Politics & Policy

Drop the Investigation of CIA Interrogators

The legal and policy considerations argue against an investigation, let alone a prosecution.

‘We’re going to follow the evidence wherever it takes us, follow the law wherever that takes us.” So decreed Attorney General Eric Holder in April when asked whether government officials would face prosecution over coercive interrogation tactics used against terrorist detainees. After all, he elaborated, “no one is above the law.”

Tell that to the voters in Philadelphia who were threatened by nightstick-wielding Obama supporters from the New Black Panther Party. The Panthers got a pass even after they contemptuously ignored court process and even after the government already had prevailed in the case because of their default. For the Obama/Holder Justice Department, other considerations outweighed following the evidence wherever it led. The Panthers who turned out to be above the law include Jerry Jackson, a credentialed Democratic-party poll-watcher who brays on MySpace about “Killing Crakkkas.” Thanks to Holder’s decision, Jackson is right back in business, having obtained new poll-watcher credentials just days after DOJ dismissed the case.

The CIA interrogators are having a rougher time with prosecutors than did the Black Panthers. They are retaining counsel and preparing for a lengthy investigation that likely will prove personally and professionally ruinous. The Los Angeles Times reported over the weekend that Holder is close to naming a prosecutor to probe whether the agency and its officers committed criminal misconduct.

The interrogators — whose use of harsh tactics resulted in the capture of leading jihadists, the disruption of mass-murder plots, and the saving of American lives — are in a different posture from that of Binyam Mohammed. Mohammed was a leading jihadist who had been plotting some of those disrupted mass-murder attacks that were to take place in American cities. He was slated for prosecution by military commission. But it turned out that he was above the law, too.

Mohammed had been subjected to extraordinary rendition. Begun during the Clinton administration (in which Holder served as deputy attorney general), rendition involves Western intelligence agencies’ handing captured terrorists over to Third World countries that do not follow our punctilious interrogation practices, meaning that we look the other way while they do far nastier things than what Holder wants to investigate the CIA for doing. In Mohammed’s case, following the evidence wherever it took us would have involved a look-see into this seamy practice. It would, moreover, have exposed the collusion of British (and possibly American) intelligence agents in Mohammed’s transfer to Morocco, where he says he was tortured. So the Obama administration decided that prosecutorial discretion is the better part of valor: The terrorist was quietly extradited to Britain, where he is living free and clear. In fact, he’ll be speaking at a fundraiser in London later this month — if you act quickly, there are still a limited number of women-only balcony seats available.

The CIA interrogators will need some fundraisers, too. By the time Justice is through with them, they will be above their eyeballs in legal fees and lost employment opportunities, even if they are not ultimately charged. Indeed, the Los Angeles Times notes that several officers have put off retirement plans. They are staying in the agency “so that they can maintain their access to classified files and be in a better position to defend against a Justice investigation.” At least they’ll have a reason for being there. Their co-workers won’t. The Obama administration’s message to the intelligence community is crystal clear: Today’s actions to protect the United States may very well yield tomorrow’s indictments.

Holder is big on lecturing Americans about their purported “cowardice” when it comes to matters of race (the official obsession of the first “post-racial” presidency), but when it comes to doing the job he’s actually been hired to do, i.e., make prosecutorial calls that are sound but possibly unpopular, he’s not exactly a profile in courage.

The truth is that prosecutors don’t always follow the evidence wherever it leads. If they did, every crime would result in charges; in fact, many crimes, if not most, do not. The “rule of law” about which this attorney general is fond of speaking has always involved discretion: An administration and its prosecutors make policy choices about where to allocate the scarce resources available for crime-fighting. Very often, the guilty are knowingly permitted to go free — not because they are above the law but because factual guilt is neither the only nor the most significant factor in many cases.

In the case of the interrogators, the argument against further investigation (let alone prosecution) is overwhelming. If we take just waterboarding, the legal prerequisites simply aren’t there. Although President Obama seemed to absolve the CIA of liability back in the spring, both he and his attorney general left the prosecutorial door open a crack for interrogators who went beyond the controversial guidance DOJ had issued in 2002. But that guidance did not establish lines between lawful and unlawful conduct. To be guilty of a crime, you have to violate a statute, not a memo.

Here, the Justice Department is caught between the administration’s red-meat rhetoric and its staid legal analysis. When speaking for the benefit of their anti-war base, Obama and Holder thoughtlessly brand all waterboarding as “torture” — no matter how or why it is administered. But in court cases (as I’ve detailed here), the Justice Department has quietly conceded that federal law makes torture exceedingly difficult to prove (i.e., federal law ensures that the ignominious label “torture” is reserved for especially heinous, malevolent abuse). Not only must there be an infliction of extreme physical or mental suffering; the government must prove beyond a reasonable doubt that the defendant specifically intended to torture his victim. In congressional testimony, Holder himself has admitted that if a government official had a purpose different from causing extreme pain, he could not be guilty of torture even if he actually caused extreme pain.

It is highly unlikely that the CIA interrogators induced the excruciating pain necessary to commit torture as a matter of law. Regardless of whether they did, though, it is abundantly clear that they were not trying to torture anyone. That doesn’t mean any harshness that exceeded DOJ guidance was a good thing, or that administrative discipline is not an option for interrogators who went overboard. It also doesn’t mean that Congress is barred from tweaking the torture statute so that, in the future, the crime is not so tough to prove. But it does mean Holder shouldn’t need to assign a prosecutor to grasp that there is no good-faith basis to proceed with a criminal investigation. Contrary to the apparent lesson of the Black Panther case, a desire to please the left wing is not generally thought of as a good-faith basis for either dropping or pursuing a prosecution.

Which brings us to the last point: Even if there weren’t insuperable legal hurdles to a torture prosecution, there are patently obvious policy reasons not to go where the attorney general is thinking of going. The 9/11 atrocities should not have happened. The nation was vulnerable to them, however, because of a governmental culture of risk-aversion: Justice Department rules discouraged cooperation between intelligence agents and criminal investigators; the FBI refused to allow its criminal investigators to help locate two of the suicide-terrorists its intelligence division had discovered were in the country a couple of weeks before the attacks; Osama bin Laden was not killed when the chance presented itself because the rules of engagement were loaded with so many caveats that CIA agents were unsure whether they’d be acclaimed or indicted.

We have been down this road before and we know where it leads. Eric Holder has managed to find reasons not to follow the evidence wherever it takes him on a number of occasions in his career. It’s not much of a stretch to conclude that promoting national security is a better rationale than the ones that have sufficed to date.

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