Friday, April 17, 2009

Liability Insurance for Interrogators Revisited

The below piece first appeared on The Huffington Post on January 12, 2009. I think it deserves a second look in light of Thursday's disclosure by Attorney General Eric Holder that there will be no prosecution for CIA interrogators who were following orders. Implicit in the notion of "insurance" is the possibility for future acts that might warrant prosecution.

Notably, Spain's recent indictment of the so-called Bush Six may well be followed by British criminal charges.

Despite what the new administration says, if the U.S. does little more than promise never to torture again and, by default, sanctions not only these egregious practices, but the chronic lies to cover them up, there is no way we can ever be expected to regain a dignified place in the international community:


If leading Democratic senators have their way, agents and officials with the Central Intelligence Agency will be immunized against prosecution for any criminal activity arising from taking commands, and/or employing "alternative methods" of interrogation, under George W. Bush, and under future presidents
Senator Dianne Feinstein, newly appointed head of the Senate Intelligence Committee, (sic), told the Associated Press that the CIA was just following orders from the National Security Council, and the executive branch, hence they should not be held legally liable for their actions. We need Intelligence to tell us not to hold Intelligence responsible for how they get intelligence?

What's more, on Sunday morning President-elect Obama told ABC News that it is "unlikely" there will be criminal charges filed against national security officials who were involved in harsh interrogation practices, or wiretapping. This will be in keeping with what Obama insists will be his administration's policy of "looking forward as opposed to backwards," a kind of Zeno's Paradox.

Obama also now thinks that the prospect of shutting down among the most notorious, despised, and universally condemned detention centers, Gitmo, within the first 100 days of his tenure, will be "a challenge." An even greater challenge in the coming months and years will be explaining to the American people how effective the holding center for "unlawful enemy combatants," in Cuba, has really been in keeping us, and the rest of the world, safe unless, of course, you don't include what's going on now in Gaza as part of what is often called the war on terror. Yet an even greater challenge for the next administration may be to figure out who the real terrorists are.

Since the days of George H.W. Bush, one thing has become crystal clear -- no ideology can hope to survive without windshield wipers.

When asked if he has any plans for the equivalent of a 9/11 Commission to look into any criminal activity, or violation of constitutional integrity, by the Bush administration, the President-elect indicated that he wants the focus to be on keeping America safe instead, and not have intelligence agents be distracted by "lawyering." Who can argue that there's too much lawyering, in America, as it is, yet not enough adherence to laws, at least not enough law enforcement when it comes to our lawmakers and elected officials.

Few would question Obama's assertion that closing Gitmo within a few months isn't plausible. Senator Feinstein has called for closing the detention center in Cuba in a year. Does the President-elect think that a year is a reasonable timeframe? Does he have a concrete plan in place for closing not just Gitmo, but other detainee holding centers in Afghanistan and Iraq that are holding thousands, not hundreds? We think so, and are ready for him to implement it.

Notably, Obama wasn't the only one making the Sunday morning T.V. talk circuit. President Bush was, too, and the outgoing president joined the vice president in defending waterboarding holding to the party line that the information obtained through this, and other traditionally illegal means, helped to save American lives. The president added: "Look, I understand why people can get carried away on this issue, but generally they don't know the facts."

The candidate who has been dubbed "no drama Obama" has gone on record saying he considers waterboarding torture, and that there will be zero tolerance for torture in an Obama administration. Yet, on the same day, and in a separate interview, his predecessor, and the 43rd president, George W. Bush expressed confidence that 44"understands the nature of the world and understands the need to protect America." We find the fact that Bush would say this about Obama, or anyone else elected to be our next head of state, frankly scary.

Well, we don't profess to have all "the facts," but about a year ago, the CIA said it would assume the full cost of providing "legal liability insurance" for employees of the agency, and indicated that an estimated two-thirds of its work force would be eligible for legal cover from prosecution.

So, a government that granted immunity to telecoms who violated consumer privacy laws by eavesdropping on the personal conversations of millions of their customers now wants to provide insurance that will immunize their agents from having to face future criminal charges if they find themselves breaking constitutional prohibitions against cruel and unusual punishment, and/or international law.

Senator Feinstein has said that the White House is responsible for giving the directives as to what kinds of interrogation methods should be used just as the approval for ordering the egregious gunning down of innocent Iraqi civilians in Haditha, and elsewhere, came from the top, so those who followed commands should be held harmless. If this is true, do we let the shooter walk because his sergeant gave him the command to fire the gun?

"We're going to continue our looking into the situation and I think it is up to the administration and the director" as to which course to pursue when it comes to holding accountable those who broke the law, then made it law. It's time for our elected officials to start taking responsibility for their actions, and if they're unwilling to do so, then it's time for a new administration to start holding them responsible.
Now that we know who shouldn't be prosecuted, maybe the good senator from California can tell us who should be?

This presidential campaign has proven irrefutably that the major discernible difference between a Democrat and a Republican is that a Democrat shoots himself in the foot whereas a Republican shoots you in the foot. And, should you have any question about that, just ask Dick Cheney.
But, who can argue with President-elect Obama when he says that "we need to look forward as opposed to looking backwards," and that he wants to "get things right in the future" instead of focusing on "what we got wrong in the past."

No one would be presumptuous enough to advise the next commander-in-chief what he should do to get things right in the future, but a good place to start, especially given the military build-up in Afghanistan, might be to take a look at why the agency entrusted with carrying out detainee interrogations is now assuming the full cost of providing legal cover, and has increased the number of those eligible to nearly two thirds of its staff.