Based on what’s known so far, inquiry undercuts agency morale. Attorney General Eric Holder felt he had no choice but to appoint a prosecutor to see whether abuse of terror suspects by CIA interrogators warrants criminal prosecution. Perhaps Holder saw evidence in the extensive blacked-out portions of the 2004 report by the agency's inspector general released Monday, or in other documents, that cries out for further investigation.
But based on what's known so far, this new inquiry seems likely to produce more harm than benefit, particularly if it drags on and on as such things tend to do. Certainly, some of the behavior described in the 2004 report is repellent — staging a mock execution in the next room, repeatedly squeezing a detainee's carotid artery until he began to pass out — but there are any number of reasons to question whether prosecutions are the right remedy.
For starters, the previous administration declined to prosecute, and the new administration pledged that it wouldn't go after interrogators who had acted in the belief that what they did was authorized. Another option is to charge the Justice Department attorneys whose "torture" memos twisted the law beyond recognition, but how do you prosecute a legal opinion? What's left, potentially, is a small group of rogue agents who no doubt will argue that they were following a very aggressive policy. The value of prosecuting them should at least be weighed against the potential impact on the effectiveness of the CIA.
Further, the newly revealed actions, even if not specifically authorized, don't seem as shocking as earlier revelations of the repeated use of waterboarding, the torture technique that simulates drowning, which was allowed under the rules. That creates the unfair possibility that interrogators who engaged in relatively mild tactics that were "outside" the rules would face prosecution, while those who engaged in far harsher techniques deemed "inside" would get a pass.
The interrogators' actions also need to be assessed in the context of their time: the post-9/11 period when there was a broad national determination to avert further terror attacks. It's clear that the climate of fear led to excesses — repeated torture, the capricious detention of innocents along with true terrorists at Guantanamo — that were unworthy of a nation of laws and did grievous damage to America's image around the world. But that problem has already been redressed.
President Obama has moved decisively to reverse torture policies, and his instinct to resist more official probes is the right one.
Attempts to investigate those most accountable for making the abuses possible — chiefly former president George W. Bush and vice president Dick Cheney — would be enormously and unnecessarily divisive at a time when the nation faces daunting problems, including two wars, a recession and deadly serious fiscal imbalances.
That leaves the CIA employees and contractors who carried out the harsh interrogations. In naming veteran prosecutor John Durham to investigate the agency's interrogation of terror suspects, Holder emphasized that interrogators who operated within the rules would be protected.
If some knowingly violated those rules, they should be charged. But Durham should ensure that his inquiry is focused and fast — and sets a very high bar for prosecution.
Posted at 12:22 AM/ET, August 26, 2009 in USA TODAY editorial Permalink
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