Week 2 Discussion

CASE 4.1 DOING THE RIGHT THING

Whoever fights monsters should see to it that in the process he does not become

a monster.

Frederick Nietzsche

Leon Panetta was a surprise choice to lead the Central Intelligence Agency

(CIA), since his reputation rested primarily on his mastery of domestic

policy—a mastery acquired as chairman of the House Budget Committee, as

President Clinton's budget director, and later as his chief of staff. Although

some colleagues say that Panetta can be “principled to the point of rigidity,” it

was more his reputation for rectitude and integrity than as his grasp of the

intricacies of national security issues that got him the CIA job.

In May 2009, Panetta found himself preoccupied not with foreign enemies

but with domestic critics, both conservative and liberal. From the right, former

Vice President Dick Cheney accused the Barack Obama administration of

“making the American people less safe” by banning the enhanced CIA

interrogation of terrorism suspects that had been sanctioned by the George W.

Bush administration. From the left, human rights activists and some

Democratic members of Congress called for the establishment of some sort of

inquiry—a special prosecutor, a congressional investigation, a truth

commission—to determine whether the Bush administration lawyers who had

argued that waterboarding and other harsh interrogation techniques could be

employed in the aftermath of 9/11 should be prosecuted. These liberal groups

were especially appalled that Panetta had advised Obama against such an

inquiry.

As the director of the CIA, Panetta knew this was a sensitive issue for his

agency. Critics believe that the agency had lost its moral bearings after 9/11.

In 2007, when a confidential Red Cross report became public, no doubt

remained that the agency had subjected terror suspects to prolonged physical

and psychological cruelty. Officers shackled prisoners for weeks in contorted

positions; chained them to the ceiling, wearing only diapers; exploited their

phobias; and propelled them headfirst into walls. At least three prisoners died.

There was more bad news for the agency when President Obama released

disturbing classified government documents describing how one prisoner was

waterboarded 183 times in a month. For more than a century, the United States

had prosecuted waterboarding as a serious crime, and a 10-year prison sentence

was issued as recently as 1983. Indeed, the memos authorizing interrogators to

torment prisoners clashed so glaringly with international and U.S. law that

some of them were later withdrawn by lawyers in Bush's own Justice

Department. Torture itself is a felony, sometimes even treated as a capital

crime. The Convention Against Torture, which America ratified in 1994,

requires a government to prosecute all acts of torture; failure to do so is

considered a breach of international law.

Although Panetta might oppose an inquiry, that did not mean he took torture

lightly. One of his first acts as director was to ask the CIA's inspector general

to ensure that there was no one on the payroll who should be prosecuted for

torture or related crimes. The inspector general assured him that no officer still

at the agency had engaged in any action that went beyond the legal boundaries

as they were understood during the Bush years. Panetta's position was

therefore consistent with that of President Obama, who had promised

immunity from prosecution to any CIA officer who relied on the advice of legal

counsel during the Bush years. For the longer term, Panetta was trying to set

up a state-of-the-art interrogation unit, staffed by some of the best CIA, FBI,

and military officers in the country and drawing on the advice of social

scientists, linguists, and other scholars.

Panetta wondered if he had done enough. Should he resist or welcome an

investigation of the CIA by the Attorney General that might lead to

prosecution? Or should he resist or welcome the creation of an independent

“truth commission” that could grant immunity to witnesses? As he pondered

the pros and cons of some sort of inquiry, it became increasingly apparent how

unappetizing his choices were.

Here are some of the arguments against any investigation:

• If Panetta did not argue against investigation, he would not be seen within

the agency as someone people want to follow.

• Prosecution would be unfair to CIA officers who thought they were abiding

by the law. People shouldn't be punished for doing what they took to be

their duty.

• An investigation might look vindictive, as if the Obama administration was

trying to go after Cheney and Bush. Such a perception could have a serious

political downside, namely, the risk of losing support from independents.

• Prosecution of officials would have a chilling effect on future U.S.

government officials. Few would be brave or foolhardy enough to put

forward daring proposals that one day could be judged illegal. Putting things

down in writing is a useful intellectual exercise and central to good decision

making. With the threat of prosecution, serious memos on controversial

matters would increasingly become the exception rather than the rule.

Bottom line: U.S. national security would be weakened.

• Investigation and prosecution would take time and focus away from what

the CIA, the country, and its elected and appointed representatives thought

important. Investigations and trials would constitute an enormous

distraction at a time when the United States faced a daunting array of

international problems.

• Investigation would undoubtedly result in the release of more memos and

photos highly unflattering to America's image abroad. Such releases could

spark an anti-American backlash among allies and provide a superb

recruiting tool for terrorist organizations.

• It is impossible to specify clearly a firm chain of causation. Certainly, a

series of actions at the highest levels of government set the conditions for

and allowed abuse and torture, but there is no proof that higher

policymakers intended severe abuses to occur. And what about top officials

who knew about the interrogation program but had no operational control

over it? As one former CIA official said, “You can't throw out the entire

agency.”

Advocates for investigation make the following points:

• Failure to investigate leaves the impression that the Obama administration

is trying to cover up something.

• The U.S. citizenry needs a full accounting, especially as it relates to the

health professionals. Released Justice Department memos contain numerous

references to CIA medical personnel participating in coercive interrogation

sessions. Were they the designers, the legitimizers, and the implementers—

or something else? Their participation is possibly one of the biggest medical

ethics scandals in U.S. history.

• The argument that CIA officials thought they were doing their duty because

of legal cover provided by the Department of Justice will not stand. Many

times courageous individuals objected and walked away from policies that

led to abuse and torture. As one FBI assistant director told one special agent

who had objected to the enhanced techniques, “We don't do that.” That

agent was then pulled out of the interrogation by the FBI director Robert

Mueller. At the Department of Defense, the Army Field Manual for Human

Intelligence Collector Operations explicitly prohibits torture or cruel,

inhumane, and degrading treatment in specific terms (no waterboarding, for

example).

• Some legal scholars think it would be hard not to do something. No criminal

charges have ever been brought against any CIA officer involved in the

torture program despite the fact that (as noted earlier) three prisoners

interrogated by agency personnel died as the result of this treatment. Yet the

only Americans who had been prosecuted and sentenced to imprisonment

were 10 low-ranking servicepersons—those who took and appeared in the

Abu Ghraib photographs.

• Former Vice President Cheney has said the United States must torture,

because it's effective. That is, at best, an illogical argument: A crime is not

a crime just because it works. After all, terrorism can be quite effective. The

argument is not only illogical but also fallacious. According to interrogation

experts in the FBI and the U.S. Army, people will say anything to stop their

torture.

• The fact that the independent commission would be politically distracting

isn't a good argument for resisting it. Jeffrey Rosen writes: “The Bush

torture policies are the most serious violation of American values since

World War II internment of Japanese-Americans. A closed Senate

intelligence committee investigation would be inconsistent with the

transparency Obama demanded when he release the memos in the first

place. At this point, only a full truth commission-style investigation can

allow the Bush lawyers to make clear that they didn't conspire to break the

law, while focusing public opprobrium on the real architects and abettors of

torture policies: namely, the policymakers …. An independent commission

would indeed be politically embarrassing… but at least it would provide the

accountability that the nation deserves.”