It was just back in April that a still new president and commander-in-chief assured the Central Intelligence Agency of his support, especially those of its agents who had protected the country during the dark, confusing days after September 11th. (That date doesn't need a year to identify it, any more than December 7, 1941, once did.)
Remember what Barack Obama said then?
Even as he was releasing memos that he had to know would be treated as raw meat for the agency's most vociferous critics at home and its deadliest enemies abroad, the president told the agents they need not fear being prosecuted for "relying in good faith upon legal advice from the Justice Department." He even added, "This is a time for reflection, not retribution."
Well, forget it. The administration now has announced that it's calling on a special prosecutor to investigate those same CIA agents. The time for reflection turned out to be deceptively brief; retribution is at hand.
Remember when the Hon. Eric H. Holder Jr., attorney general of the United States, was answering some pointed questions back in April about possible prosecutions of CIA agents?
The attorney general's words of assurance were unqualified: "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department."
Well, forget it. Now the attorney general has handed off their cases to a prosecutor with broad and independent powers.
How can the president and his attorney general justify such a breach of faith, and of their own words?
Answer: They can't. Instead, they're going to pass the buck and let someone else do the prosecuting for them if and when he sees fit.
No matter what Messrs. Obama and Holder, attorneys-at-law, may have told the CIA and the country earlier, now they're just going to stand by while a prosecutor reopens cases that were rightly closed years ago.
It was the CIA's inspector general, after conducting his own investigation, who forwarded these cases to the Justice Department, where they were reviewed not by political appointees but by career prosecutors for the Eastern District of Virginia, who found no grounds for prosecuting any of these agents.
Yes, the Justice Department did recommend that charges be brought against a civilian contractor who operated outside the official interrogation program, and who had beaten a detainee in Afghanistan. He would later be convicted of assault. But the CIA agents, who were cleared, are being treated like perpetual suspects.
To quote the still new (and regularly overruled) director of the CIA, Leon Panetta, these cases against the CIA agents were investigated "carefully and thoroughly" by career prosecutors, "sometimes taking years to decide if prosecution was warranted or not." It wasn't.
But now a political appointee, the attorney general himself, has decided to overrule those career prosecutors. Talk about political interference with the course of justice, and with the Department of Justice.
Both the attorney general and his boss in the White House are now washing their hands of this decision with a piety that would do credit to Pilate. The little sign that Harry Truman used to keep on his desk in the Oval Office ("The Buck Stops Here") was clearly retired years ago. So a special prosecutor gets this case.
The result is that the CIA agents involved are to be subjected to a kind of double if not triple jeopardy. Result: More months if not years of anxiety for the agents, and probably for the CIA as a whole, whose shaky morale is scarcely going to be restored by endless investigations. Prosecuting effective counterterrorism agents is also a strange way to attract more of them, or to make the country safer.
Are we entering a more European stage of our history, in which successive administrations don't just change the previous one's policy, but criminalize it? What do you think the next administration will make of this one's conduct of the war in Afghanistan? Will it appoint special prosecutors to investigate it, the way the Obama administration is approaching the Bush administration's war on terror? Will the legal advice the current administration is getting be deemed criminal if it proves unpopular with the ideologues of the next administration?
And what exactly are these CIA agents accused of? Consider the case of Khalid Sheikh Mohammed, more familiarly known in cloak-and-dagger circles as KSM, the mastermind behind the awful events of September 11th. Far from denying his guilt, he brags about it. But before he was threatened, shoved around, isolated and waterboarded, he was remarkably reticent about what other surprises his friends and fellow killers might have in store for this country and for innocents around the world.
To quote the inspector general's report, which now has been released, and is being used as a basis for referring these cases to an independent prosecutor:
"Khalid Sheykh Mohammed, an accomplished resistor, provided only a few intelligence reports prior to the use of the waterboard, and analysis of that information revealed that much of it was outdated, inaccurate, or incomplete." But afterward, he became "the most prolific" of all the detainees in CIA custody. "He provided information that helped lead to the arrests of terrorists including Sayfullah Paracha and his son Uzair Paracha, businessmen whom (KSM) planned to use to smuggle explosives into the United States; Saleh Almari, a sleeper operative in New York; and Majid Khan, an operative who could enter the United States easily and was tasked to research attacks.…"
There's more, much more, in this report. None of the many attacks being planned were imminent, but, having been revealed, it's unlikely they ever will be, thank goodness. To quote the report's conclusion: "Agency senior managers believe that lives have been saved as a result of the capture and interrogation of terrorists who were planning attacks."
Are we supposed to be sorry about that? And proceed to punish those who uncovered these plans? On what theory that no good deed for your country should go unpunished?
Talk about prescient, the inspector general's report also includes this comment from one of the CIA agents involved in the interrogations: "Ten years from now, we're going to be sorry we're doing this (but) it has to be done." He may have been off by a year or two, but he was right on both accounts. Because this is the way America now treats those who protect us, at least under this administration.
Paul Greenberg Archives