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The Obama administration took office, in the new president’s words, determined to look forward, not backward, and as part of that philosophy it was agreed that it would be unfair to prosecute frontline CIA agents for harsh, even unduly harsh, interrogation techniques that they believed were authorized by the Justice department and encouraged by the White House.
In 2004, the CIA’s inspector general did an investigation of those interrogations and found much that was "inconsistent with the public policy positions that the United States has taken regarding human rights." Not only inconsistent but also very likely illegal under U.S. and international law.
The CIA then appeared to have acted properly. It referred the most egregious cases of prisoner abuse to the Justice department. Those investigations, the current CIA director, Leon Panetta, was at pains to point out, were conducted by career prosecutors and not by the higher ups who had drafted the guidelines that seemed to condone torture. Those investigations resulted in a single prosecution.
And there the matter stood for five years until the IG’s report became public this week. It contained some sickening stuff — naked, shackled and hooded prisoners, threats with handguns and electric drills, a mock execution, induced unconsciousness, threats to kill a detainee’s children and have the mother of another detainee raped.
Attorney General Eric Holder then seemed to ditch the policy of protecting agents who acted in good faith and appointed a prosecutor, assistant U.S. attorney, John Durham, to reinvestigate those cases of abuse. Holder says he has no choice but to follow the law.
He has to follow the law but he has considerable discretion as to how he follows it. If there were clear, willful and knowing violations of the law, perhaps the department should prosecute. But the attorney general also should consider the conditions under which the agents labored in 2002-2003. It was widely believed another 9/11-style terrorist attack was imminent. Many of the interrogators seemed poorly trained for the task, were poorly supervised and given little guidance. Meanwhile, the White House was pounding away at the agency demanding actionable intelligence.
The Obama administration has done the right thing, seeing that these abuses don’t recur by creating an elite interagency interrogation unit to question high value terrorism suspects. Durham should act with the greatest restraint and then quickly close this unfortunate chapter.