Spencer has some thoughts:
And here’s how it’s problematic for Obama, Blair and Panetta to indicate to the CIA that they’ll stand by CIA officers who relied on OLC guidance for the torture. Marc Ambinder observes that there’s some wiggle room in that promise, although every indication from the administration is that it doesn’t want to prosecute CIA officials. And for the most part, I think that’s right. The CIA officer assigned to an interrogation is no more responsible for the regimen of torture that he is asked to inflict — and told all the while is legal — than the soldier in Baghdad is responsible for the invasion of Iraq.
But that doesn’t go far enough.
Most of this story — the torture techniques (except for the insects); the OLC blessings and reblessings — has been thoroughly reported already. What the memos leave unclear is how much the CIA jumped into the torture game and how much the Bush administration pushed it. The memos are written to be responsive to the CIA lawyer — the malefactor going to the priest to give his work absolution. They’re written to guide the interrogators. But they leave unclear — as does most of the narrative so far — who’s compelling Rizzo in the CIA counsel’s office to keep pushing for more. The senior leadership of the agency? The heads of its directorate of operations, which overseas the interrogators? The Counterterrorist Center leaders? Without this information, we don’t have a clear sense of moral culpability for the torture. And then we’ll need to know what kind of pressure they were under from the Bush administration. Who was pressured? Who was eager to comply? Who resisted? Who pressed his or her colleagues into acquiescence or insubordination? All of these questions are related but separate to the question of legal culpability.
And we fail to find most of that out in the absence of an investigation. I’m guessing that the administration believes that the practical downside is this; if CIA officials are ever prosecuted or investigated too deeply, then the Agency ceases to exist as a useful intelligence organization. Even if people within the CIA pushed for harsher techniques, prosecution and investigation after the DOJ granted legal authority for those techniques would have a chilling effect on future operations of all kinds. The first objection to this would run something like “then don’t do anything that might be illegal,” but that has obvious limitations for an intelligence organization, especially when the definition of legality changes every four years or so.
… I should make clear that I don’t agree with Spencer’s comparison between CIA interrogators and US soldiers in Iraq; the former have much wider latitude to refuse requests from superiors, and the morality of their actions is in much greater question (which is to say, really, not in any question at all). I do agree, however, that there is some question as to whether the interrogators can be held legally responsible. For those without legal training (and even many with) the legality of particular methods is not obvious, which is why we have a DOJ that is supposed to render legitimate opinions regarding the legitimacy of certain methods. This is to say that while it’s obvious to me that locking someone in a room with a stinging insect is horrible, it’s not obvious to me that it’s illegal to do so under certain conditions; I’d have to ask someone who was trained in the legal limits of interrogation. I would certainly be surprised to find out that it’s legal, but that’s not the same thing as knowing that it’s illegal.
…Glenn makes a compelling case for the opposite argument. To the extent that I have a rejoinder, it would be that “whether prosecution would produce good or bad outcomes” is always something that has formed part of a prosecutors discretion as to whether proceedings should initiate against any particular individual, and that further the extent to which the memos make successful prosecution unlikely (and I’m uncertain on this point) play a role in the “good or bad outcomes” question.