Central Intelligence Agency (CIA)

Panetta was a surprise choice to lead the Central Intelligence Agency (CIA), since his reputation rested primarily on his mastery of domestic policy—a mastery acquired as chairman of the House Budget Committee, as President Clinton’s budget director, and later as his chief of staff. Although some colleagues say that Panetta can be “principled to the point of rigidity,” it was more his reputation for rectitude and integrity than as his grasp of the intricacies of national security issues that got him the CIA job.

In May 2009, Panetta found himself preoccupied not with foreign enemies but with domestic critics, both conservative and liberal. From the right, former Vice President Dick Cheney accused the Barack Obama administration of “making the American people less safe” by banning the enhanced CIA interrogation of terrorism suspects that had been sanctioned by the George W. Bush administration. From the left, human rights activists and some Democratic members of Congress called for the establishment of some sort of inquiry—a special prosecutor, a congressional investigation, a truth commission—to determine whether the Bush administration lawyers who had argued that waterboarding and other harsh interrogation techniques could be employed in the aftermath of 9/11 should be prosecuted. These liberal groups were especially appalled that Panetta had advised Obama against such an inquiry.

As the director of the CIA, Panetta knew this was a sensitive issue for his agency. Critics believe that the agency had lost its moral bearings after 9/11. In 2007, when a confidential Red Cross report became public, no doubt remained that the agency had subjected terror suspects to prolonged physical and psychological cruelty. Officers shackled prisoners for weeks in contorted positions; chained them to the ceiling, wearing only diapers; exploited their phobias; and propelled them headfirst into walls. At least three prisoners died.

There was more bad news for the agency when President Obama released disturbing classified government documents describing how one prisoner was waterboarded 183 times in a month. For more than a century, the United States had prosecuted waterboarding as a serious crime, and a 10-year prison sentence was issued as recently as 1983. Indeed, the memos authorizing interrogators to torment prisoners clashed so glaringly with international and U.S. law that some of them were later withdrawn by lawyers in Bush’s own Justice Department. Torture itself is a felony, sometimes even treated as a capital crime. The Convention Against Torture, which America ratified in 1994, requires a government to prosecute all acts of torture; failure to do so is considered a breach of international law.

Although Panetta might oppose an inquiry, that did not mean he took torture lightly. One of his first acts as director was to ask the CIA’s inspector general to ensure that there was no one on the payroll who should be prosecuted for torture or related crimes. The inspector general assured him that no officer still at the agency had engaged in any action that went beyond the legal boundaries as they were understood during the Bush years. Panetta’s position was therefore consistent with that of President Obama, who had promised immunity from prosecution to any CIA officer who relied on the advice of legal counsel during the Bush years. For the longer term, Panetta was trying to set up a state-of-the-art interrogation unit, staffed by some of the best CIA, FBI, and military officers in the country and drawing on the advice of social scientists, linguists, and other scholars.

Panetta wondered if he had done enough. Should he resist or welcome an investigation of the CIA by the Attorney General that might lead to prosecution? Or should he resist or welcome the creation of an independent “truth commission” that could grant immunity to witnesses? As he pondered the pros and cons of some sort of inquiry, it became increasingly apparent how unappetizing his choices were.

Here are some of the arguments against any investigation:

• If Panetta did not argue against investigation, he would not be      seen within the agency as someone      people want to follow.
• Prosecution would be unfair to CIA officers who thought they were      abiding by the law. People      shouldn’t be punished for doing      what they took to be their duty.
• An investigation might look vindictive, as if the Obama administration was trying to      go after Cheney and Bush. Such a perception could have a serious political      downside, namely, the risk of      losing support from independents.
• Prosecution of officials would have a chilling effect on future      U.S. government officials. Few would be brave or foolhardy enough to put      forward daring proposals that one day could be judged illegal. Putting      things down in writing is a useful intellectual exercise and central to      good decision making. With the      threat of prosecution, serious memos on controversial matters would      increasingly become the exception      rather than the rule. Bottom      line: U.S. national security would be weakened.
• Investigation and prosecution would take time and focus away from      what the CIA, the country, and its elected and      appointed representatives thought important. Investigations and trials      would constitute an enormous distraction at a time when the United States faced a daunting      array of international problems.
• Investigation would undoubtedly result in the release of more memos and photos highly unflattering      to America’s image abroad. Such releases could spark an anti-American      backlash among allies and provide a superb recruiting tool for terrorist organizations.
• It is impossible to specify clearly a firm chain of causation.      Certainly, a series of actions at the      highest levels of government set the      conditions for and allowed abuse and torture, but there is no proof that      higher policymakers intended severe abuses to occur. And what about top      officials who knew about the      interrogation program but had no operational control over it? As one      former CIA official said, “You can’t throw out the entire agency.”