It wasn’t their intention, but seven former CIA directors who asked President Obama to abort a Justice Department inquiry into “enhanced interrogation techniques” have moved Obama to renew his promise that he will do no such thing.
Last month, Atty. Gen. Eric H. Holder Jr. asked a career federal prosecutor, John H. Durham, to conduct a “preliminary review” into whether laws were violated in overseas interrogations of suspected terrorists. Holder made it clear that interrogators who complied with Justice Department guidelines, inadequate as they were, had nothing to fear.
That didn’t prevent the former directors from sending Obama a letter asking him to “exercise your authority to reverse” Holder’s decision. They argued that the inquiry was unfair to CIA employees who thought the Bush administration’s decision not to prosecute was final and now lived in an “atmosphere of continual jeopardy"; that the inquiry will threaten cooperation from foreign intelligence services; and that “there is no reason to expect that the reopened criminal investigation will remain narrowly focused.” None of these arguments is persuasive.
CIA employees who might have violated the law were never guaranteed that they would escape prosecution. Many inducements exist for foreign intelligence agencies to continue to cooperate with the United States. Finally, it’s conceivable that, in investigating violations of interrogation rules, Durham might come across evidence of other crimes, such as the destruction of evidence. But that scenario poses no threat to interrogators who abided by the rules.
It’s not surprising that former CIA directors would speak up for the agency’s employees, but they should have paid more attention to the ethical niceties of the relationship between the White House and the Justice Department. In requesting that Obama overrule the attorney general for the sake of CIA morale, they also were asking the president to abandon his assurances that Holder, an Obama campaign advisor, would put the law above loyalty to the White House.
We remain skeptical that the indefensible interrogation methods countenanced by the Bush administration will give rise to criminal prosecutions, let alone convictions. For one thing, Congress has effectively immunized interrogators who acted with “good-faith reliance on advice of counsel.” For another, juries would be sympathetic to any defendant who could argue that he was trying to avert another 9/11. Even so, Holder’s decision shouldn’t be second-guessed by the president, especially because of outside pressure.