Pardon CIA interrogators?

Today’s topic: Should President Obama pardon any CIA agents who may be convicted after the Department of Justice’s investigation in the spirit of his “looking forward” statement?

A stench of politics
Point: Robert Alt

Today’s question assumes, at least implicitly, that issuing pardons after the fact will address the problems with the current re-investigation policy. While pardons may be appropriate in some cases (assuming actual liability), this post-hoc fix is the wrong approach -- for two reasons.

First, criminal punishment may be appropriate if and when agents or contractors acted in a flagrantly unlawful fashion, deviating well beyond the legal guidelines. But determining where criminal punishment is appropriate requires us not simply to make false policy arguments about efficacy or claims about unenforceable and undefined theories of what could sorta-kinda-”practically” be international law; it requires a serious analysis of what constitutes a violation of U.S. law.

In the case of torture, that means that to be guilty of the offense, an individual must have a high level of mental culpability. He must have specifically intended to inflict severe physical or prolonged mental pain or suffering.

As far as applying the actual law, investigations have already been made into the allegations of abuse. At the Department of Defense, as of 2006 (and there have been more since), there were 800 investigations into allegations of mistreatment, 600 of which were criminal investigations. The department took action against 250 service members, including 103 courts-martial. None of the bad acts in question were a result of official policy but were in fact violations of policy.

In the case of the CIA, the inspector general’s office performed multiple reviews, and referrals were made to the Department of Justice in appropriate cases. One individual was convicted of murder. In several cases, the Department of Justice decided not to prosecute because of disputed allegations or ambiguous facts, but the CIA imposed administrative sanctions nonetheless.

The current re-investigation appears to be predicated not on any new claims but on a rehashing of old ones -- which alone raises the stench of politics. For all the discussion about waterboarding, that issue is not even on the table as long as agents performed that technique in accordance with guidelines. U.S. Atty. Gen. Eric J. Holder Jr. stated that individuals would not be punished if they were following Department of Justice legal guidelines, and the department had issued memos approving the use of waterboarding. For many of the headline-grabbing claims of abuse, the five-year statute of limitations has likely run. Those already investigated have faced review, possible sanctions and now face the prospect of re-review.

If real crimes have been committed, there is reason to hold individuals accountable, and having a blanket policy for post-hoc pardons could undermine legitimate accountability. But in this case, we have already held parties accountable. What appears to be happening now is a politically driven piling on.

The second problem with pardons is that much of the damage from the re-investigation comes not at the conviction stage (which is what a pardon issued after the fact addresses) but in the investigation and prosecution stages. The current, more public re-investigation creates serious national security concerns, which I have addressed elsewhere. The reopening of cases where the DOJ had previously made a decision not to prosecute deprives investigated individuals of finality. And the entire process further weakens the morale of not only the CIA but of the intelligence community as a whole.

Pardons may be appropriate on a case-by-case basis, but they’re not the right blanket solution. We have had reviews and accountability. Now we have re-investigations and political posturing. That is no way to look forward. It’s looking back, to the detriment of our future.

Robert Alt is a senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation.

Holder is on the right track
Counterpoint: David Kaye

Robert, your mischaracterization of key questions really blurs what’s at stake -- and what’s at issue -- in the current debate. So let me address your claims and, in the process, sum up where I stand.

First, you claimed Thursday that “what constitutes torture is subject to differing interpretations.” Are you saying that waterboarding a detainee 83 or 183 times, as the CIA did to Abu Zubaydah and Khalid Shaikh Mohammed, respectively, is lawful? Or that the legal measure of torture, as Justice Department lawyers manufactured it, must involve pain equivalent to the pain accompanying “organ failure, impairment of bodily function, or even death”? Nobody who has seriously studied the law on this holds that view; the Justice Department’s view on this during the Bush years was way outside the legal mainstream. If your view is reflective of a widely held position, it’s yet another reason to ensure through the legal process that we don’t go down the torture road again.

You say that we have already held parties accountable. Name names, please. There has been no serious attempt to hold anyone accountable for the torture of detainees held by the CIA.

Second, you talk about torture’s success “in preventing attacks.” We can agree that some detainees held by the CIA provided useful intelligence, particularly on the nature and structure of Al Qaeda. But did inhumane treatment lead to that information, let alone to preventing attacks? Claims that these techniques worked are just claims; they are not evidence, and no such evidence has been made public, if it even exists. The CIA inspector general put it mildly when he said that measuring effectiveness “is a more subjective process and not without some concern.”

As a side note, it’s incorrect to suggest that Khalid Shaikh Mohammed gave actionable intelligence as a result of harsh interrogations. In any event, even the 9/11 Commission (see Chapter 12) urged the Bush administration to recommit to humane treatment of detainees.

Third, your counterpoint Thursday made it appear as if I believe accountability would only be for Bush administration lawyers, but that’s certainly not my position. I agree that prosecuting lawyers would be difficult and in many cases unwarranted.

What really concerns me is that senior policymakers -- possibly with the knowing involvement of some lawyers -- crafted a policy involving torture and cruel, inhuman and degrading treatment of detainees. Did members of the docile, Republican-led Congress fail to speak out against it? Sure, though it’s tendentious, to say the least, to suggest the few briefed-up, sworn-to-secrecy Democrats knew the full scope of the program. Either way, briefing doesn’t excuse illegal behavior (unless you can point me to some freebie in federal law to that effect). And though you and others in the Beltway don’t like the idea of a truth commission, that would be one way to get the full story about who knew what and when while avoiding the pitfalls, as you see them, of criminal proceedings.

Finally, it’s too early to talk about pardons. Prosecutions should be reserved for those most responsible for serious violations of U.S. law, whether agents who went well beyond the scope of authorizations or policymakers who authorized the program (and procured the blatantly immunizing legal memorandums). Pardons would send the wrong message about what we expect of our interrogators -- and how we want the United States to be perceived in the world.

In short, I think Holder is on the right track.

David Kaye, a former State Department lawyer, is executive director of the International Human Rights Program at the UCLA School of Law.