Sunday, September 20, 2009

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Not only will some members of the intelligence community be subjected to costly financial and other burdens from what amounts to endless criminal investigations, but this approach will seriously damage the willingness of many other intelligence officers to take risks to protect the country. In our judgment such risk-taking is vital to success in the long and difficult fight against the terrorists who continue to threaten us.
-- Excerpt from Friday's letter from 7 former Directors of the Central Intelligence Agency to President Barack Obama. The 7 signatories were Michael Hayden (above, far right), Porter Goss (above, near right), George Tenet (above left, receiving Medal of Freedom from President George W. Bush in 2004), John Deutch, R. James Woolsey, William Webster, and James R. Schlesinger. Can't help but note that the 1st 3 would seem to have a very vested interest in the letter's subject matter: All 3 led the CIA during the post-9/11 period that is now the subject of the Justice Department's preliminary inquiry.

(hat tip for text to our Opinio Juris colleague Kenneth Anderson)


CaitlynA said...

I believe that it would be a good thing for future officers in intelligence agencies to be able to point to precedent where violation of law incurs punishment. Without that to point to, officers who believe they are being asked to do unlawful acts have little ability to make their case.

On the other hand, some degree of benefit could be had by identifying those officers who, during the Bush Administration, questioned orders and policies that appeared to violate US law and international agreements and were punished or had their careers derailed for questioning those orders and policies. Certainly there are a few people that the current administration could identify and honor for their actions and use that to provide both a positive example and a carrot to encourage such action in the future.

The letter from the former CIA directors has the worst of both worlds - protect people who failed to question illegal orders and policies and leave those who did raise questions or refused such orders to continue to bear the cost (lost career opportunities or even lost of their job) of their actions.

In fact, given the tight constraints on the investigation, I suspect that honoring those who questioned orders might be more productive than investigating those who not just followed such orders but went beyond their limits. Some reinstatements, promotions, commendations and medals could go a long way to avoiding problems like this in the future. I understand that the former directors might not see a value in encouraging dissent within their former agency, but we will be a lot better off if we identify examples of appropriate dissent and honor them.

Schmedlap said...

This issue is more valuable as a domestic political weapon if it is never resolved. Bringing this issue before a court would result in ambiguities being clarified. In particular, the court might clarify what constitutes "torture" and perhaps whether authorizing it under the particular circumstances was a clear violation of law or a political decision that could be classified as a nonjusticiable political question.

I suspect that the legal definition of torture would be far narrower than what many people think it is. That would make this issue a far less flexible political weapon. The political question possibility also creates the risk that the court might dismiss altogether, further degrading the effectiveness of the issue as a political weapon.

Consequently, this will never see any decisive legal action in a court room. It is more advantageous for the administration to leave it ambiguous so that it can be revived whenever needed to stir up anger. Furthermore, the second-to-last paragraph of the letter from the former CIA directors is the most important from the standpoint of any President. Even if the administration for some reason wanted to bring closure to this issue, going back on an agreement to keep foreign intelligence cooperation secret would hamper what is already a painful sharing arrangement.