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Indications of changing perceptions over the "War on Terror"?

Indications of changing perceptions over the "War on Terror"?

Dec-13-07 10:01 am

Does the recent controversy over the destruction of the CIA interrogation tapes signal a broader, long-term shift in the tactics and approach of the government's strategy towards combating terrorism? With CIA officials coming under greater scrutiny in Congress and the Justice Department, the variation over the past few years of the perceived efficacy and ethicality of techniques such as waterboarding may point to shifts in the overall counterterrorism strategy and the process of this strategy-formation. Today's New York Times reports that such shifting attitudes within the legislative and judicial branches presents a legal dilemma to intelligence officials acting on the behalf of the administration and its counterterrorism strategy:

For six years, Central Intelligence Agency officers have worried that someday the tide of post-Sept. 11 opinion would turn, and their harsh treatment of prisoners from Al Qaeda would be subjected to hostile scrutiny and possible criminal prosecution.

Now that day may have arrived, after years of shifting legal advice, searing criticism from rights groups — and no new terrorist attacks on American soil.

The Justice Department, which in 2002 gave the C.I.A. legal approval for waterboarding and other tough interrogation methods, is reviewing whether agency officials broke the law by destroying videotapes of those very methods.

The Congressional intelligence committees, whose leaders in 2002 gave at least tacit approval for the tough tactics, have voted in conference to ban all coercive techniques, and they have announced investigations of the destruction of the videotapes and the methods they documented.

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Legal hazards were on the minds of Bush administration officials from the beginning of the response to 9/11. The 2002 Justice Department interrogation opinion laid out some defenses interrogators might use against criminal accusations of torture.

“The administration’s success in preventing attacks has become its enemy,” said John Yoo, the former Justice official who wrote most of the 2002 opinion. Since then, he added, “The political environment has changed because people feel the threat is less than it used to be.”

Mr. Yoo’s legal opinions, though criticized as seriously flawed by some scholars, may nonetheless provide impenetrable armor for C.I.A. officers. From the beginning, wary agency officials insisted on what they called “top cover” — written Justice Department approval for what they did.

Most legal scholars say that even under a future administration, the Justice Department would not seek charges against C.I.A. officers for actions the department itself had approved.

Another obstacle to such prosecutions would be the laws passed by Congress in 2005 and 2006 granting extensive legal protection for authorized conduct. But the videotape destruction may not have such protection; the episode recalls the adage of Washington scandals — that it’s not the crime, it’s the cover-up that leads to trouble.

While the debate over the counterterrorism strategy widens within the beltway, what remains yet to be seen is whether it will extend into a more national dialogue as more advocacy groups become involved, and whether a more informed debate will alter significantly the current strategy and that of the next administration.

Posted by: Brendan P. Geary

Tags: civil rights detainees terrorism human rights torture

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

» Contact the editor

» Learn more about the M.A. in International Law and Government at Georgetown University.

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