting torturers, but the report won’t let him.
Here’s exactly where I worry that things are going to go haywire. It’s unfair on the face of it to go after the CIA interrogators who went off on detainees in CIA custody while leaving untouched the architects of the torture regime. The cohort described by the Times that Holder may look at is a subsection of a subsection of the torture apparatus: the interrogators who went beyond the already-twisted legal instructions provided by CIA’s general counsel and blessed by the Yoo and Bradbury memos from the Justice Department, which were crafted at the behest of the top officials at CIA, Dick Cheney and George W. Bush. The most-vulnerable clients, in other words, are the ones being singled out here.
The parallel to Abu Ghraib is unmistakeable. Lynddie England and Charles Graner were sadists who deserved punishment. But the atmosphere of command responsibility at Abu Ghraib — and from Abu Ghraib up the chain of command in Iraq, and from the U.S. military commander in Iraq up to the Department of Defense that instructed Abu Ghraib to get "Gitmo-ized" — did not receive the same legal scrutiny. To put it charitably, that made their prosecutions an insufficient application of justice. Here, it appears, Holder would be doing the much the same thing, except worse: CIA’s torture program received, by most accounts, far more top-level involvement and coordination — and certainly legal cover — than the Defense Department’s. We’re talking about a handful of interrogators at a handful of black sites whose efforts were constantly briefed back to CIA headquarters, not a huge network of prisons spread across GTMO, Afghanistan and Iraq.
There was surely "improvising" at the black sites from beyond what the OLC memos authorize. The 2004 CIA IG report documents it. But read through those 2002 and 2005 OLC memos from Yoo/Bybee and Bradbury. They do not get very specific in their actual legal guidance for how torture ought to be carried out — rather, they give broad legal exculpation for how torture techniques within the penumbra of what the memos discuss can be legal. That’s how in 2002 the memos approve sleep deprivation, but in practice, interrogators inflicted sleep deprivation by putting detainees into such painful stress positions that they couldn’t sleep; and how in 2005, when faced with news of that from the 2004 IG report, the OLC lawyers blessed those techniques anyway. In 2003, then-CIA Director George Tenet put out actual guidelines for CIA interrogators to follow. But how specific did any of this get? How easy will it actually be to determine whether an interrogator knowingly crossed the line?
I would contend that the further down this road we go, the more we lose the plot. Any fair, credible and thorough assessment of CIA torture has to include the climate of command responsibility within which any interrogator operated. If an interrogator felt he had license for impunity, the question has to be who created that perception of license. To center the question around the interrogator himself is to create a deeply unfair burden on the frontline CIA officers who had reason to believe they were carrying out actions their superiors wanted them to perform. Blaming the triggerman is not justice.
I’ve written at length about why blaming the CIA is typically a dodge, a category error or a displacement of responsibility on the policymakers from whom CIA’s costliest "errors" generate. The worst of all possible worlds is one in which the men tasked with being the pointy end of the torture apparatus bear the criminal burdens of the men and women who constructed that awful machine. All I know about these potential prosecutions is what I’ve read. Ambinder’s piece and Klaidman’s piece both reflect on the concerns of Obama, Leon Panetta and Rahm Emanuel, which mirror those expressed in this post. So maybe the focus of these prosecutions won’t turn out this way. For justice’s sake, they shouldn’t.
I haven’t yet touched on the additional concern about pushing the CIA back into a hidebound, risk-averse mindset. In large part, that’s because my conversations over the years with CIA officials have left me with the impression that that’s a dubious argument. CIA suits up to play, and while the specter of prosecutions is an obvious hindrance, that’s why the agency has lawyers. But there’s something to this worry, and I want to save a proper taxonomy of what’s legitimate and illegitimate about it it for a separate post.
Update: Glenn Greenwald’s post on this is typically elegant, and deserves attention from anyone — I’m thinking of you, Mike Hayden, and you too, John Brennan — who considers Glenn a knee-jerk enemy of CIA. Glenn’s update, flagged to me by SGWhiteInFla, points to Scott Horton’s Daily Beast report about a broader scope for the prosecutions than detailed here. Like Glenn, I’ll believe it when I see it. Also check out Tim F.’s Balloon Juicery on the subject.