The Problem Being ???

The “Washington Post”:http://www.washingtonpost.com/wp-dyn/content/article/2009/08/29/AR2009082902388.html?hpid=topnews cites worries among intelligence officials:

A. B. “Buzzy” Krongard, the third-ranking CIA official at the time of the use of harsh interrogation practices, said that although vigorous oversight is crucial, the public airing of once-classified internal assessments and the prospect of further investigation are damaging the agency. “Morale at the agency is down to minus 50,” he said. … Krongard, one of the few active or retired CIA officers with direct knowledge of the program willing to voice publicly what many officers are saying privately, said agency personnel now may back away from controversial programs that could place them in personal legal jeopardy should their work be exposed. “The old saying goes, ‘Big operation, big risk; small operation, small risk; no operation, no risk.’ ” “If you’re not in the intelligence business to be forward-leaning, you might as well not be in it,” Krongard said.

‘Forward-leaning’ in this context being a rather transparent euphemism for being ‘willing to break the laws forbidding torture of captives.’

There is of course a case that relatively low ranking CIA officers should not be prosecuted for torture while the high officials that ordered them to torture, or provided flimsy legal justifications for torture (or perhaps indeed encouraged them to go beyond the guidances provided) get off scot free. But I think that the pragmatic case that these officers should be prosecuted is a stronger one; on two grounds.

First, and most obviously, bringing these cases to trial may lead to the uncovering of new evidence. The most obvious defense open to these officers is that they were indeed only following legally mandated instructions – and it seems at least plausible to me (as a non-lawyer) that a judge will be more likely to allow discovery on potentially exculpatory evidence for these officers than for other potential plaintiffs, such as those who were in fact the victims of this torture. This is of course screwed up – but it is (as best as I can tell) part of the legal culture of this country. This evidence might perhaps (not very likely, given politics – but then I would not have predicted Holder’s decision a month ago) lead to the prosecution of high level officials who were more directly involved in creating the policies in question and possibly encouraging their underlings to go beyond even these policies.

Second, the more cautious that low-ranking CIA officers are about breaking the laws criminalizing torture in future, the better. I _want_ them to be worried that they will be hung out and left to dry by their political masters if they break the law. This will give them a strong rationale to say no, the next time that they are asked to, and at least partially reshape the incentive structure in benign ways. There is something rather obviously fucked up about a political culture in which high ranking officials can make the opposite claim – that we want intelligence officers to be able to break the law by torturing people, and that not giving them this license ‘lowers morale.’ But you would not know that from reading the _Washington Post._