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The first thing we do, let's prosecute all the lawyers.

May 18, 2009, Vol. 14, No. 33 • By TOD LINDBERG
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The question of whether to open a criminal investigation into the conduct of Bush administration officials with regard to interrogation methods for detainees is burning bright for the Obama administration and the legal community at home and abroad. For some, the question is a simple one: Such techniques as waterboarding constitute torture, which is unambiguously prohibited in black-letter law under the terms of the Convention against Torture, to which the United States is a party, as well as under U.S. criminal law. Such techniques also run afoul of the Geneva Conventions regarding detainee treatment, which likewise binds the United States. These violations demand legal accountability for the perpetrators.

But who are the perpetrators? That's where things get interesting.

CIA operatives and their superiors apparently sought and obtained legal opinions from the Bush administration Justice Department--the so-called "torture memos"--authorizing in highly detailed terms the interrogation techniques the agency was permitted to employ on specific "high-value detainees." The intentions of the Obama administration are still unclear, but initial indications from the administration, including the president himself, are that the CIA interrogators who actually used the harsh methods will not be subject to prosecution. That seems to be because they were relying on the Justice Department's finding that certain harsh techniques (but not all harsh techniques) were within bounds. Even if the Bush administration itself subsequently changed its view on the bounds of the permissible to the point of withdrawing some of its initial legal conclusions on detainee treatment--a repudiation the Obama administration embraces and will likely extend farther--CIA operatives were relying on the guidance from the Justice Department about what was legal, and so should not (by this reasoning) be subject to prosecution according to a standard of legal conduct that was not in place at the time.

Many observers breathed a sigh of relief after Obama went to Langley and made comments in line with this position. The Washington Post columnist David Ignatius, who is well plugged-in to intelligence circles, warned of the debilitating effect on the agency the threat of prosecutions was having: "President Obama promised CIA officers that they won't be prosecuted for carrying out lawful orders, but the people on the firing line don't believe him. They think the memos have opened a new season of investigation and retribution." The willingness of operatives to take risky assignments, and not just with regard to interrogations but in all the legally murky aspects of intelligence and counterterrorism programs, could diminish to levels alarmingly dangerous to the safety of Americans if those doing this hard work cannot be sure that the lines they understand they must not cross won't be moved after the fact. One day you are serving your country by taking action; the next day you are criminally liable for having taken exactly that action. This is no way to run an intelligence service.

To this pragmatic consideration, one might add another: Does the Obama administration really want a war with its intelligence agencies? The amount of political damage intelligence officials can inflict through leaking sensitive information or shading findings in certain ways is vast--as the Bush administration learned the hard way. The Obama administration, which received a warm "not-Bush, not-neocon" welcome from the intelligence community, if not a fonder embrace, would have to be reluctant to jeopardize the good relations.

But what about the torture? Do you really want to let the people doing the actual torturing, if that's what you think they were doing, get away with it? If you are going to make a categorical imperative of opposition to torture, shouldn't everyone involved in the process be subject to accountability for their actions? If waterboarding is obviously torture and could not be mistaken for anything else by any reasonable person, then a piece of paper with a legal argument is hardly going to turn it into something else. If the conscience is shocked, it should stay shocked, no?