There aren't many issues on which the Obama administration has been as disappointing as on the issue of the crimes of the previous administration. The ruling fiction coming from the White House is that it's time to move on, as if the law only applies to things that are happening right now, as if you can only arrest and charge a criminal if you catch them in the act. If they manage to commit a crime and not be arrested on the spot, then that means they've gotten away with it.
It's gotten so bad that when Attorney General Eric Holder announced last month that he might appoint a special prosecutor to investigate torture, it was big, big news. "Nation's Top Cop May Investigate Crime" really shouldn't be a big headline. At least, not in a country that applies the law evenly, regardless of how powerful the criminal is or was. Torture is one of the most heinous crimes that a state can commit and it's astounding that there's any controversy about prosecuting it. If you need evidence of just how badly this sort of crime can harm the nation committing it, there you go -- respect for law among the country's most powerful has been shattered by the action. And respect for law among the country's most powerful must be restored.
Part of the problem is that Washington insiders live in a separate reality, where what is right is determined by what is good politics and where what is possible is determined by the number of insiders an action would hurt. Entrenched thinking pervades agencies like the FBI and the CIA and the battlecry of "change" doesn't reach into those trenches. On the issue of torture, the argument is made that it would harm people's abilities to do their jobs. If you start prosecuting for torture, interrogators would be overly careful, for fear of prosecution. If this is true, you wonder how intelligence gathering operated before the Bush administration showed up and torture was clearly illegal. It could only have been by tremendous luck that the United States was never destroyed by her enemies, because interrogators must've been terrified into paralysis about doing their jobs.
None of which excuses the Obama administration. The FBI and CIA serve the government, not vice versa. And if the agencies are resistant to change and fearful of accountability, it's the duty of the White House to ask them one very important question; "So what?" When someone tells the administration, "That's not how we do things around here," the correct response should be "It is now."
Pushing back against the idea of accountability is Leon Panetta, Obama's appointment to CIA Director. In a Sunday op-ed in the Washington Post, Panatta makes the case for doing nothing about what is inarguably a crime.
Last month, at a meeting overseas of intelligence service chiefs, one of my counterparts from a major Western ally pulled me aside. Why, he asked, is Washington so consumed with what the CIA did in the past, when the most pressing national security concerns are in the present? It was a very good question. In fact, I've become increasingly concerned that the focus on the past, especially in Congress, threatens to distract the CIA from its crucial core missions: intelligence collection, analysis and covert action.
In our democracy, effective congressional oversight of intelligence is important, but it depends as much on consensus as it does on secrecy. We need broad agreement between the executive and legislative branches on what our intelligence organizations do and why. For much of our history, we have had that. Over the past eight years, on specific issues -- including the detention and interrogation of terrorists -- the consensus deteriorated. That contributed to an atmosphere of declining trust, growing frustration and more frequent leaks of properly classified information.
Apparently, our "major Western ally" is incapable of walking and chewing gum at the same time. All that torture stuff is in the past, what's the deal with worrying about it now? Never mind that every single person who's ever been convicted of any crime has been convicted of a crime they committed in the past. "Let's let bygones be bygones" hasn't been a successful defense in a single one of those cases.
And we need consensus between the CIA and congress? Yeah, that'd be great. But we're not talking about co-equal branches of government here. The CIA serves the nation, which means they answer to congress. Get a contitutional amendment making the CIA a fourth branch of government and you've got a point, Leon. Otherwise, that's not a very good argument. If a consensus is essential, it's your job to get it. You bring the CIA in line with the rest of the government, because doing it the other way is as insane as it is unconstitutional. Oversight means oversight, not bending over backwards to let agents do whatever the hell they want to do. The word "overseer" does not imply a subservient position.
Panetta goes on to argue that the CIA has made changes and that should be the end of the story. After briefing congress on a program that the agency kept secret from the legislative branch, congress apparently went nuts and decided that their constitutional duties actually meant something. How crazy is that?
Unfortunately, rather than providing an opportunity to start a new chapter in CIA-congressional relations, the meeting sparked a fresh round of recriminations about the past. I recognize that there will always be tension in oversight relationships, but there are also shared responsibilities. Those include protecting the classified information that shapes our conversations. Together, the CIA and Congress must find a balance between appropriate oversight and a recognition that the security of the United States depends on a CIA that is totally focused on the job of defending America.
There it is again, a "new chapter" of letting bygones be bygones. Besides, Panetta briefed congress and then some members blabbed about it -- without giving away any state secrets. The CIA can't trust congress and that's bad.
Or it would be if the Constitution didn't say otherwise. Once again, Panetta seems to argue that the CIA is congress's constitutional equal and that co-operation between the agency and the people under the Capitol dome is the result of negotiation and understanding -- like a treaty between two nations.
But Panetta's argument still hasn't plumbed the depths of deliberate stupidity. Perhaps realizing that he isn't making any damned sense at all so far, he runs up the favorite flag of the previous administration.
The time has come for both Democrats and Republicans to take a deep breath and recognize the reality of what happened after Sept. 11, 2001. The question is not the sincerity or the patriotism of those who were dealing with the aftermath of Sept. 11. The country was frightened, and political leaders were trying to respond as best they could. Judgments were made. Some of them were wrong. But that should not taint those public servants who did their duty pursuant to the legal guidance provided. The last election made clear that the public wanted to move in a new direction.
Shut up, Leon. You're right about one thing, the question isn't "the sincerity or the patriotism of those who were dealing with the aftermath of Sept. 11." No one gives a damn. The question is the legality of their actions. You might have heard a cliché about the pavement of the road to hell -- no one should give a damn that their intentions were good. And saying that the "country was frightened, and political leaders were trying to respond as best they could" is irrelevant. This is basically saying that the Bush administration panicked at the exact moment they should've kept their heads. I couldn't care less how terrified the perpetually frightened Dick Cheney was. The motive is evidence, not a defense. If 9/11 sent the Bush administration over the edge, then that's just one more strike against them.
If Panetta wants to restore confidence in the CIA, then he can not only work to change the agency -- which, in his defense, he seems to be doing -- but he can also prove it. A first step in doing that would be to prove that the agency understands its relationship to congress. Right now, he's flunking that test badly.
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