New York Times (12.13.07).
News Analysis
………
WASHINGTON — For six years, Central Intelligence Agency officers have
worried that someday the tide of post-Sept. 11 opinion would turn, and their
harsh treatment of prisoners from Al Qaeda would be subjected to hostile scrutiny and
possible criminal prosecution.
Now that day may have arrived, after years of
shifting legal advice, searing criticism from rights groups — and no new
terrorist attacks on American soil.
The Justice Department, which in 2002 gave the
C.I.A. legal approval for waterboarding and other tough interrogation methods,
is reviewing whether agency officials broke the law by destroying videotapes of
those very methods.
The Congressional intelligence committees, whose leaders
in 2002 gave at least tacit approval for the tough tactics, have voted in
conference to ban all coercive techniques, and they have announced
investigations of the destruction of the videotapes and the methods they
documented.
“Exactly what they feared is what’s happening,” Jack
Goldsmith, the former head of the Office of Legal Counsel at the
Justice Department, said of the C.I.A. officials he advised in that job. “The
winds change, and the recriminations begin.”
The legal siege against the Bush administration’s counterterrorism programs goes far beyond the C.I.A.,
including lawsuits brought on behalf of hundreds of detainees held at
Guantánamo Bay, Cuba, and more than 40 challenges in court to the National Security Agency’s warrantless surveillance program.
For some at the C.I.A., the second-guessing began
in 2004 with a decision by Mr. Goldsmith, now at
“Things that seemed to them five years ago to have
airtight legal and political support are now under investigation,” he said,
comparing this cycle to the Senate hearings into C.I.A. abuses in the 1970s and
the criminal prosecution of C.I.A. officials in the Iran-contra affair of the
1980s.
Even a C.I.A. officer involved in capturing and
questioning leaders of Al Qaeda expresses a striking
ambivalence about the policies that were carried out.
John C. Kiriakou, who
helped lead the team that caught the Qaeda operative Abu Zubaydah in
But Mr. Kiriakou, a
43-year-old father of four who left the agency in 2004, also said in an
interview that he believed waterboarding was torture and should never be used
again, because “we Americans are better than that.” He added: “I think the
second-guessing of 2002 decisions is unfair. What I think is fair is having a
national debate over whether we should be waterboarding.”
Legal hazards were on the minds of Bush
administration officials from the beginning of the response to 9/11. The 2002
Justice Department interrogation opinion laid out some defenses interrogators
might use against criminal accusations of torture.
“The administration’s success in preventing attacks
has become its enemy,” said John
Yoo, the former Justice official who wrote most of the 2002 opinion.
Since then, he added, “The political environment has changed because people
feel the threat is less than it used to be.”
Mr. Yoo’s legal opinions, though criticized as
seriously flawed by some scholars, may nonetheless provide impenetrable armor
for C.I.A. officers. From the beginning, wary agency officials insisted on what
they called “top cover” — written Justice Department approval for what they
did.
Most legal scholars say that even under a future
administration, the Justice Department would not seek charges against C.I.A.
officers for actions the department itself had approved.
Another obstacle to such prosecutions would be the
laws passed by Congress in 2005 and 2006 granting extensive legal protection
for authorized conduct. But the videotape destruction may not have such
protection; the episode recalls the adage of
The deaths of several prisoners who had been
questioned by C.I.A. officers or contractors in Iraq and Afghanistan — but
outside the detention program for high-level Qaeda
prisoners — have been referred to the Justice Department. Only one C.I.A.
contractor, David A. Passaro, has been prosecuted,
receiving an eight-year sentence for beating an Afghan man who later died.
Still, investigations can impose a high price no
matter how they end. “It’s not just the fear of going to jail,” Mr. Goldsmith
said. “It’s the enormous expense of hiring lawyers. It’s seeing your reputation
destroyed. It’s losing your career.”
Overseas, C.I.A. officers implicated in rendition
cases have been sought on criminal charges in
The Center for Constitutional Rights in
“The only way to restore the moral authority of our
country,” said Michael
Ratner, the group’s president, “is
accountability.”