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.

No Sense of History

If you read Michael Gerson's columns, you know that he has no sense of history. Not just about things like World War II and Nazism, but about what was happening one or two doors down the hall when he was sitting in a little office writing speeches for the President. One suspects that the only words he ever heard while working at the White House were, "Shut up, Gerson's coming."

Today he provides yet another "case in point":

In a little over 100 days, the Obama administration and the Democratic Congress have delivered a series of blows to the pride and morale of the Central Intelligence Agency.

This would involve releasing memos confirming the use of (a word Gerson still can't manage to choke out) torture, and that the Bush Administration had repeatedly lied about its use of torture. And Nancy Pelosi stating that the CIA misled her about its use of torture, something the CIA hasn't actually denied. That would be... all. But Gerson's doing his usual stenography, so what do facts matter to his analysis....

So let's flash back in time a few years, to the days of "Shut up, Gerson's coming" Gerson's service in the White House and what certainly couldn't have been "hypocritical congressional investigations":

The CIA has hit back angrily after reports that a United States Senate committee will criticise the agency and its embattled director, George Tenet, for "shoddy" pre-war intelligence on Iraq's suspected illegal weapons programmes.

The agency's senior officials summoned the media to a hastily-arranged briefing at CIA headquarters in Langley, Virginia late on Friday. With its credibility at stake, they insisted that an internal review had found no evidence of faulty work.

Thank goodness for the sane intervention of Peter Hoekstra (R-MI):

Hoekstra didn't spell it out in his note. But what he was saying was that he believed a CIA cabal has tried to undercut Bush regarding the war in Iraq - that CIA officials opposed to the war plotted against the president and sought to undercut his case for war by leaking stories indicating that the intelligence cited by Bush and his aides on Iraq's WMDs and purported connections to al Qaeda was not that strong.

G.W. always had the CIA's back:

US President George W. Bush refused to take the blame for using flawed data on Iraq's nuclear program in his State of the Union speech, saying the CIA cleared it before it was delivered.

And nobody in the White House would have dreamed of setting up an independent intelligence agency to second-guess (or undermine) what the CIA had to say:

It is no secret now that Douglas Feith, George W. Bush's undersecretary of Defense for policy, set up his own intelligence operation in the Pentagon, known as the Office of Special Plans. According to current and former Pentagon officials, Feith believed that the CIA and other intelligence agencies dangerously underestimated threats to U.S. interests.

The Bush White House, as you might expect, was also very careful to protect CIA operations and operatives. All of this, of course, left the CIA feeling respected and valued by the White House.

Gerson's arguments get no better from there:

Traveling recently in Iraq, Pelosi noted, "If we're going to have a diminished military presence, we'll have to have an increased intelligence presence." This has been the main Democratic argument against the whole idea of the war on terror - that guns and bombs are no substitute for timely information. "This war on terror is far less of a military operation and far more of an intelligence-gathering, law-enforcement operation," Sen. John Kerry once claimed.

In his curious ad hominem, Gerson somehow manages to miss the point that Pelosi is correct. If you're going to reduce the presence of U.S. forces in an area, and rely on fewer soldiers to control insurgency and potential terrorist activity, you need better intelligence. What about that is difficult to understand? And I recognize that it's standard operating procedure for stenographers like Gerson to sneer at the concept of the war on terror as being about pursing terrorists, as opposed to dropping the ball in Afghanistan in order to launch a massive war of choice against a country that was not involved in 9/11 (while slandering the CIA for somehow failing to find a connection), but in what sense have our victories in the "war on terror" been driven by that huge war in Iraq? Can Gerson actually make the case that Kerry was wrong, let alone that his approach wasn't superior to G.W. "Who's Bin Laden, again" Bush's?

But this object of praise - intelligence-gathering - is again the object of liberal assault. "To put the matter at its simplest," writes Gabriel Schoenfeld, "American elites have become increasingly discomfited over the last decades by the very existence of a clandestine intelligence service in a democratic society."

Oh, it must be true because Gabriel Schoenfeld says so. Er, just a moment... who the [bleep] is Gabriel Schoenfeld? You know, it's great that with in the right-wing echo chamber, Gerson can find other commentators that share his beliefs, and its great that he can quote them rather than resorting to, you know, boring things like facts, but it's hardly a way to build a valid argument. But then, he thinks the speck in the eye of the Democratic Party is larger than....

You know what else is lost in Gerson's "analysis"? The realization that in a Democracy it's appropriate, healthy, and sometimes very necessary for our elected officials to take on institutions like the CIA.