The CIA is Officially Above the Law

In today’s Washington Post, CIA Director Leon Panetta essentially immunizes the CIA from compliance with the law. The “it’s time to move on” argument, favoring practicality over principle, places political expediency above the rule of law and ultimately sets a standard for future agency impunity.

According to Panetta we “must find a balance between appropriate oversight and a recognition that the security of the United States depends on a CIA that is totally focused on the job of defending America” (emphasis added). Normally that balance would be found in the application of the rule of law, but if Panetta has already liberated the CIA from having to concern itself with or be confined by the law, then what are we left with to balance?

We are supposed to believe that that balance is to be found in the political process, and because the “last election made clear that the public wanted to move in a new direction”, we have thus moved on. Under a new president, the “CIA no longer operates black sites and no longer employs ‘enhanced’ interrogation techniques.” This all comes from an administration whose transparency policy demands the total secrecy and immunity for all past and ongoing activities relating to intelligence gathering and national defense. Yesterday, there were mass public demonstrations in Kuala Lumpur against the Malaysian government’s decade old law permitting detention without trial. Meanwhile, the Obama White House continues to back indefinite detention without trial for anyone who it believes may pose a national security threat, not just those enemy combatants we cannot try in court because the Bush Administration screwed up. Because no one is protesting in the streets, does that mean we’ve moved on?

Then there is the president’s additional “I am going to need you more than ever” argument. In other words, we should not investigate credible claims of crimes because doing so may hurt agency morale. The military regularly investigates its soldiers and officers, so why can’t the CIA? Imagine applying this unique “agency morale” standard to the military, police, government, schools or other institutions; for example not investigating claims of sexual abuse by teachers because doing so may hurt teacher morale? Or by priests because it may damage the reputation of the Church?

In this vein, Panetta does not want the application of the law to the CIA to “taint those public servants who did their duty pursuant to the legal guidance provided.” But that does not mean that we exculpate the Bush Cheney White House who searched for lone, middle level attorneys to rubber stamp, in bad faith, what was clearly contrary to well settled law. There is no reason why, as Panetta fears, that we must follow the age old Washington tradition and scapegoat the “Bad Apples” as the Defense Department did with Abu Ghraib.

Of course, Panetta fails to mention that by refusing to investigate claims of torture, the U.S. is violating International Law and its treaty obligations, and is therefore potentially subjecting CIA operatives and officials to criminal prosecution abroad, restricting their international travel and inevitably tainting their reputations.

Finally, the ultimate problem with this Reconciliation Without the Truth or the Commission approach to the rule of law is that it creates a standard whereby it is almost impossible to foresee a scenario in which the CIA would ever be subject to the law. So, Mr. Panetta, what can the CIA not get away with?

It’s not about the past, it’s about the future.