Panetta’s Problem

Following up on Spencer’s post about CIA Director Leon Panetta’s letter to his employees: Panetta’s statement that CIA officers “should not be investigated, let alone punished,” because this “is what fairness and wisdom require,” is not surprising. But it may not be all that wise, either.

Panetta, of course, has to win the support of his agency’s staff, many of whom weren’t so happy that President Obama picked a man with no intelligence agency background. Saying they shouldn’t be punished for following orders is one way to start doing that. And given that most people are more interested in going after the architects of the Bush administration’s torture policies than in prosecuting those who carried it out, Panetta might have thought his statement wouldn’t be all that controversial.

But I’m not sure it’s a good idea to start handing out blanket immunity to the people who carried out “extreme” interrogations that included torture and that they might well have known were illegal. Setting aside the fact that we didn’t buy that “just following orders” defense at Nuremberg, as a practical matter, excusing all those people from the start could doom the prosecution of higher-ups. (But maybe that’s the point.)

From a prosecutor’s perspective, the people carrying out the orders are precisely the ones who can provide the key evidence against the officials that gave them. But if you declare from the beginning that they’re all free to go, you’ve just thrown out any incentive you can offer them to cooperate. How smart is that?

What’s more, as John Sifton wrote in The Daily Beast, Panetta’s message also looks pretty self-serving, given that lots of the CIA officials who could be implicated in the torture policy, such as Stephen Kappes, are still at high levels in the agency, and are now Panetta’s advisers.

The other odd thing about Panetta’s message is what it says — or doesn’t say, rather — about current CIA policy and operations.

Panetta said he’s closing down the controversial CIA “black sites” where people were tortured during the Bush administration. But from his letter, it’s not clear if they’re closed or not, or if he just plans to close them in the future, and what exactly is taking so long?

Here’s his statement:

CIA no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites. I have directed our Agency personnel to take charge of the decommissioning process and have further directed that the contracts for site security be promptly terminated. It is estimated that our taking over site security will result in savings of up to $4 million.

Is he closing the sites down or taking over site security? Is the CIA still operating secret black sites or not? And why does it take so long to “decommission” a bunch of secret prisons anyway?

Panetta’s going to have to be more clear about his intentions if he’s going to have any credibility — with his own staff, as well as with the public.

When it comes to prosecutions, though, as Sifton pointed out, it’s not really Panetta’s call anyway. Those decisions will be left up to President Obama and Attorney General Eric Holder.  So far, both have been doing everything possible to avoid the politically contentious issue by hemming and hawing about not wanting to look backward, while still believing in the rule of law.

Given the recent publication of the ICRC report by Mark Danner, which revealed wrenching accounts of torture of prisoners by U.S. authorities; the Senate Armed Services Committee Report that revealed the orders came from the top; the ongoing Senate Intelligence Committee Investigation; and the Office of Professional Responsibility Report that’s still floating around the Department of Justice and reportedly details how the legal memos justifying the Bush torture policies were essentially dictated from the White House, Obama and Holder may eventually have to take a stand.

As Pennsylvania Republican Sen. Arlen Specter said at a recent Senate Judiciary Committee hearing, if there’s reason to believe that government officials “have given approval for things that they know not to be lawful and sound, go after them.”