Power and Constraint — the sustained persecution of CIA agents who protected America

The Obama administration is attempting to throw U.S. intelligence under the bus, blaming it for the White House’s patently false claims about the attack in Benghazi. Our intelligence officials surely are used to this kind of treatment by now, but this doesn’t make the latest instance any more palatable.

In my view, the most deplorable example of throwing intelligence personnel under the bus was the sustained mistreatment of the heroes who interrogated terrorists in the aftermath of 9/11. In Power and Constraint, Jack Goldsmith chronicles this shameful history.

Here is my discussion of this portion of Goldsmith’s book in the review I wrote for the Federalist Society’s magazine, Engage:

Perhaps the saddest part of Goldsmith’s story is the persecution of CIA agents. In a time of crisis, CIA agents obtained valuable information from terrorist detainees. That information led to the capture or killing of terrorists bent on attacking the U.S. It may well have prevented attacks.

The techniques used by the CIA agents were approved in advance by the Department of Justice. As Goldsmith puts it, “[t]he CIA sought all of the right assurances up front for its detention and interrogation mission; it dutifully reported its subsequent mistakes; and it cooperated with the many resulting investigations.”

None of this mattered much. Sweeping initial internal investigations caused approximately twenty cases to be referred to the Justice Department for potential criminal prosecution. Only one resulted in prosecution, but the others were referred back to the CIA, which then considered whether to punish the agents. Some agents were cleared, some were punished, and some quit.

Then, Attorney General Holder ordered the reopening of cases that the Justice Department had already deemed unworthy of prosecution. Thus, agents who had been told the matter was finally behind them once again had to lawyer up, refresh their memories, and face a grand jury. Most agents eventually were cleared again, but the process demoralized the CIA.

Goldsmith believes that these experiences will make the CIA far more cautious and less inclined to take the initiative the next time the threat environment becomes severe. This ethos, he assures the human-rights lobby, provides a safeguard against future abuse. But Goldsmith can provide no assurances to those who fear that, due to caution and risk aversion, the CIA will be less effective in combating terrorism the next time around.

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