Here’s what the Center for Constitutional Rights has to say about the “just following orders defense”, at least as regards waterboarding, which Attorney General Eric Holder has previously called torture:

It is one of the deepest disappointments of this administration that it appears unwilling to uphold the law where crimes have been committed by former Bush officials. Whether or not CIA operatives who conducted waterboarding are guaranteed immunity, it is the high level officials who conceived, justified and ordered the torture program who bear the most responsibility for breaking domestic and international law and must be prosecuted. Further, by redacting  portions of the infamous torture memos before agreeing to release them today, as the news is reporting they will, the Obama administration is complicit in covering up the torture team’s crimes. The president issued a statement today full of contradictions, the most troubling being ‘This is a time for reflection, not retribution,’ followed shortly by, ‘The United States is a nation of laws.’ Government officials broke very serious laws: for there to be no consequences not only calls our system of justice into question, it leaves the gate open for this to happen again.

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.”

Leon Panetta accepted then-President-elect Barack Obama's nomination to be CIA director on January 9. (WENN)

It’s been a rough month for Leon Panetta. First, in early January, President Obama’s choice to become the next director of the CIA met swift opposition from Sen. Dianne Feinstein (D-Calif.), the chairwoman of the Senate Select Committee on Intelligence, owing to Panetta’s lack of experience with the intelligence community. That ended in part because Panetta vowed to keep Steve Kappes, the well-regarded deputy director of the CIA, in his position — which in turn sparked a round of speculation as to whether Kappes, and not Panetta, would be the real power at Langley. Then the lateness of his nomination announcement — Obama was probably going to appoint ex-CIA senior official John Brennan to the job originally, and then had trouble finding a nominee after Brennan dropped out under fire from the left — delayed his confirmation hearing before Feinstein’s panel for a week because he couldn’t finish the necessary pre-hearing paperwork in time. If that wasn’t enough, last week his mother-in-law passed away.

Illustration by: Matt Mahurin

But Thursday afternoon is Panetta’s long-awaited confirmation hearing. As something of a cipher on intelligence matters, Panetta can expect a tough hearing. With the CIA intimately involved in the hunt for Al Qaeda; the wars in Afghanistan and Iraq; and the torture policies of the Bush administration, Panetta’s approach to the future of intelligence will have far-reaching implications for U.S. national security, the rule of law, and global human rights. Here’s a guide to what to watch for in his answers.

1. Loopholes in Obama’s torture ban. Practically as soon as Obama released his executive order barring torture and insisting upon a single, government-wide standard for interrogations — no more would one set of Geneva Conventions-compliant standards hold for military interrogators while CIA interrogators used a Geneva-exempt version — journalists busied themselves trying to find loopholes and exceptions. Panetta’s nomination came because of his organizational skills and his high-profile opposition to torture, but thorny questions remain about how to flesh out provisions of the executive orders.

For instance, the orders demand the CIA shut down the so-called “Black Sites,” or secret prisons run by the agency or through its foreign-intelligence partners. But they do allow for CIA to hold detainees on “a short-term, transitory basis” before transferring them to another government agency. But how long should that period be? Hours? Days? Weeks? What procedures should be in place to determine humane treatment of those detainees during a time when they’re not likely to have access to human-rights monitors like the International Committee of the Red Cross? Can CIA interrogators get to work only after the detainees are transferred to other agencies’ custody, or can they interrogate detainees during the “short-term, transitory” period when they have chief custody of a detainee? Panetta, like Obama, has stressed that there shouldn’t be exceptions to bans on torture, but these operational questions are far from resolved.

2. What Panetta says about renditions. Republicans on the Senate panel have told Eli Lake of the Washington Times that they plan to question Panetta on whether he played any role in the Clinton administration’s expanded use of renditions — an extra-judicial process of kidnapping a terrorist suspect abroad and taking him into custody — when he was White house chief of staff. Richard Clarke, who served as counterterrorism czar in the administrations of George H.W. Bush, Bill Clinton and George W. Bush, told Lake that Panetta played no such role; and Clarke recently wrote an op-ed for The Boston Globe arguing that rendition is a valuable counterterrorism tool, so long as it doesn’t become a license to send terrorism suspects to third countries that practice torture, a practice known under the Bush administration (and to a lesser extent the Clinton administration) as “extraordinary rendition.” Indeed, John Brennan, who will serve in the Obama White House as an assistant to the president, has also defended the first, but not the second, kind of rendition.

It will be interesting to hear how Panetta clears up the dispute about his Clinton administration service. More interesting still will be whether Panetta defends renditions at all. Obama’s executive order leaves the door open to the first kind of renditions, empanelling a review of the practice led by cabinet officials to determine that renditions “do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.” What sort of human-rights guarantees will Panetta — who, if confirmed, will participate in the review — insist upon?

3. Hunting al-Qaeda in Pakistan. An increasing part of the hunt for Al Qaeda and Osama bin Laden has come to be military and CIA strikes in the tribal areas of western Pakistan where CIA analysts assessed in 2007 that the terrorist network has reconstituted a “safe haven.” President George W. Bush issued a secret order in 2008 authorizing Special Forces ground raids into Pakistan, and that order is believed to have a component giving similar authorities for the CIA as well. Indeed, CIA and counterterrorism officials told NPR’s Tom Gjelten this week that their raids over the last six-plus months have been so effective that they forsee what one described as a “complete al-Qaida defeat.” The obvious question: does Panetta want to keep or even expand these authorities, particularly as Pakistani officials — who used to look askance at the occasional CIA missile strike into the tribal areas — complain more vociferously about violations of their sovereignty?

4. How to work with the director of national intelligence. One of the thorniest bureaucratic relationships in Washington is the one between the director of national intelligence, the overall head of the intelligence community, and the CIA director, who leads its preeminent component. The lines marking each others’ boundaries are famously murky: the 2004 law stripping the CIA director of the leadership of the 16-agency constellation of intelligence organizations and creating the so-called DNI left a lot unresolved. Over the past year, however, the DNI has gone further into the operational field of intelligence than ever, requiring the chiefs of CIA stations in foreign countries to report to him directly, rather than to the CIA director. “This is like two competing institutions,” a knowledgeable former intelligence official told TWI in December. “The DNI’s not [supposed to] have these resources. If every time he makes a demand on CIA there’s resentment and pushback, it’s a huge problem.”

But how to fix it? Dennis Blair, the new director of national intelligence, didn’t specify during his own confirmation hearing. Under the Bush administration, the CIA director retained responsibilities as manager of the nation’s human-intelligence and clandestine services, which have the difficult work of, among other things, cultivating spies. Does Panetta believe that Congress needs to pass additional laws to clarify that status? Or is he less than perturbed by the DNI’s advances into clandestine activities?

5. What to do about torture investigations? At Dennis Blair’s confirmation hearings, the now-director of national intelligence said he would aid in Senate intelligence committee attempts to investigate the CIA’s dip into torture during the Bush years. But Blair, who served briefly as the CIA’s liaison to the military, isn’t in the same position as Panetta, whose contacts with the agency he hopes to lead have been meager. CIA officers have worried all throughout the Bush administration that they’d find themselves under investigation for implementing the White House’s torture agenda — and investigations can be a prelude to prosecution. To go along with committee-driven inquests risks alienating the CIA rank-and-file.

The investigation issue is likely to emerge as a key one in this afternoon’s hearing. Democrats want a reckoning for the Bush administration; Republicans denounce one as a backward-looking witchhunt. The controversy has rather specific, obscure pivot points: whether, for instance, to release years-old, tightly-held CIA inspector general reports about torture and rendition to the committee, for instance; or whether to release the legal advice about torture offered by former acting general counsel John Rizzo. Veterans of the CIA’s operations directorate — some of whom have already purchased legal liability insurance — can be expected to pay attention to every nuance in Panetta’s answers.

The Guardian has spoken to three ­people with knowledge of the discussions in the Obama camp. There is no talk of Obama approving direct diplomatic negotiations with Hamas early on, but he is being urged by advisers to initiate low-level or clandestine approaches, and there is growing recognition in Washington that the policy of ostracising Hamas is counter-productive. A tested course would be to start ­contacts through Hamas and the US intelligence services, similar to the secret process through which the US engaged with the PLO in the 1970s. Israel did not become aware of the contacts until much later.

A couple things here, first on process and then on substance.

I have no direct knowledge, but seeing the on-the-record quotes in the piece — Steve Clemons, etc — it wouldn’t surprise me if this was a case of reporter Suzanne Goldenberg hearing a few rumors and then calling people who’ve heard the rumors too and then printing them. This happens. We’re all under pressure to break news. Lots of people in Washington hear lots of things. Sometimes transition people hear things from journalists and then the transition people talk with other transition people and then the journalist calls that transition person and all of a sudden what started as a journalist speculation now becomes an inside information. This business can really, really, really blow if you’re not careful. I’m not saying I know for a fact that’s what’s happening in this case. It just wouldn’t surprise me is all.

On the merits. Barack Obama said in the middle of last year that he was open to discussions with unsavory parties because the alternatives are worse — and then he famously excepted Hamas. After that, he cut Rob Malley out of his advisory circle because Malley talked to Hamas. That was, to say the least, inconsistent. What sense does it make to talk to Iran if you’re not willing to talk to Hamas as well? Now, there are practical considerations for declining to cut Hamas out of talks — namely, the apparatus of the Palestinian Authority is still in the hands of Fatah, and Fatah doesn’t want Hamas to be a U.S. interlocutor; neither does Jordan or Egypt. Yesterday at the U.S. Institute of Peace conference, former U.S. Ambassador to Israel and Egypt Daniel Kurtzer, who might be an Obama envoy to the Middle East, came up with an interesting formulation for how to cut Hamas out of peace negotiations. So all of those are pretty strong indications that Obama isn’t really considering that.

However, one of the reasons you have intelligence services is to initiate contacts with officially-untouchable groups like Hamas. This is something that you won’t hear CIA Director-designate Leon Panetta or Director of National Intelligence-nominee Dennis Blair talk about in their confirmation hearings — to do otherwise would undermine the point — but it’s a fact of life. Does it really benefit the United States to not have any contact with an organization, however loathsome I might find it, that holds power over half of the Palestinian territories? And if the Palestinians end up going more and more into Hamas’s camp, does that mean that millions of Palestinians face diplomatic isolation? That’s an untenable position. Hamas outreach through the CIA is a pretty sensible way for the United States to hedge its bets. (Think it hasn’t already happened? I don’t have any inside information, but to believe otherwise is naive.)

Leon Panetta (National Marine Sanctuary Foundation)

The surprising news that former congressman and White House chief of staff Leon Panetta will be tapped to head the CIA represented an about face for President-elect Barack Obama’s early effort at putting an intelligence veteran at the top of the nation’s chief spy agency. But initially at least, the Panetta pick has not generated consternation from intelligence veterans, despite his lack of experience with intelligence.

Illustration by: Matt Mahurin

Although there is concern about putting an inexperienced director in place during wartime, some longtime intelligence officials see Panetta’s proximity to Obama as a silver lining, as having a director with Panetta’s close ties to Obama may ensure the agency’s continued relevance.

“He has no intel background as far as I know,” said one recently retired intelligence official who requested anonymity, “and it’ll be a steep learning curve.” Within an hour, a retired senior official who also requested anonymity repeated the “steep learning curve” line unprompted. Yet both agreed that intelligence experience isn’t the only criterion for chairing the agency.

That looks to be the instant conventional wisdom. Outside of some intelligence planning work he did while in the Army in the 1960s, Panetta’s experience in the intelligence world is minimal. Obaman’s plans to appoint him are a throwback to an earlier era of CIA chiefs who earned their jobs thanks to political fealty to the president. Panetta, a longtime member of the Washington establishment, publicly criticized Sen. Hillary Rodham Clinton’s presidential campaign during the hard-fought primaries in early 2008 — something that was particularly valuable to Obama at the time, given Panetta’s service as President Bill Clinton’s chief of staff. In that respect, Panetta resembles directors like William Casey, who ascended to the head of Langley in 1981 after chairing Ronald Reagan’s presidential campaign. But even Casey, one of the most political CIA directors in history, served in the Office of Strategic Services, the World War II-era forerunner of the CIA.

“Totally political types as head of CIA tend to ruffle feathers, since the [intelligence community] is a complicated, tribal place,” said the recently retired intelligence official.

Still, intelligence veterans interviewed by The Washington Independent were noticeably sanguine about the appointment. Some said that Panetta’s closeness with Obama would give the CIA a relevance with the White House that it chronically worries it will lose. When a small Cessna airplane crashed on the lawn of the Clinton White House in the 1990s, the joke around Langley was that the pilot was then-director Jim Woolsey trying to get an appointment with the president. This fear has been magnified in recent years, after Congress in 2004 stripped the CIA of its premier position within the community by creating an independent intelligence czar known as the director of national intelligence.

“There are probably many, like myself, who would rather see [a CIA veteran] in the job,” said the retired senior official. “But then you say, ‘If not, where do you turn?’ And here’s a guy who was White House chief of staff and obviously has a lot of political juice. Those who’d worry that the CIA will be relegated to a backseat position vis-a-vis the [Director of National Intelligence] can take heart.”

A Democratic official confirmed that Panetta will be the pick — a development first reported by The New York Times on Monday afternoon — and that ret. Adm. Dennis Blair will be the director of national intelligence, the overall head of the intelligence community. Transition officials would not discuss the process that led to the selection of Panetta and Blair.

As a result, the leadership of the intelligence community at a time of war will be a relatively inexperienced one. While Blair served as the CIA’s first-ever liaison to the military before retiring from the Navy in 2002, “Denny’s experience is not that deep,” said the retired senior official — something that might indicate that Panetta will be at least as influential to Obama as Blair. “He had a stint out at Langley ten years ago, he’s not an intel expert,” the retired official continued. “Matching Denny’s political clout against Panetta, I’d be more inclined to pick Panetta, not vice versa.”

Earlier in the transition, Obama signaled that he was looking within CIA circles for the agency’s new leadership. But in late November, the leading candidate for the job, John Brennan, a former senior intelligence official under director George Tenet, withdrew from consideration to be CIA director after Salon’s Glenn Greenwald criticized statements Brennan made for reflecting a cavalier disposition to the torture of detainees in CIA custody and the so-called “rendition” of detainees to countries that commit torture. The selection process — which Brennan still chaired — was believed to focus on longtime intelligence hands who were uncorrupted by the Bush years, when abusive interrogations received official sanction. Panetta’s appointment indicated to several intelligence veterans that too many of their colleagues could either not withstand scrutiny or would generate too much controversy. “People were done in by the past,” said Tyler Drumheller, former chief of CIA operations in Europe during the Bush administration.

Panetta, by contrast, has written forcefully against the use of torture in interrogations. “We either believe in the dignity of the individual, the rule of law, and the prohibition of cruel and unusual punishment, or we don’t,” he wrote in the Washington Monthly last year. “There is no middle ground.”

“I’d rather they picked someone from the operations part, but that was probably wishful thinking anyway,” said Drumheller, who added that he thought Panetta would make a fine director. “The people who weren’t tainted by the Bush years were probably too far removed what’s going on.”

Yet few expect Panetta to conduct a purge of the agency over torture — as Porter Goss, the congressman tapped by George W. Bush in 2004, conducted to weed out those considered insufficiently loyalty to Bush’s politics. “It won’t be ‘everyone submit their resignations and I’ll sort it out,’” Drumheller said. “The president might have to sort out senior people, who could go before Congress and explain why they did these things. In part they were following orders.”

Panetta’s announcement did not please everyone. Sen. Dianne Feinstein (D-Calif.), the incoming chairwoman of the Senate Select Committee on Intelligence that will hold Panetta’s confirmation hearing, all but denounced the choice. “I was not informed about the selection of Leon Panetta to be the CIA Director,” Feinstein said Monday afternoon. “I know nothing about this, other than what I’ve read. My position has consistently been that I believe the agency is best-served by having an intelligence professional in charge at this time.” Feinstein spokesman Phil LaVelle said the senator had not yet scheduled a confirmation hearing.

Bob Graham, the former Democratic Florida senator and governor who chaired the Senate intelligence panel from 2001 to 2003, welcomed the Panetta pick. “He’s an extremely able person, having been both in Congress for many terms and as chief of staff for President Clinton,” Graham said. “He understands the needs of users of intelligence. That’s very valuable as he shapes and leads the principle human intelligence agency of the United States.”

Drumheller was more skeptical that experience receiving intelligence from the CIA was particularly relevant for an incoming director. “That doesn’t mean anything,” he said. More important will be an ability to determine whether the agency veterans will try and take advantage of his inexperience. “The problem with the agency is that people will be defending what they’ve done” in the realm of interrogations and detentions, rather than simply explaining it, Drumheller continued. “That’ll waste people’s time, frankly: ‘We did what [WE] did because we were told to by the president.’”

The retired senior CIA official agreed. Panetta will “have to embrace the professionals, but maintain the healthy agnosticism about what he’s being told, particularly early on,” the ex-official said. “I’m not saying they’re dishonest, but sometimes you really have to roll sleeves up, [to avoid agency-led debacles like] the Bay of Pigs and that nonsense.”

All CIA veterans interviewed for this piece agreed that it was imperative Panetta not enter Langley with too many preconceived notions. “Much depends on what his approach is,” said the retired senior official. “If he comes in [with the attitude] to set [the] place right or with an agenda, then he’ll run into a buzzsaw.”