Never Mind What, Again?

David Ignatius, who I believe to be a sincere defender of the U.S. intelligence community, instructs us,

CIA officers aren't idiots. They knew they were heading into deep water - legally and morally - when they signed up for the interrogation program. That's part of the agency's ethos - doing the hard jobs that other departments prudently avoid. They hoped their government would protect them from future reprisals, but the graybeards were always dubious about the politicians' promises of support.

Not that I'm questioning the core assertions - CIA officers aren't idiots, and they had good reason to disbelieve any promises of the party in power that no abuses would be investigated or prosecuted - but Ignatius fails to inform us exactly which politicians promised them that acts of torture would be immune from legal scrutiny. I'm not sure if Ignatius is telling us that it would have been stupid for a CIA officer to believe a circular, self-serving argument that "anything the executive authorizes is okay," or if he's telling us that it would be stupid for them to believe a politician's promise of immunity in any context. But it's interesting that he seems to simultaneously argue that the CIA never relied upon the Bush era promises, yet that those promises should nonetheless restrict successor administrations.

It's sad, I think, that Ignatius doesn't understand that it would be terrible public policy to allow politicians to immunize government workers of any sort from immunity with a mere promise, even a promise that was not believed, that "your actions are legal" or "you'll never be prosecuted even if a judge disagrees with me." Even if the politician also offered them a legal memo from one of his underlings. The CIA agents at issue swore to defend the Constitution, not to bend to the will of the President or Vice President. If their own opinion was "this is not legal", why would they take a politician's word for anything?

And why does Ignatius believe their deference, particularly in the face of the strong doubts he identifies, should justify immunity? I know that there's always a double-standard when armed conflicts are involved, but in the past we of the United States have unapologetically prosecuted people for war crimes with a deaf ear to the defense, "I was just following orders." Whatever compelling arguments may be made against prosecution, you won't find them in Ignatius's column.

As so often happens in our country, the cynics were proved right: Despite President Obama's fine talk about looking forward, not backward, Attorney General Eric Holder decided this week that the CIA interrogators will face yet another criminal review of conduct that they were assured by the Bush administration was legal. No matter that the same evidence was provided five years ago to career prosecutors, who decided against bringing cases.

Which "career prosecutors" declined to bring charges? What was the substance of their determination - its basis in law? If Ignatius can't answer the first question he has no business trying to buttress their credibility - maybe the decision was made by somebody like Monica Goodling. If he can't answer the second, he's flying blind. Maybe we're back in the same circle of reasoning advanced by Ignatius, with the depth of the review amounting to "If the President says it's legal, it's legal":

Looking back, it's easy to say the CIA officers should have refused the assignments they suspected would come back to haunt them. But questioning presidential orders isn't really their job, especially when those orders are backed by Justice Department legal opinions.

But let's accept that and pretend, like Ignatius, that CIA officers swear to defer to the President instead of upholding the Constitution. If prosecutions result from the current process it will be of people whose actions went beyond what even the Bush Administration authorized. So the only objection Ignatius has raised which could be relevant is that a "career prosecutors" who may not in fact be either plural in number or have any actual experience as prosecutors, but were employed in the most politicized Justice Department in living history, chose not to authorize charges that would have severely embarrassed the Bush Administration? Well, you have to admit, it's a compelling argument. [cough]

What will happen the next time the White House wants the CIA to do something that's potentially controversial? Well, you know the answer. The CIA officers will want to talk to their lawyers, and maybe then to lawyers from the party out of power. That's not the ideal mind-set for a modern intelligence service. But the republic will survive.

Overlooking his hyperbole for the moment, who, other than Ignatius, Rush Limbaugh, Glenn Beck, Dick Cheney, and possibly the CIA officers who felt too constrained by the Bush Administration's torture authorization and now may face prosecution, wouldn't add, "And may well be stronger for it."¹ Why is it less than ideal for the CIA to say, "Our lawyers disagree that torture is legal, so maybe they can meet with your lawyers and hash out something that everybody is comfortable with."

Perhaps the biggest lesson here could be drawn from Ignatius's declaration that the CIA wasn't in the interrogation business at the start of this process, had "zero internal expertise" and lacked both the skills or manpower to develop an interrogation program in-house, and had serious concerns about the legality of the program and of the possibility of future prosecutions. Sometimes when you're heading toward a traffic light that by all appearances is a very late yellow, maybe an early red, you should defer to your better judgment and put your foot on the brake.
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1. It's a rhetorical question and yes, I know I can add Michelle Malkin, Sarah Palin, John Boehner, Ann Coulter, and similarly strong thinkers to the list.