Torture And A Truth Commission

Is the subtext of the growing row between Dianne Feinstein, Jay Rockefeller and the Obama administration over Leon Panetta is about retroactive oversight and accountability? Clearly, Congress failed to properly oversee the intelligence agencies during the presidency of George W. Bush. But because so much information remains classified, no one really knows what the administration told Congress, and when. Jane Mayer's reporting makes it clear that the White House chose to withhold crucial details about critical problems from lawmakers, but a growing mass of evidence suggests that the intelligence oversight panels were cowed by the President at crucial junctures, intimidated by the exigencies of politics and war.  And they knew. They knew that Abu Zubaida was subject to enhanced interrogation methods; that extraordinary renditions were frequently assigned; that the administration had vastly expanded the NSA's collection of metadata inside the United States.

Only in retrospect, only in a different political context, did it become unfashionable to support aggressive line-crossing. And yet while it's facile to say that Feinstein and Rockefeller worry about their hides and their oversight capabilities; it is also true that one can make a reasoned case that an overreaction by civil libertarians in the new administration would neuter intelligence gathering. Maybe it won't; soft power and smart power aren't incompatible with traditional methods of intelligence collection.  But it would be foolish not to have such a debate.  Opposing torture may be a black and white issue, but almost everything else the CIA does requires deliberation and thought. James Olson, the former counterintelligence chief of the CIA and a longtime case officer, wrote a remarkable book last year called Fair Play. It took a while to clear the CIA's publication review board because each chapter delves into the controversy over different methods the CIA clearly uses to recruit human sources: gay blackmail, kidnapping, using journalists, posing as humanitarian workers, offering sources prostitutes in exchange for information, lying, stealing, feeding drug habits of agents -- you get the idea.
When President Bush and Vice President Cheney leave office on January 20th, watch for a clutter of currently-serving and former covert intelligence operatives find the nearest journalist they can trust and download their experiences. Some of what the folks disclose will strike Justice Department attorneys as illegal. Prosecutions may be initiated. Now, Obama has been silent on the possibility of prosecuting CIA officers or Bush administration officials for their past illegalities. My guess is that he personally opposes them.  But perhaps he recognizes the need for some sort of public accounting.  Notice that he has appointed to
 senior national security positions several sharp critics of that approach, including Dawn Johnsen, who advocates an over source approach to healing, and for whom the Office of Legal Counsel is jurisdictionally a check on the power of the executive: "Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure."  Notice here that Johnsen is not advocating criminal prosecution, which would necessarily limit disclosure.

No, she is very clearly in favor, or was in favor, when she wrote those sentences, of a truth commission. For a truth commission to fulfill its mission, commissioners would have to be empowered to look at every special program, every budget line item, every file -- and then decide, on its own, how to balance national security and disclosure. For those who believe that, a truth commission would be more disruptive to the status quo and more cleansing to the moral palette than selective, patchwork prosecutions. As in the aftermath of the Church Committee investigation in the 1970s, the intelligence community would give up its crown jewels and be redrawn.

Obama might not be able to stop Justice from prosecuting CIA officers. If investigations are initiated, the White House can't very well intervene to stop them. It is tempting to think that Obama is granting himself plausible deniability here; the White House can express its opposition to prosecution but say that the U.S. Attorneys' independence is a cornerstone of our legal system, and nothing can be done.