Will Obama really prosecute CIA interrogators?
If most former CIA chiefs oppose a probe of agents who questioned terror suspects, the president must listen.
Earlier this month, seven former CIA directors made a special plea to President Obama that deserves a thoughtful response.
They asked the nation's top law enforcement official to end a Justice Department inquiry into alleged detainee abuse by CIA interrogators.
Their plea came a month after Attorney General Eric Holder opened the probe, which has sent shivers through the intelligence community but pleases those who say the Central Intelligence Agency relied on torture during the Bush administration in dealing with terror suspects. Mr. Holder based his decision in part on his reading of a 2004 CIA internal report that found cruel tactics were sometimes practiced by the CIA or its contractors.
Mr. Obama's own CIA director, Leon Panetta, also opposes the investigation.
One reason for their opposition is understandable.
Twice during the Bush administration, career prosecutors – not political appointees – had weighed the evidence against some two dozen agents and decided against taking them to court. That same 2004 report had also found that interrogators had been given guidelines by the Justice Department on how to avoid torture that left "substantial room for misinterpretation."
Such nonspecific rules would have created a murky path for any prosecution against any agent. And the evidence was not considered strong enough to gain a conviction beyond a reasonable doubt. The fingered agents were told they were cleared.
But now this latest probe, initiated under a new president, creates an atmosphere of "continuous jeopardy," the letter states, for those already cleared.
In addition, current CIA agents might now be afraid that a future president would change the rules of justice and, as a result, they may be too cautious in the long fight against terrorists. And by prosecuting such cases in open court, the CIA's intelligence-gathering methods and any secrets given to the US by foreign governments might be revealed.
Mr. Obama must respond to these concerns. (The GOP has pulled out of a Senate Intelligence Committee probe of Bush-era CIA tactics, saying that agents – given the possibility of prosecution – would be afraid to testify before the panel.)
The CIA still considers its interrogation program to be "a crucial pillar" in the capture of known terrorists, although the president has decided to give the FBI oversight of all interrogations. While he has ordered stronger and specific rules to prevent any form of interrogation that might resemble torture, Obama could still end up with a CIA unwilling to engage in interrogations considered harsh, now or in the future.
Perhaps Obama and his attorney general believe the rest of the world needs to see that the US firmly stands against torture by prosecuting some CIA agents. During his campaign, Obama argued that Islamic radicals are emboldened – and Americans are made more vulnerable – when the US uses tactics widely seen as torture. In effect, more US lives would be lost if such methods are used than if they are not.
Obama weakens his own case, however, in his recent decision to favor indefinite detention of some terror suspects without a trial. That denial of a basic right can also be seen as a recruiting tool for Al Qaeda. And he may yet be forced to back off a pledge to close the Guantánamo detention facility by January because of opposition in Congress.
If any CIA interrogator is convicted, would the US be safer? Perhaps. But that won't end the difficult choices that the United States faces in deciding which tactics should be used to thwart an enemy that has decided to use any tactic anywhere.
Obama has done well simply to clear up any confusion about CIA interrogation methods. He should leave it at that, and move on.