House Judiciary Chairman John Conyers (D-MI) is demanding the appointment of a special prosecutor to investigate CIA interrogation practices. Attorney General Michael Mukasey has refused. As is his wont, the AG has explained himself in a letter which makes one wish the president had brought him on board years earlier. The conclusion of the letter is worth quoting in full:
I understand that you and some of your colleagues disagree with the interrogation policies that the Executive Branch has chosen to use in defending our Nation fiom another terrorist attack in the six and one-half years following September 11,2001. I also appreciate the public interest in, and debate over, the wisdom and value of these policies, as well as the fidelity of those policies to our Nation’s laws; indeed, I believe that such debate reflects the strength of our Constitution. But I strongly disagree with your suggestion that such debate should be resolved through a criminal investigation into the actions of government officials who formulated and carried out those policies. I believe such a request is unfair to those who have been charged with making the difficult decisions in protecting our Nation in the War on Terror, and to those who will be so charged in the future, and therefore is seriously short-sighted.
Your letter requests the appointment of a special counsel to launch a criminal investigation into the actions of the President, members of his cabinet, and other national security lawyers and intelligence professionals in the approval and employment by the CIA of interrogation techniques against captured members of a1 Qaeda. However, you offer no evidence that these government officials acted pursuant to any motive other than a good-faith desire to protect the citizens of our Nation from a future terrorist attack. Nor have you provided any evidence or indication that these government officials believed they were authorizing any policy contrary to the laws of the United States. Quite the contrary: Before the CIA employed these interrogation techniques, government officials sought advice from the Department of Justice as to the lawfulness of the proposed course of conduct. The Department of Justice attorneys, in turn, provided that legal advice. I am aware of no evidence that in providing advice concerning the CIA program those attorneys acted in anything other than good faith based on their best judgment of what the law required.
Your request for a criminal investigation into the actions Executive Branch policymakers and national security lawyers undertook to defend the Nation reflects a broader trend whose institutional effects may outlast the present Administration and harm our national security well into the future. I spoke in more detail about this problematic trend in a speech at Boston College Law School on May 23, 2008, which in turn drew substantially from former Assistant Attorney General Jack Goldsmith’s recent book, The Terror Presidency. In his book, Professor Goldsmith describes what he calls “cycles of timidity and aggression” among political leaders and commentators in their attitudes towards the intelligence community. As I pointed out in my speech, the message sent to our national security policymakers and lawyers in the aftermath of the September 11 attacks was clear, it was bipartisan, and it was all but unanimous. As Professor Goldsmith explains, “The consistent refrain from the [9/11] Commission, Congress, and pundits of all stripes was that the government must be more forward-leaning against the terrorist threat: more imaginative, more aggressive, less risk-averse.”
We have gone six and one-half years without another terrorist attack within the United States, and now our intelligence professionals and national security lawyers are hearing a rather different message. Your letter, which urges me to subject those involved in developing or implementing our counterterrorism policies to criminal investigation, reflects that message. Taking such a step would not only be, in my judgment, unjust, but would also have potentially grave national security consequences. There could be no more certain way to usher in a new “cycle of timidity” in the intelligence community than to tell the government’s national security policymakers and lawyers that, if they support an aggressive counterterrorism policy based on their good-faith belief that such a policy is lawful, they may nevertheless one day be prosecuted for so doing.
The competing imperatives to protect the Nation and to safeguard our civil liberties are worthy of public debate and discussion, and congressional oversight and review of our intelligence activities are also important. But it is equally important that such scrutiny be conducted responsibly, with appreciation of its institutional implications. We cannot afford to invite another “cycle of timidity” among those who devote their lives to keeping us safe. The stakes are simply too high.