Who Should Take the Heat for Torture?
Thursday, March 13, 2008 at 5:15 pm
In January, the Justice Dept. announced its first-ever investigation of an official involved in the CIA’s “enhanced interrogation” — i.e., torture — program. Previously, prosecutions brought against individuals involved in torture were either directed at soldiers and Marines — usually enlisted men — and, in one case, a CIA contract employee in Afghanistan. But with the investigation into Jose A. Rodriguez, the former head of clandestine operations for the Central Intelligence Agency who allegedly destroyed videotapes displaying brutal interrogations, an important threshold was crossed: the CIA’s interrogation program was no longer off-limits to the Justice Dept.
Rodriguez’s potential indictment also represents another fear at Langley: that the interrogators would face criminal charges for doing what the Bush administration ordered them to do. “We knew that five, 10 years down the road, our people were going to get screwed, like they always do,” a former senior CIA official told me in January. The administration “wanted information, and they don’t give a damn how they get it. They just don’t want dirt on their plate.”
Indeed, many involved in the intelligence community consider it a matter of basic injustice for low-level CIA interrogators to face prosecution while Bush administration officials — who ordered the torture program to move forward and devised its legal rationales — almost certainly will not.
“The sad and unfair truth,” e-mailed Mark S. Zaid, a criminal attorney who has represented CIA employees for years, “is that historically, especially in the intelligence community, it is far more common that the line officers and lower-level management take the heaviest hit for their actions while the political appointees/elected officials who directed or authorized the policy receive a free pass.”
Zaid’s client Mark Kiriakou, who led the interrogation of al-Qaeda detainee Abu Zubaydah in 2002 — Abu Zubaydah was waterboarded — is a possible candidate for prosecution, though the Justice Dept. has said it does not have an investigation currently open into him.
One former Justice Dept. official thinks the whole issue is too hypothetical.
“As a practical reality, it is virtually inconceivable that any Department of Justice, of any party’s administration, would ever prosecute an intelligence official or contractor who had relied upon formal [Office of Legal Counsel] advice,” blogged Marty S. Lederman, who left the Office of Legal Counsel in 2002. “The practical ramifications of such a prosecution for future intelligence activities and the functioning of OLC would simply be too substantial, and therefore no DOJ will ever seriously consider such a prosecution.”
As of right now, Lederman is right. Rodriguez’s case concerns the destruction of evidence — the videotapes — and not torture itself. However, that case is a slippery slope: if it’s a crime to destroy the tapes, then it’s a crime because the information on the tapes is evidence of possible criminal activity. (Whether Rodriguez was ordered to preserve the tapes is a matter of fierce dispute.) That criminal activity is the agency’s enhanced interrogation. CIA officials fear that the Rodriguez investigation is a potential Rubicon for the Justice Dept. Crossing it means that agency interrogators might be considered criminals — and all for activity that was thoroughly vetted by the administration.
They have prepared for that situation for years. During Bush’s second term, many CIA officials purchased insurance to pay for potential legal bills. The CIA’s inspector general, John L. Helgerson, warned in a secret 2004 report that the aspects of the interrogation program were legally dubious.
Last month, The New York Times reported that the CIA has expanded an internal investigation into detentions and interrogations. A separate review conducted jointly by the CIA and the Justice Dept. is studying the legal basis for waterboarding and other torture techniques.
And the agency has historical justification for feeling as if it’s about to be sold out. Congress’s Church and Pike investigations into the CIA during the mid-1970s disclosed massive illegality — presidents from John F. Kennedy to Richard M. Nixon ordered the agency to spy on U.S. citizens — but not a single elected or appointed official faced as much as rebuke. Instead, Sen. Frank F. Church famously characterized the agency as a “rogue elephant” — as if the CIA had done anything besides following executive prerogative.
In 2002, a coterie of Justice Dept. officials drafted legal memoranda to provide a rationale for the Bush administration’s desired CIA interrogation program. One reason for the memoranda was to respond to CIA pleas to provide bright-line guidance for what interrogation techniques were and were not legal.
An infamous Aug. 1, 2002 memorandum, principally authored by John C. Yoo of the Office of Legal Counsel with assistance from Dick Cheney’s then-lawyer and current chief of staff David S. Addington, argued that any technique was legal as long as it did not cause pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
A still-secret memorandum by Yoo and his then-boss, Jay S. Bybee, reportedly outlines, specifically, which techniques the CIA can legally employ. The CIA and the Justice Dept. have defied requests by Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, for the memo.
The following year, Yoo’s then-boss, Jack L. Goldsmith, secretly revoked the August 2003 memo, considering it legally unsound. Goldsmith recently compared the Office of Legal Counsel’s work to providing the equivalent of “advance pardons” for breaking the law. According to Goldsmith, Addington barked at him, “Since you’ve withdrawn so many legal opinions that the president and others have been relying on. … we need you to … let us know which [of the remaining] ones you still stand by.”
In December 2004, the Justice Dept. formally revoked the August memorandum — publicly. In private, however, the new attorney general, Alberto R. Gonzales, got new Office of Legal Counsel chief Steve G. Bradbury to effectively revoke the revocation. Waterboarding and other torture techniques were again legally permissible.
The CIA does not talk about its interrogation program. Officials have testified that three detainees in CIA custody were subjected to waterboarding, and say that no one has been waterboarded in years. “The agency’s terrorist detention and interrogation program has been implemented lawfully, with great care and close review—including within the Executive Branch and oversight from Congress,” agency spokesman George Little told me in January.
Yoo did not respond to respond to multiple requests for comment. Neither did Goldsmith.
“While I don’t approve of the torture activity, I certainly don’t think the people ordered to do it should be the fall guys,” said Plato Cacheris, another of John Kiriakou’s attorneys and a preeminent Washington lawyer. “If they are going to go after anyone, they ought to go after the people who ordered it.”
My sense is that if anyone should be prosecuted, it’s the higher-ups and not the person who carried out the practice.
Other legal experts believe the question depends somewhat on facts that remain classified.
“My sense is that if anyone should be prosecuted, it’s the higher-ups and not the person who carried out the practice, assuming what that person did was within the lines of the legal opinions set forth” spelling out what was and was not permissible, said David D. Cole, a constitutional law professor at Georgetown University. “However, we don’t know that. We haven’t seen the [second Yoo-Bybee] memo, and we don’t know what the CIA did or didn’t do.”
Another question concerns the legal doctrine of command responsibility — that is, what culpability is born by an individual for following orders, a doctrine borne out of the Nuremberg war crimes trials of the Nazis. During Nuremberg, the Nazi regime was presumed to be criminal, and so the question concerned the responsibility of individual officials for executing criminal orders. Here the situation is reversed: the low-level interrogator’s actions would be assumed to be criminal, but not necessarily the policy being executed, nor the policy-makers who designed it.
It isn’t clear what sort of command-responsibility issues of legal doctrine exist in the case of CIA torture. But one indication of how important torture continues to be to the Bush administration: on Friday, Bush vetoed a bill that would force the CIA to use only Geneva Conventions-compliant interrogation techniques.
At a Johns Hopkins University forum on Wednesday, Adm. Mike McConnell, the director of national intelligence, baldly asserted that waterboarding “works” as an intelligence-gathering method. “So if it’s not illegal and it would prevent an attack on a city that would save hundreds, thousands of lives, would we use it?” McConnell said. “I would certainly be persuaded in that direction, given that the attorney general verified it’s a legal technique.”
For doing what Bush wants, the specter haunts the CIA that its operatives will be prosecuted. Bush, by contrast, is in no danger of serving any jail time.
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