Wounds that a letter and a visit cannot repair

Yesterday, I posted the text of a letter from Dennis Blair to members of the “intelligence community.” The letter is an extraordinary document. Indeed, the very fact that it was written is extraordinary.

Blair cites two developments that prompted his letter: (1) President Obama’s decision to release Justice Department documents that “spell[] out in detail harsh interrogation techniques used by CIA officers on suspected al Qaida terrorists” and (2) an article in the New York Times about surveillance by the National Security Agency. The letter purports to be an effort to prevent these developments from further demoralizing the intelligence community.

Blair gives President Obama a little cover. He politely declines to mention that it was the president’s decision to release the Justice Department memos, choosing instead to speak in the passive voice of “the release of documents.” And he pretends that a story in the New York Times about NSA surveillance (what else is new) stands on equal footing with Obama’s decision as a source of distress and demoralization in the intelligence community. No one worthy of membership in that community is likely to be deceived.

In any event, Blair is quite clear about the problem of demoralization, going so far as to compare the status of intelligence community members to that of military personnel returning from Vietnam in the early 1970s.

What does Blair offer to alleviate their situation? Not much beyond his own kind words and his assurance that the president supports them. Obama himself saw the need to travel Langley to provide the same assurance.

But Blair understands that general assurances ring hollow, especially with the threat of criminal prosecutions hanging over members of the intelligence community. So Blair says he “will absolutely defend those who carried out the interrogations within the orders they were given.” But he can provide no assurance that they won’t be prosecuted. Rather, he implicitly acknowledges that these individuals may be in jeopardy; if they weren’t there would be no need to defend them.

But what will be the defense? Blair acknowledges that the legal memoranda Obama released were written in response to requests by CIA personnel to use harsh interrogation techniques instead of being limited to traditional ones that weren’t working. Who is more culpable — the intelligence officer who asked for permission to engage in enhanced interrogation tactics or the lawyer who, without saying whether the techniques should be used, provided a legal opinion that they lawfully could be?

The question should answer itself. In any case, whatever merit the “I was just following orders” defense has as a general matter disappears when the defendant requested the “orders” he was following.

I suspect there will be no criminal prosecutions of intelligence community members. But the fact that folks reasonably fear this prospect means that damage has been done. Looking ahead, it’s difficult to imagine intelligence officers requesting permission to do anything other than following rigid pre-existing written rules in their efforts to obtain vital intelligence. If an officer runs into a stone wall, as apparently occurred with key terrorists after 9/11, he likely will select one of two options: give up or act without permission.

Most will simply give up because the alternatives are too risky. If they seek permission and it is granted, they may be prosecuted if the successors of the officials who grant permission decide that it should have been withheld. If they act without permission, they may very well be prosecuted if their actions are discovered.

The resulting inaction may well leave on the table intelligence that would lawfully have been obtained had the intelligence officer been willing to ask for permission to depart from “the book.”

Some intelligence officers, no doubt, are so committed to gaining valuable information with which to protect the country that will not give up. But rather than seek permission from lawyers cowed by the prospect of being prosecuted if they are “wrong,” they are likely to act without asking or telling. This too is not a desirable course because it leaves the lone agent unchecked.

Obama’s antics — the release of the memos, the conflicting signals regarding prosecutions, etc — have demoralized the intelligence community and, in all likelihood, have irreparably harmed its ability to gather intelligence with which to protect our country. I’d like to be able to report that at least Obama’s left-wing constituents are happy. But apparently they are not, merely wounding our intelligence services being insufficient.

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