Two days ago, I wrote about why we have to see the investigation through on the use of torture by the CIA and prosecute those responsible, all the way up to the top of the Bush Administration. Yesterday, I followed up on a civil rights case against the Montgomery County Sheriff's Department.
Those two stores have a connection.
When the state and its employees violate your civil rights, you can sue both the government body and the individuals who violated your rights. The individuals, be they cops, drug agents or school administrators, are partially protected by a doctrine known as "qualified immunity". To boil that down (and probably oversimplify it), that means that individuals, who are acting for the state, are immune from civil liability so long as a reasonable person in their position would not have understood that their actions were not legal. Put it another way, if they reasonably believed that what they were doing was legal, they don't have to pay you.[1]
Police have been operating under the civil doctrine of qualified immunity for a long time. If what they do is wrong, they can be sued. That is what the Mayor of Berwyn Heights, MD is doing. That's why the City of Los Angeles had to cough up over $100 million after the Rampart Scandal broke.
If what they do is really wrong, they also have criminal liability and they can go to jail.
Last year, there were just over one million police officers in this country. Every one of them can be held liable for their actions. Every one of them should know that, yet they go out and do their jobs. The vast majority of them do fine work. Some of them bring dishonor to their badge.[2]
So why does the CIA get to operate in a realm of "we can break the law, we can torture and murder you if we want to and there is nothing you can do about it, neener, neener, neener"?[3] I find it very hard to believe that any reasonable person would have understood that beating someone to a pulp was a legal method of interrogation. I find it impossible to believe that any reasonable person would have understood that it is permissible to use such brutal methods of interrogation that the prisoner died.
What happened, of course, is that we had an administration which had no clue as to how to interrogate people, other than that which they gleaned from bad spy thrillers. We had an administration which believed, as did Richard Nixon, that whatever they did was legal and that attitude percolated down to the interrogators in the CIA.[4] We had an administration which employed lawyers who knew or had reason to know that torture was illegal and they smarmed and weaseled and connived to produce legal opinions that "black" was "white", "up" was "down", "2+2=5" and "torture" was "enhanced interrogation".
The CIA appeared to not have the institutional memory of the FBI. The FBI knew full well that stepping outside of the bounds of the law, now, even if the politicians now seemed to support it, would come back to haunt them, and they largely refused to do it.[5] The CIA was not that smart and that is a piss-poor reason to not hold them accountable, even though seven former CIA directors would have you believe that the CIA should not be held accountable for acts of torture and murder.
Attorney General Holder is doing the right thing in dragging this whole sorry mess out into the open for a proper investigation. The President did the right thing in not trying to stop him.
The Rule of Law must prevail if our status as a free nation is to mean anything at all.
[1] That doesn't mean the state is off the hook, the actions of the state's agents may still be found to have been outside the law and then the state has to pay you.
[2] Unfortunately, most of them are protected by their fellow cops. Perjury and evidence-planting are not unheard of in order to accomplish this.
[3] Whatever happened to "if you are caught, we will deny any knowledge of your actions"?
[4] The FBI knew better, which is why their agents refused to participate in Dick Cheney's Wide World of Torture.
[5] The FBI's abuse of Natural Security Letters as a substitute for search warrants is a topic for another time.
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3 comments:
It is rather astonishing that the CIA appears to have remembered everything about, and learned nothing from, the Church Committee.
Some balance was always going to return to Americans' perception of the terrorist threat. For a fine example of the conventional wisdom one need only sift through Andrew Sullivan's blog posts for the eight years or so: from more-or-less normal to batshit crazy and then, ever so slowly, back to sane again. As you point out, if they had any kind of institutional memory the bureaucrats would have predicted this.
Why didn't they? The "appeal to authority" argument always presumes that there are wiser and more knowledgeable heads than our in government. They not only couldn't assess Saddam's nuclear program, apparently, but they were ignorant of some basic facts about political science and mob psychology.
We need this precisely because it WILL affect morale and future intelligence gathering. If the CIA learned nothing from the last time they were brought to heel in a public and messy forum then obviously we are going to have to do it again. And if the lesson still hasn't taken? Then we do it again.
James has it exactly right. The CIA should have known what the possible consequences were, and acted accordingly. If they'd done what professionals (the FBI, for instance) would have, there probably wouldn't have been torture, and we might conceivably have avoided the Iraq War.
The consequences of the crimes they committed rise above even the damage they've done to the individuals involved. Bad intelligence, and the distorted view of the world it can bring, can kill.
James, yes. I have been astonished for the last few years that the CIA has forgotten all about the Church Committee.
This has to be done and better we do it now, than 20 years later (as the Germans did) or never (like the Japanese).
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