Our nation’s leaders made the difficult decision to use coercive interrogation methods to learn as quickly as possible what hardened al-Qaeda operatives knew in the immediate months after 9/11. Knowledgeable officials expected that al-Qaeda would try again — soon — and in a more devastating fashion. Several plots were foiled and last week we finally killed al-Qaeda’s leader. This was not the result of luck — it is due to the hard work of members of the military and our intelligence agencies.
Their reward has been an open-ended investigation and the disturbing reopening of cases closed by career prosecutors. Others have written about the financial ruin in store for agents and analysts whose focus will shift from the enemy to their legal bills. What has been less well understood is what the investigation will do to the CIA as an institution at a time when it serves as the nation’s eyes and ears and, sometimes, the sword and shield, during war against a shadowy, covert enemy. If you are being prosecuted for pushing the envelope at the orders of your political leadership, you will not just think twice next time — you might instead refuse or leave the agency.
The Carter presidency serves as a warning. Attacking “Watergate, Vietnam, and the CIA,” Carter came to office determined to clean house. He campaigned by attacking the CIA: “Our government should justify the character and moral principles of the American people, and our foreign policy should not short-circuit that for temporary advantage,” he said. He promised to never “do anything as president that would be a contravention of the moral and ethical standards that I would exemplify in my own life as an individual.”
He and his CIA director, Adm. Stansfield Turner, saw little need for information gathered by spies and informants. Turner promptly took a buzz saw to the division in charge of covert operations, eliminating 820 positions out of 4,730.
The message was clear, and as a result CIA agents became risk-averse. After all, if you might be fired or prosecuted for doing something, the safest thing to do is nothing. America’s ability to gather human intelligence and conduct covert operations swiftly fell apart. The CIA failed to predict the fall of the shah. Iranian students — one of them now the president of Iran — took U.S. Embassy officials hostage. A covert operation to rescue them failed miserably, killing eight Americans.
The effects of this decimation of our intelligence capabilities continue. The intelligence agencies failed to stop the 9/11 attacks and do not appear to have penetrated al-Qaeda’s leadership. As the Silberman-Robb Commission reported in 2005, the intelligence community’s estimates on Iraqi weapons of mass destruction were almost totally mistaken. The Bush administration began the investments to turn around the long-run capabilities of the CIA, but Obama’s investigations threaten to return the mindset of our agents to the 1970s, even as our nation needs them most. Not only do the prosecutions threaten to undermine our ability to gather the intelligence to carry out operations like bin Laden’s killing, they may cause us to miss intelligence threats yet unknown.
— John Yoo is a law professor at the University of California, Berkeley and author of Crisis and Command: A History of Executive Power from George Washington to George W. Bush.