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Editor’s Note: The Washington Post is at it again, acting as apologist for the neoconservative view that whatever the Bush administration did to prosecute the “war on terror” was justifiable, from aggressive warfare to criminal torture.

In this guest essay, former CIA analyst Melvin A. Goodman takes a measure of the Post’s latest efforts:

The Washington Post continues to campaign against any accountability for the detentions policies of the Central Intelligence Agency, using its own editorials and op-ed writers as well as outsiders who support the efforts of the newspaper.

On Tuesday, one day after the release of the 2004 CIA inspector general report that documented the use of torture and abuse, a Post editorial actually claimed that “it’s impossible to say, on the basis of information made public so far, whether prosecution is warranted” and that, since the Bush Justice Department already declined prosecution, it would be “unsettling” to pursue even those CIA operatives who used “unauthorized, improvised, inhumane and undocumented” techniques.

The Post is willing to exonerate these operatives because they were “clamoring” constantly for guidance about what they should and should not do; in fact, CIA Director George Tenet and Deputy Director John McLaughlin were more interested in protection than guidance.

On Monday, the newspaper went judge-shopping in the courthouse of public opinion and published an op-ed by Jeffrey H. Smith, who is a well-known lawyer with Arnold & Porter, one of Washington’s most prestigious law firms, and the CIA general counsel from 1995-1996.

Smith created the most fatuous argument of all for not prosecuting the interrogators and apparently has no understanding of the Nuremberg Laws, which declared that following orders was no defense and that crimes committed by individuals for state purposes were the responsibility of individuals and were punishable under law.

Smith concedes that “we lost our bearings” after the 9/11 attacks and “squandered our credibility,” but fails to acknowledge the sordid and sadistic activities that the nation sponsored and the CIA implemented. His six reasons range from the disingenuous to the downright unconscionable.

Reason #1: The CIA techniques were authorized by the President, approved by the Justice Department, and briefed to the proper congressional committees.  Since the techniques were “legal,” it will be “very difficult” to pursue prosecutions.

The fact is we simply don’t know if all techniques were actually authorized, which is a major reason for an investigation, and the Justice Department is emphasizing those techniques that went beyond authorization.

The level of difficulty of the prosecution is not a reason to stand down in this case, particularly since U.S. laws and constitutional amendments were broken. The fact that high-level CIA officials destroyed the torture tapes suggests that there were actions that went beyond the Bush administration’s mandate and that sordid and sadistic acts were committed.

Reason #2:  Since the CIA provided its 2004 report to the Justice Department and the department refused to prosecute any CIA officers, it would set a “dangerous precedent” to use criminal law “to settle policy differences at the expense of career officers.”

This, of course, is arrant nonsense! Bush’s Justice Department was a politicized government agency that has come under intense scrutiny because of its handling of the firing of U.S. Attorneys as well as issues related to interrogation policy.

The decisions on the 2004 report were made by prosecutors and lawyers who reported to a politically-appointed assistant in the Attorney General’s office.  John Ashcroft was the Attorney General and he lied to congressional committees.

Reason #3: After Bush’s Justice Department declined to prosecute, the CIA took administrative action, including disciplinary action against those officers whose conduct it deemed warranted such responses.

This is a misinformed statement or an outright lie! No high-level Agency official has suffered as a result of the conduct of torture and abuse, which conforms to previous CIA misdeeds. 

High-level officials who politicized intelligence for Deputy Director Robert Gates in the 1980s did not suffer; officials who crafted Secretary of State Colin Powell’s phony speech to the UN prior to the Iraq War did not suffer; analysts who lied about Iraqi weapons of mass destruction did not suffer. In fact, the record clearly states that guilty parties in all of these affairs saw their careers prosper.

Reason #4: “Prosecuting CIA officers risks chilling current intelligence operations. Such prosecutions are likely to create cynicism in the clandestine service, which is deeply corrosive to any professional service.”

This is Smith’s most fatuous argument and the one that CIA Director Leon Panetta is peddling to Congress and the American people. The fact is that the failure to hold wrongdoers accountable is corrosive to morale and that CIA directors Tenet and Goss had to resort to independent contractors because so many professional Agency officers refused to take part in illegal activities.

IG John Helgerson commissioned the 2004 study because so many Agency officers “expressed to me personally their feelings that what the Agency was doing was fundamentally inconsistent with long-established US Government policy and with American values, and was based on strained legal reasoning.”

Reason #5: Prosecutions could deter cooperation with other nations.
Smith could not be more wrong! It was the CIA’s policies of secret prisons, erroneous renditions, and torture and abuse that corroded the liaison efforts of the Western intelligence network, which is the key to a successful campaign against international terrorism. 

European agencies became reticent to share intelligence with the United States because they were opposed to CIA’s abusive practices. The evidence is ample here and presumably even Smith must know this.

Reason #6: President Obama does not want to be distracted by looking backward and coping with congressional investigations and grand jury subpoenas.

We as a nation must know the full extent of the Bush administration’s misuse of government agencies and government personnel. We need to know what happened in order to make sure that this kind of activity can never happen again.

Smith’s exculpatory brief on the behalf of his putative clients, the Washington Post and the CIA, is particularly disgraceful in view of the unconscionable activities that have taken place over the past decade. 

In order to restore the credibility of our intelligence services, permit foreign intelligence agencies to cooperate with us, and reverse the damage that has been done to U.S. foreign and national security, we must know the full extent of the role of the Central Intelligence Agency.

Melvin A. Goodman, a senior fellow at the Center for International Policy and adjunct professor of government at Johns Hopkins University, spent 42 years with the CIA, the National War College, and the U.S. Army. His latest book is Failure of Intelligence: The Decline and Fall of the CIA. [This story originally appeared at The Public Record.]

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