Whenever he’s asked about the scandals of America’s war on terror -- the torture, the wrongful detentions, the legal corners cut -- President Obama has responded with some version of this statement: “We have to focus on getting things right in the future as opposed to looking at what we got wrong in the past.”
But that approach can’t work. The unanswered questions are too many, the lawsuits too numerous, the fundamental questions of accountability too nagging. We need a public reckoning -- and, much as they might like to avoid the distraction, Obama and his people must know it.
The latest controversy was the disclosure last week that the CIA had launched a program to track down and kill Al Qaeda leaders without informing Congress. The CIA withheld the information, according to Director Leon Panetta, on orders from then-Vice President Dick Cheney.
Democrats on the House Intelligence Committee were outraged: The controversy served to bolster Speaker Nancy Pelosi’s contention that the CIA had chronically lied to Congress.
The dust-up over what Congress wasn’t told came just as Atty. Gen. Eric H. Holder Jr. announced that he will take a new look at old cases in which CIA personnel were accused of abusing detainees, to see if any of them merit prosecution.
Obama has said that CIA officers who used “enhanced interrogation techniques” will not be punished if they followed regulations in force at the time. But he has also said that those who employed torture beyond the rules should answer to the law.
And such cases do exist. The CIA’s inspector general reportedly sent as many as a dozen “crimes reports” on detainee abuse to the Bush administration Justice Department. Several of the cases concerned detainees who died in custody.
Bush Justice Department lawyers examined every case, officials said, but decided to prosecute only one, a contract interrogator from North Carolina named David Passaro who beat an Afghan detainee to death with a flashlight in 2003. Passaro was convicted of assault and sentenced to eight years in prison.
When Holder reviewed the inspector general’s 2004 report on the detainee program, he was taken aback by the cases that weren’t prosecuted. And he wasn’t the first. When the tough report was delivered five years ago, it caused then-CIA Director George Tenet to suspend the program until new rules could be devised. Sen. Dianne Feinstein (D-Calif.), who also read the report, said it was “chilling.”
Holder told Newsweek that he is leaning toward launching a criminal investigation into the old cases, and his words sent a shock wave through the CIA’s clandestine service, which had hoped it was out of the woods. (A former official who spoke to me asked for his identity to be concealed because he expects to be questioned if the cases are reopened.)
Panetta, defending his CIA troops, authorized an unusual on-the-record statement telling the attorney general to back off. “This has all been reviewed and dealt with before,” CIA spokesman Paul Gimigliano said in a statement. “The Department of Justice knows -- and has known for years -- the details of past interrogation practices. ... Justice decided when to prosecute and when not to prosecute. In some cases, when the department chose not to prosecute, CIA took administrative steps of its own.”
At the end of last week, Holder had made no decision. White House officials said publicly that they were leaving the issue to the attorney general -- but in private, some of them winced at the prospect of prosecuting CIA officers and the political firestorms that could ensue.
Obama may prefer to soar above painful questions about what his predecessor’s CIA did, but he is unlikely to have that luxury, even if Holder backs off. A series of looming disclosures are likely to keep the debate over accountability alive.
The inspector general’s 2004 report is due to be released (with secrets blacked out) by Aug. 31 in response to a lawsuit by the American Civil Liberties Union. The Justice Department’s own ethics office is about to release a report judging the department lawyers who drew up the so-called torture memos that offered legal justification for detainee abuse. A federal prosecutor is investigating the CIA’s decision in 2005 to destroy 92 videotapes of detainee interrogations, including the repeated waterboarding of Al Qaeda figure Abu Zubaydah. And Feinstein’s Senate Intelligence Committee staff is grinding away at a comprehensive report on interrogations that may not be complete before the end of the year.
“All of these strands are converging to create what could be an ugly summer,” noted Jeffrey H. Smith, a former CIA general counsel who has informally advised Obama aides on intelligence issues. “The CIA feels once again that they are the ham in the sandwich.”
There are two ways to resolve these nagging problems. One is the long and bumpy process of responding passively, letting Congress and the courts do what they will. That’s the path Obama has taken until now. Far better, though, for the president to grasp the nettle, deal with problems quickly and put safeguards in place to prevent their recurrence. Only then can he focus fully on “getting things right in the future.”