The pundits need to “chill out”

(noon. – promoted by ek hornbeck)

This turd of reasoning has been floating around awhile; if you investigate the Agency it will have a chilling effect which will hamper officers decision making and situations.

The answer, regrettably, is yes. Agents who relied on previous decisions not to prosecute are back in potential peril. And their angst and uncertainty will be shared by others in the intelligence community, particularly if the investigation is officially broadened.

The agents’ concern over their potential liability for past acts is understandable, given the relative legal uncertainty in which they operated. Most people believe that they know intuitively what torture is, but precisely what techniques meet the legal definition of torture is anything but clear.

WRONG….

The only agents, operatives, or managers who are likely to feel that chill run up their spine are the ones who tortured prisoners, some, to death.  Yes, this will have a chilling effect on them.  Yes, during some of the management meetings, there may be a chill in the air as they try to discuss policies and operational tactics, but, that chill will be felt by those who wish they could torture someone to death but can’t speak it.  Sure, that may make for an uncomfortable meeting, sitting there watching the “torture-em-all” guy sweating.  As for the Agency itself, it will be demeaned, demoralized, exposed, and the Agency is going to be able to do nothing more than watch the sludge drain out in front of the public.  Yes, there will be a “chilling effect”.  But, it will not, as has been characterized here, force people to second-guess the decisions.

Don’t make field agents second-guess their actions

Point: Robert Alt

Agents going into the field with a set of rules.  What we saw with the CIA is that those rules may or may not be legal.  So, Robert Alt is wrong; Agents were already forced to second-guess their actions.  

An Agent doing an interrogation has a choice to make: use approved legal methods, or, use methods dubiously “deemed” to be “legal” on paper but the Agent knows is torture and illegal.  Many Agents used the latter, the EIT’s, knowing that there could investigations, recriminations, and possibly punishment.  Why do you think the Agency is screaming, “but, but, we were promisssssed“.  The ONLY time an Agent has to second-guess his actions is once he goes outside of established procedures.

It was far from “settled law” that the Geneva Conventions were quaint, outdated, and easily kicked to the curb because Dick Cheney had a lawyer say so.  In contrast, it was “settled law” on what constituted torture.  That John Yoo turned it into a pretzel in a MEMO didn’t change the settled law.  The Army Field Manual was changed which gave the procedures to the military.  

The overwhelming point is that a law is a law until it is repealed, rescinded, or superceded.  A Field Manual is NOT the law, it is GUIDELINE to be followed.  The Army reservists that were found guilty from Abu Ghraib did not put up as a defense, “we were only following the Army Field Manual’s guidance”.

If you do it right, in lawful ways, there is no NEED for second-guessing.  Robert Alt is an idiot.  But, then, here is where he works:

Robert Alt is a senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation.