Not quite all of them — two cases involving the actual death of a detainee will still be pursued, which is as it should be — but more than 100 involving less significant incidents will be cashiered. This probe was one of the last vestiges of the original Obama counterterror agenda. He banned enhanced interrogation and gave the order to close Gitmo on day two of his administration; a few weeks later, he opened the door to prosecuting Bush-era CIA interrogators. Fast-forward two years and not only is Gitmo still open, he’s now the guy who sent SEALs to shoot Bin Laden in the face, who’s pounded jihadis with drone strikes in Pakistan, Afghanistan, and Yemen, who’s marked Anwar al-Awlaki, a U.S. citizen, for death, and who’s running a war in Libya that’s not only unauthorized by Congress but illegal according to Pentagon lawyers and his own OLC chief. Under those circumstances, how absurd would it have been for Eric Holder to start dragging CIA agents into court over waterboarding, let alone lesser coercive techniques like belly slaps or stress positions? It would have angered hawks by punishing guys who were acting zealously to prevent further attacks, and it would have angered doves who’d be forced to revisit O’s own Bush-on-steroids counterterror record. So, bye-bye prosecutions.
I wonder, was this a going-away present for Panetta or a “clean slate” housewarming present for Petraeus, who was approved today by the Senate as the new DCIA, 94-0?
In a statement to CIA employees on his last day as director, Leon E. Panetta said Thursday that after an examination of more than 100 instances in which the agency allegedly had contact with terrorism detainees, Assistant U.S. Atty. John Durham decided that further investigation was warranted in just two cases. Each of those cases resulted in a death…
Atty. Gen. Eric H. Holder Jr., who announced the CIA investigations in August 2009, followed Panetta’s announcement with a statement that confirmed the decision but did not explain it. Beyond the two detainee deaths, “the department has determined that an expanded criminal investigation of the remaining matters is not warranted,” Holder said.
The announcements mean that no CIA officer will face prosecution in connection with interrogations that the agency’s inspector general and a Justice Department official under former President George W. Bush concluded had exceeded what lawyers had authorized.
Petraeus nudged the White House about this during his congressional testimony last week:
During his confirmation hearing to lead the CIA, Petraeus said “it is time to take the rearview mirrors off the bus with respect to certain actions out there.” Petraeus did not specifically mention Durham’s investigation, but he referred to CIA practices conducted in the aftermath of the September 11, 2001, terrorist attacks.
“We do not any longer truly, I think, appreciate the context of the post-9/11 period and some actions that were taking place under direction,” Petraeus told the Senate Intelligence Committee. “And I, for one, again, as the potential leader of the agency, would like to see us focus forward and indeed put some of these actions behind us once and for all and put our workforce at rest with respect to that.”
Serious question, just to round off the thought I began up above: Does anyone think at this point that Obama would force the CIA to abide by his original order banning EIT if they had a jihadi in custody whom they sincerely believed had info about a plot in motion? The reflexive conservative response to that will be, “Of course! He’s soft!” But he’s really not when it comes to counterterror. I think The One made a decision early on, after those initial gestures to his base, that under no circumstances would he let the war on terror become a major liability against him. Maybe his early battles with Cheney wised him up on that, or maybe he came around to it of his own accord. Either way, given that one of the reasons he’s been so drone-happy is because he wants to avoid capturing jihadis and dealing with the interrogation/imprisonment questions, it’s almost unfathomable that he’d suddenly become a stickler for hands-off interrogation if the CIA desperately needed info to stop an attack.
Intel officials of various stripes have been pressuring Holder to drop these investigations for ages (remember the letter sent to him two years ago by seven former CIA chiefs?), but this is almost certainly Panetta’s victory. In August 2009, rumor had it that not only had he gotten in a screaming match with a White House official about the would-be prosecutions, he was thinking of quitting over it. Today, on his last day as DCIA, almost all prosecutions have been formally dropped. He got Bin Laden, he oversaw a very effective drone program, he kept the Agency relatively leak-free, and now he parted ways with a big win for their personnel. Has any Obama appointee performed above expectations to the extent he has?
Update (Ed): Just to answer Allahpundit’s question, I was very skeptical about the idea of appointing Panetta as CIA chief. I’ll admit to being wrong on that call. There may have been better choices, but Panetta has had a very successful run as DCIA.