With AG Holder's announcement of an investigation into CIA interrogation conduct, we get an array of protest. Most of it falls into either (1) such an investigation is an improper political review of a prior administration's policies, or (2) such an investigation will cause the CIA not to do its job properly in the future because employees will be afraid of after the fact prosecutions. (Not so much protest along the lines of 'no point to investigating what was legally permissible' which is a bit of surprise to me. Maybe I missed it.) The two general lines of argument are remarkably silly for all the play they get.
I don't see why CIA agent, who are supposed to tough people risking the health and lives for the good of the country, patriots of the old school who will defend the nation with their lives, are afraid of testifying in front of Congress or the remote possibility of prosecution for crimes. How hard are these guys, if that is what scares them? Most high school football players take bigger risks for a much smaller purpose. And what is the fear? That like the rest of us, they may get prosecuted for committing crimes? This is a peculiar piece of argument. Soldiers get prosecuted for committing crimes. Even those brave boys of high finance sometimes get prosecuted for committing crimes. I don't see why CIA folk can't do their jobs perfectly well while living with the risk that if they commit crimes on the job they will be prosecuted. The prosecution of Mr. Foggo should not cause the collapse of the CIA. (How he got to the top of that organization remains a mystery to me -- but then I knew him long ago.) The conduct alleged has been illegal for a pretty long time. I assume they all or mostly managed high school and college, and so are generally familiar with the idea that one of the things that made Nazis and Communists evil was the use of torture.
The complaint that an investigation may criminalize policy differences is at least as odd. Change sin enforcement policies happen all the time. The economy has not come to a halt because of changes in tax enforcement or securities enforcement policies. This is not enactment of an ex post facto criminal law, and reading existing statutes differently is not new. Sometimes the change make more things legal than in the past and sometimes the other way around.
The argument should be that the alleged conduct at issue is not illegal. I suppose one could argue that the law does not apply to the CIA. It is a poor line of argument. It is stupendously shortsighted. And it has no legal foundation, at least as far as I can tell.
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