CIA interrogators fear prosecution

They made the mistake of trusting politicians.

For six years, Central Intelligence Agency officers have worried that someday the tide of post-Sept. 11 opinion would turn, and their harsh treatment of prisoners from Al Qaeda would be subjected to hostile scrutiny and possible criminal prosecution.

Now that day may have arrived, after years of shifting legal advice, searing criticism from rights groups — and no new terrorist attacks on American soil.

The Justice Department, which in 2002 gave the C.I.A. legal approval for waterboarding and other tough interrogation methods, is reviewing whether agency officials broke the law by destroying videotapes of those very methods.

The Congressional intelligence committees, whose leaders in 2002 gave at least tacit approval for the tough tactics, have voted in conference to ban all coercive techniques, and they have announced investigations of the destruction of the videotapes and the methods they documented.

“Exactly what they feared is what’s happening,” Jack Goldsmith, the former head of the Office of Legal Counsel at the Justice Department, said of the C.I.A. officials he advised in that job. “The winds change, and the recriminations begin.”

That’s exactly right, and why I’ve opposed John McCain’s approach to this issue for two years. McCain’s approach, by his own reckoning, would absolve politicians while leaving the interrogators in potential legal jeopardy for the rest of their lives. That’s appalling. A more sensible approach would be to first recognize that torture is illegal, but then leave in the possibility of using waterboarding and similarly mild but proven effective techniques when high value enemy targets are captured. As I’ve argued before, high value al Qaeda terrorists are in and of themselves ticking time bombs, and they are also trained to resist ordinary interrogation techniques. If waterboarding is used on them, that ought to be broached before the president and at least two members of Congress from both parties first. We’re a democratic republic, and should be able to hold our politicians accountable for the decisions made in their name. The present situation leaves the officers who are directly involved exposed while the politicians get to hide, and that’s unfair. But that’s also how it was designed.