- The Washington Times - Thursday, April 23, 2009

ANALYSIS/OPINION:

COMMENTARY:

By releasing Bush administration documents detailing the CIA’s use of torture or so-called enhanced interrogation techniques (waterboarding, sleep deprivation, confinement boxes, etc.) on captured al Qaeda operatives, President Obama made good on his campaign pledge to increase transparency in Washington.

But the president tripped up over what to do about these past practices. He quickly ruled out prosecuting CIA interrogators who had followed the advice offered by lawyers in the Bush Justice Department, and liberals in and out of the blogosphere howled in protest.

But after White House Chief of Staff Rahm Emanuel on Sunday noted this immunity also applied to Bush lawyers and policymakers, Mr. Obama on Tuesday indicated it was up to Attorney General Eric H. Holder Jr. to decide whether “those who formulated those legal decisions” would face criminal investigation and possible prosecution. That is, there might be prosecutions.

Immediately, White House reporters were bombarding press secretary Robert Gibbs with questions about Mr. Obama’s apparent change in position. Had he caved to left-of-center pressure? Mr. Gibbs refused to acknowledge any shift. It’s certainly unlikely Mr. Obama altered course due to complaints from MoveOn or Sen. Russ Feingold, Wisconsin Democrat. But it did look messy. What had been a bold action of open government became a political problem.

Compare that to how Leon E. Panetta, the new CIA director, handled the episode. He played it like a political pro and showed he knows the game of Washington.

If anyone could have been expected to champion the release of these Bush administration legal memos, it would have been Mr. Panetta. Last year, writing in the Washington Monthly, he denounced the use of torture. He noted that waterboarding was an offense against the rule of law: “We either believe in the dignity of the individual, the rule of law, and the prohibition of cruel and unusual punishment, or we don’t. There is no middle ground.”

During the Clinton years, when he was budget director, Mr. Panetta had backed cuts in the intelligence budget. Years earlier, as a House member, he had voted for a measure that would bolster congressional oversight of the CIA. It doesn’t take much imagination to envision Mr. Panetta supporting the disclosure of these sorts of records.

But he didn’t. As CIA director, he urged the documents either be withheld or released in heavily redacted form. (The memos came out with relatively few excisions.) There’s no big mystery why Mr. Panetta took this position.

As chief of the spy agency, he adopted the position of his institution. CIA people generally don’t like to see any of their secrets tossed to the public. And many of the CIA officials and case officers who were involved with these controversial interrogations are still with the agency - including Stephen Kappes, who is now Mr. Panetta’s top deputy at the CIA. Mr. Panetta obviously didn’t want to tick off the people upon whom he has to depend.

There’s always lots of talk in Washington about morale at the CIA. Apparently, it can get rather low rather easily - at the drop of a congressional investigation, say. (Are the spies that sensitive?) So Mr. Panetta was clearly bucking up his troops.

For the record, though, the day after the Obama administration released the memos, the president headed to Langley, Va., to address CIA employees and was greeted with a standing ovation. (Was that a sign of how much some CIA people had disliked the Bush-Cheney White House?)

Besides taking the opportunity to display his newly developed loyalty to the agency, Mr. Panetta probably had another concern. His predecessor at the CIA, Michael Hayden, had claimed that disclosing these interrogation details would be damaging to the nation’s security. This debate - along with the question of the efficacy of waterboarding - has been argued passionately on both sides. (The newly released memos contain contradicting indications of whether these techniques do work and to what extent.)

But no doubt Mr. Panetta, who has never held a post in the intelligence community, did not want to begin his tenure as CIA chief by entering into a very public dispute with the last CIA director (as well as several other past CIA chiefs) on what is best for national security.

In the end, Mr. Panetta was able to get the best of both worlds. He could assume that the memos would be made public. The Justice Department was the lead agency in this decision; its top officials, many of whom had spent the previous years challenging various Bush administration legal opinions, had no interest in protecting the Bush Justice Department. And the White House favored as-full-as-possible disclosure. So Mr. Panetta could oppose the release of the documents, realizing that his stance would not make much difference but would win him points with the people he now has to manage.

In bureaucracies, institutional interests do matter, and Mr. Panetta was not necessarily taking a dive by stating the presumed preference of the institution he leads. He was being a savvy operator. That is probably what you want in a spy chief.

David Corn is the Washington bureau chief of Mother Jones magazine and a blogger for CQPolitics.com.

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