Don’t prosecute CIA interrogators

President Barack Obama has reportedly approved a new team of elite interrogators to question important terrorism subjects. And oversight of that team will fall not to the CIA, but to a new group made up of experts from several intelligence agencies, headed by the FBI and the National Security Council.

As such, the White House will have more direct oversight over questioning of top terrorism suspects. It also represents a further effort by the Obama administration to distance itself from the interrogation practices of the Bush administration.

That’s understandable, since Obama made a point of saying he would do just that while campaigning for president. It’s especially to be expected in light of the CIA inspector general’s report from 2004 that was released Monday. It detailed the use of some highly questionable interrogation tactics.

But we hope Obama remembers his promise not to prosecute CIA officers who acted in good faith interrogating terror suspects.

That hope comes in light of another report out of Washington Monday that says Attorney General Eric Holder will appoint a special prosecutor to investigate whether to file criminal charges against some of the CIA officers involved in interrogations that occurred in the aftermath of 9/11.

Even though we find some of the practices repulsive, we believe prosecution would be a mistake except for the most extreme circumstances — if it can be proved the officers went beyond what they were told was legal.

It’s clear most of the interrogation techniques involved were approved by top officials with the Justice Department of the Bush administration. CIA officials acted on legal opinions that told them techniques such as waterboarding were acceptable.

Blame for that should fall on people such as former Justice Department lawyer John Yoo and former Assistant Attorney General Jay Bybee, whose questionable legal opinions authorized interrogation techniques that were clearly not acceptable under international agreements or U.S. military procedures. They won’t face criminal prosecution, but they could — and should — face sanctions by state bar associations.

Prosecuting CIA line officers involved in the interrogations would have detrimental effect on current intelligence operations. No one assigned to interrogate a terrorism suspect could be confident he or she wouldn’t be prosecuted at some point in the future, even if they were assured that Obama’s interrogation oversight team had approved the practices they are using today. Jeffrey H. Smith, general counsel for the CIA during the Clinton administration, made that point in a column for The Washington Post Monday.

Beyond that, both the Justice Department and congressional leaders reviewed the CIA report shortly after it was completed, and deemed no action was appropriate at the time. To prosecute CIA line officers now would reek of political retribution, not justice.

President Obama has every right to institute new policies and oversight of our interrogation techniques. But he would be wrong to allow prosecution of CIA officers who acted on the legal advice they were given in the white-hot fear of more terrorist attacks that followed that horrible September day nearly eight years ago.


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