Panetta Breaks From Bush in Senate Hearing

CIA director nominee Leon Panetta during his Senate confirmation hearing on Thursday. (Zuma)

CIA Director-designate Leon Panetta emerged from his confirmation hearings Friday as a forceful proponent of ending the CIA’s Bush-era forays into torture, extraordinary rendition and indefinite detention. But he seemed open to holding detainees for extended periods without charge — a position that could influence a forthcoming Obama administration review of future detention policy.

“I am absolutely convinced we can protect this country, provide for the security of our people and abide by the law,” Panetta told the Senate Select Committee on Intelligence during a confirmation process split between Thursday afternoon and Friday morning.

Illustration by: Matt Mahurin

Panetta, a White House chief of staff to President Bill Clinton, was a surprise choice for CIA director, having not dealt directly with the production of intelligence since a stint in the Army 40 years ago. President Barack Obama picked Panetta for the job after his apparent first choice, former CIA official and campaign adviser John Brennan, took himself out of contention following progressive criticism of his statements about counterterrorism practices. During George W. Bush’s presidency, Panetta repeatedly criticized the former president’s embrace of torture.

He held to that position under repeated questioning by the Senate panel Thursday and Friday, even when senators effectively invited Panetta to soften his opposition. Sen. Richard Burr (R-N.C.) asked Panetta to consider a so-called “ticking bomb” case, a hypothetical scenario made popular by the Fox drama “24,” in which an obstinate detainee is presumed to have information that could foil an imminent terrorist attack. Panetta rejected torture even under that circumstance. “If you talk to [FBI Director] Bob Mueller, talk to [Sen.] John McCain, talk to Gen. [David] Petraeus, they believe that information can be obtained without resulting to extraordinary measures,” Panetta said, pledging to use “everything possible within the law to get that information.”

Similarly, Panetta faced repeated questions about his stance on rendition. Rendition itself is the process whereby the CIA picks up a suspect and sends him to either a foreign country’s justice system or, if picked up overseas, back to the U.S. criminal justice system. Under the Bush administration — and, in some circumstances, the Clinton administration — the CIA also handed over detainees to countries that practice torture after receiving promises that torture wouldn’t occur, although numerous official panels — such as the Arar Commission in Canada and the Council of Europe’s inquiry into the CIA’s so-called “Black Site” secret prisons — have determined that such torture occurred.

Responding to Sen. Kit Bond (R-Mo.), the vice chairman of the panel who proved to be Panetta’s most persistent questioner, Panetta ruled out such so-called “extraordinary rendition.” He did, however, say that he would “seek and receive assurances” that no torture would occur by any nation that receives a rendered suspect — although the Bush administration regularly said the same thing. Panetta added that recent executive orders issued by President Obama require him to sit on a cabinet-level panel that will meet early in the administration to determine future rendition and detention policies, and he would explore additional safeguards to prevent torture in rendition situations, soliciting the assistance of the State Department to ensure that foreign countries keep their promises to bar torture. While an executive order issued two weeks ago by President Obama forbids the CIA from the long-term detention of detainees, Panetta did not clarify how long the agency would be allowed to hold a detainee before transfering him or her to a different government agency — a matter the panel will sort out.

That panel may emerge as a source of conflict between Panetta and civil libertarians. He told the Senate committee that some terrorism detainees were too “dangerous” to prosecute and may have to be “held in detainment for a long time.” Panetta appeared to concede the tension between that position and the Obama administration’s pledge to close the detention facility at Guantanamo Bay, where most of the approximately 800 detainees held there over the past seven years never faced charges. “We need to establish at least some kind of reporting mechanism to the federal courts” in such a case, to avoid regressing into indefinite detention, Panetta said, but did not outline any rules of process or evidence that would allow such detainees access to due-process rights that the Supreme Court repeatedly upheld during the Bush years.

Panetta’s remarks confused some civil libertarians. “We’re obviously going to have to pursue additional clarification,” said Caroline Fredrickson, the Washington director of the ACLU. “This is very contrary to what we’ve heard from President Obama throught the campaign.” She added, “We simply cannot, as Americans who value the constitution, abide a separate system of justice for those we deem dangerous.”

Additionally, Panetta strongly rejected prosecuting CIA officials for torture, arguing that the agency’s interrogators should not be penalized for the Bush administration’s poor legal guidance that torture was legal. “Those individuals operated pursuant to a legal opinion… [and they] ought not to be prosecuted or investigated, [since] they acted pursuant to the law as it was presented by the attorney general.”

John Kiriakou, a former CIA officer who supervised the early interrogation of Abu Zubaydah in 2002 — who was waterboarded after Kiriakou’s supervision ended — welcomed Panetta’s forcefulness on behalf of CIA interrogators. “Members of Congress understand that the decisionmakers of the Bush White House were responsible for this policy,” Kiriakou said. “There won’t be a witchhunt, and there shouldn’t be.”

Despite the occasional heated question, it is unlikely that Panetta’s nomination will be defeated. Bond said that he looked forward to working with Panetta “when you’re confirmed, as I’m sure you will be.”