When the CIA was asked to engage in aggressive tactics early in the Bush administration, it knew from bitter experience that the political winds would change and that it might be subject to "retroactive discipline." And so it sought approval from the president and his Cabinet, informed congressional leadership many times about what it was doing and got what it thought were airtight legal opinions from the Justice Department.It remains to be seen whether exercising legal caution will be to the detriment of national security. I'm inclined to believe it won't. But either way, legal "skittishness" at the CIA may be one outcome of investigations, but one can hardly say that the investigations themselves are to blame.
But these safeguards failed, and the CIA is once again mired in investigation and controversy. The lesson learned by many at the agency is that politically sensitive counterterrorism actions should be avoided, even if they are deemed legal and even if they have the express approval of political officials. We are going to be living with this skittishness for a long time, to the detriment of our security.
Instead, fault lies with the Bush administration's ill-advised policies, policies that were barely propped up by shoddy legal work that was itself a result of routine circumvention of proper procedure. If Dick Cheney, David Addington and the rest of the self-appointed "war council" hadn't actively bypassed anyone who might have objected--that is, almost everyone else--torture never would have seen the light of day. If the CIA would like someone to blame, they can blame this cabal plus John Yoo, the ideological dough-boy at OLC whose legal opinions had to remain secret--even from other lawyers in the administration--because they were unable to withstand scrutiny.
Of course, the great irony here is that it was Goldsmith himself who in 2003 and 2004, as Yoo's replacement at the OLC, fought hard to overturn these egregious errors at great personal and professional risk. Goldsmith deserves more respect than he usually gets, but those responsible for war crimes deserve prosecutions.
The people in government who made mistakes or who acted in ways that seemed reasonable at the time but now seem inappropriate have been held publicly accountable by severe criticism, suffering enormous reputational and, in some instances, financial losses. Little will be achieved by further retribution.But isn't that just it? These were never reasonable actions. If they were, then Addington and Cheney would have used the appropriate channels to push the new policies. Instead, they crafted them in secret and carefully guarded them from the eyes of all but the hardest-core ideologues. And then, as others outside this smallest of circles found out, objectors were bullied. Even some careers were ruined.
"Severe criticism" isn't enough. We don't seek retribution, but rather the restoration of our national conscience and our international credibility. Prosecutions can provide that.