Interrogation: Reflection vs Retribution
By Shaun Waterman for ISN
US President Barack Obama external pagepromised there would be no prosecutions of CIA staff who "carried out their duties relying in good faith upon legal advice from" the Bush administration Justice Department.
Addressing agency employees at a special visit to their Langley headquarters complex Monday, Obama called the CIA "an indispensable tool, the tip of the spear, in America's intelligence mission and our national security.
"It is because of you that I can make good decisions," he told a 1000-strong standing room only crowd that, by one reporter's account, greeted Obama with "an ear-piercing roar," and gave him "a rock star's reception -- hooting approvingly and waving small posters, magazine covers or books festooned with (his) image."
The pool report from Sam Youngman of the Hill said what the CIA called a "town hall meeting" "felt and sounded a lot like a campaign rally."
Obama external pagepledged to be "as vigorous in protecting you as you are vigorous in protecting the American people," defending his decision to release Bush administration legal memos authorizing the CIA to use techniques the International Committee of the Red Cross would later external pagedescribe as torture.
The president said he had released the memos "primarily because [...] so much of the information was public" already, adding he had "fought to protect the integrity of classified information in the past, and I will do so in the future. And there is nothing more important than protecting the identities of CIA officers," he added, in what was read by some as a coded reference to the disclosure of covert operative Valerie Plame's identity by the Bush White House, which still rankles with many at the agency.
"I understand that it's hard when you are asked to protect the American people against people who have no scruples and would willingly and gladly kill innocents," Obama said. "I'm sure that sometimes it seems as if that means we're operating with one hand tied behind our back, or that those who would argue for a higher standard are naïve."
Reflection or retribution?
But he sought to cast real U.S. security as being based in adherence to constitutional values.
"I have put an end to the interrogation techniques described [...] for a simple reason: because I believe that our nation is stronger and more secure when we deploy the full measure of both our power and the power of our values -- including the rule of law."
And, as Chief of Staff Rahm Emanuel external pagemade clear during the weekend, those who authored the memos -- which critics say were a legal fig-leaf to authorize torture -- will not face investigation by the Obama administration either.
"He believes that they were -- should not be prosecuted either, and that's not the place that we go," said Emanuel of the president, urging people to "look at (Obama's) full statement," which external pagereads, in part:
"This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
At the other end of Pennsylvania Ave, on Capitol Hill, there seems to be some appetite for accountability, if not blame-laying.
"The content of these memos is as alarming as I feared it would be," external pagesaid Democratic Sen Patrick Leahy, the chairman of the Senate Judiciary Committee. "The inadequate legal justifications" on which they were based "disregards both our domestic laws and our treaty obligations, and underscores why we must take a full accounting of what has been done in the name of national security."
"We must have a full investigation of the circumstances under which these torture methods were created, approved, and implemented," external pageadded Leahy's counterpart in the House, Democrat from Michigan Rep John Conyers, Jr.
"If our leaders are found to have violated the strict laws against torture, either by ordering these techniques without proper legal authority or by knowingly crafting legal fictions to justify the torture, they should be criminally prosecuted," he said, adding he did not understand how the administration could rule out prosecution.
"It is simply obvious that, if there is no accountability when wrongdoing is exposed, future violations will not be deterred," Conyers concluded.
Partisan blowback
Because the memos come from the Justice Department, the Judiciary Committees have jurisdiction; but both chairmen, rather than pledge committee actions, are advocating the establishment of an independent commission -- perhaps recognizing the potential for partisan blowback from any investigation that is seen as politically motivated.
Some human rights advocates have called for the appointment of a special prosecutor -- but Attorney General Eric Holder, who would have to name such an official, shows little appetite for the move, stressing in a statement that "the government would provide legal representation to any employee, at no cost to the employee, in any state or federal judicial or administrative proceeding brought against the employee based on" their conduct in line with the memos "and would take measures to respond to any proceeding initiated against the employee in any international or foreign tribunal, including appointing counsel to act on the employee's behalf and asserting any available immunities and other defenses in the proceeding itself."
The Senate Intelligence Committee, under new leadership since California Democrat Sen. Diane Feinstein replaced West Virginia patrician Sen. John "Jay" Rockefeller, is already reviewing the CIA's detention and interrogation program, and could in theory still identify cases in which agency staff or policy exceeded the authorities granted by the Justice Department memos.
On Monday, Feinstein wrote to Obama, "to respectfully request that comments regarding holding individuals accountable for detention and interrogation related activities be held in reserve until the Senate Select Committee on Intelligence is able to complete its review" in six to eight months.
Ticking bomb
One issue several former officials think the committee should look at is the justification the agency used for asking for the authority to use new techniques in its interrogations.
As is clear from the memos themselves, the CIA used the "ticking bomb" theory, saying that detainees had intelligence about ongoing plots against the United States.
Robert Baer, a former CIA operative, is one of several former intelligence officials to external pagesuggest that might have been self serving.
One issue the Senate Intelligence Committee has publicly said it is examining, is the decision to destroy video tapes of some interrogations using water-boarding and other techniques authorized by the torture memos. But the authors of the memos themselves -- and in particular an official at the Justice Department's Office of Legal Counsel, John Yoo -- are beyond the reach of the committee.
Yoo might still face investigation by a Spanish investigating magistrate. The released memos look likely to strengthen the case lodged against him there by the non-profit Association for the Dignity of Prisoners. Although Madrid's Attorney General Candido Conde-Pumpido told reporters external pagelast week that the government "cannot support" the prosecution, and prosecutors Friday formally recommended throwing the complaint out, the decision whether to proceed with the case against six former Bush administration officials accused of giving legal cover for the use of torture ultimately lies with the maverick Balthazar Garzon, according to the New York Times.
Some observers believe that a succession of investigations in Europe -- into the "black sites" the CIA operated in Poland and Romania and the rendition flights the agency used over-flight and re-fuelling facilities for -- will almost inevitably lead to a case of some kind going forward to the point where US commitments under the UN Torture Convention come into play.
Manfred Nowak, the UN Special Rapporteur on Torture, was asked by the German magazine Der Standard whether Obama's decision was "supportable."
"Absolutely not," he replied, according to translated portions of the interviews posted by ThinkProgress. "The United States has, like all other Contracting Parties to the UN Convention Against Torture, committed itself to investigate instances of torture and to prosecute all cases in which credible evidence of torture is found."
Nowack added that, under those circumstances, Obama's pledge constituted "a violation of binding international treaty law."