Monday, August 24, 2009

Defending war crimes

I had a lot of respect for Leon Panetta before he became Director of the CIA. But his defense of the torture program and insistence on shielding perpetrators from prosecution has made me wonder whether he has even the most basic respect for law. Spencer Ackerman in Leon Panetta in the Hour of Chaos Washington Independent 08/24/09 gives the text of a letter Panetta sent out to CIA employees in advance of today's scheduled public release of the CIA Inspector General's own 2004 report on torture crimes. It includes this paragraph:

As Director in 2009, my primary interest - when it comes to a program that no longer exists - is to stand up for those officers who did what their country asked and who followed the legal guidance they were given. That is the President’s position, too. The CIA was aggressive over the years in seeking new opinions from the Department of Justice as the legal landscape changed. The Agency sought and received multiple written assurances that its methods were lawful. The CIA has a strong record in terms of following legal guidance and informing the Department of Justice of potentially illegal conduct. [my emphasis]
Panetta's primary responsibility as a government official and as CIA Director is to defend the Constitution and the laws of the United States. It's not to shield criminals in his agency's employ from prosecution for criminal acts they committed. If some actual reporter gets the chance, they should ask Obama if Panetta has stated the President's position correctly.

"I was just following orders" is not a legitimate defense for committing a crime. And most of the torture techniques used in the Cheney-Bush torture program were unmistakably crimes: the drowning torture ("waterboarding"), prolonged isolation, sensory deprivation, hanging victims by their arms, forced standing for many hours or days, and so on. The military has acknowledged around 100 deaths of detainees with a couple of dozen of them ruled homicides. Murder is also a crime, whether or not someone ordered the murderers to do it. Or whether some mob lawyer in the Justice Department wrote a memo saying it was all right.

Panetta's letter illustrates what a large hole the torture program has blown in the rule of law. We're not talking about marginal acts here. We're talking about clearly criminal acts, many of them blatantly sadistic and seriously twisted, including murder. Panetta's defense of CIA torturers is that someone wrote a legal opinion saying it was okay and someone relying on that opinion ordered the hands-on perpetrators to torture and/or murder prisoners. And that the hands-on perpetrators of those sick sadistic acts should be immunized for prosecution for their seriously criminal deeds.

Panetta may have put his contempt for the laws against torture in a more open and cynical formulation than the current President and Attorney General. But he's stating the current policy of this administration, a policy which itself is illegal because the administration is obligated to prosecute torture crimes. Just as the previous administration was, but didn't, because the torture crimes were being authorized and directed at the highest level.

Panetta goes on to explicitly endorse the use of torture as valid:

I make no judgments on the accuracy of the 2004 IG report or the various views expressed about it. Nor am I eager to enter the debate, already politicized, over the ultimate utility of the Agency’s past detention and interrogation effort. But this much is clear: The CIA obtained intelligence from high-value detainees when inside information on al-Qa’ida was in short supply. Whether this was the only way to obtain that information will remain a legitimate area of dispute, with Americans holding a range of views on the methods used. The CIA requested and received legal guidance and referred allegations of abuse to the Department of Justice. President Obama has established new policies for interrogation. [my emphasis]
Based on the information in the public record, even his claim that the CIA gained valuable intelligence on "al-Qa'ida" is highly dubious. Panetta uses weasel words in that sentence and doesn't specifically say that torture produced valuable information. But in the particular context of the letter which addresses the CIA Inspector General's report on torture crimes, that's clearly what he wants the readers to think.

The sentence I bolded in that last quote cannot be reasonably interpreted as anything but a Panetta endorsement of torture as a legitimate practice. By the laws and the treaty obligations of the US under the Torture Convention of 1984, use of torture is not at all "a legitimate area of dispute". The fact that there are "Americans holding a range of views on the methods used" does not make those methods legal or the views of torture supporters like Panetta anything other than obscene.

Panetta's letter is a straight-up justification for criminal activities on the part of his already excessively secret agency. Anyone holding views like this on the enforcement of laws as clear-cut as those against torture should not be serving as the director of the CIA. It shows excessively bad judgment on the part of President Obama and his administration that Panetta wasn't fired within the hour that they learned of the text of this letter.

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