10 Things About the CIA's Bad Day

(AP)
This hot August day really is a dog for the Central Intelligence Agency.

The Justice Department releases a declassified report (drafted in 2004 by the CIA's Inspector General) which contains brutally embarrassing details about past interrogation tactics. The White House announces the formation of a new, elite, highly-complex interrogation team that places the Federal Bureau of Investigation and the National Security Council and not the CIA at the core of future questioning sessions of terror suspects. And then the Justice Department comes back with its own internal report recommending the renewal of a criminal probe into past prisoner abuse by CIA agents.

It's been such a tough day in the spy world that CIA Director Leon Panetta had to draft and circulate a "cheer up, buck up" memo to his staff, reminding them in self-serving bureaucratic fashion that what some of them did to those detainees back in 2002 and 2003 was pre-approved by Bush-era lawyers through those Office of Legal Counsel "torture memos."

"For the CIA now," Panetta wrote today, "the challenge is not the battles of yesterday, but those of today and tomorrow. It is there that we must work to enhance the safety of our country. That is the job the American people want us to do…"

This confluence of events over prisoner abuse and the CIA's role in it has been coming for a long, long time. And yet there are still so many moving parts, so many unanswered questions, that perhaps the best course now is simply to identify a few of the most important themes and issues sure to play out over the next few days, weeks and months. Here are the first 10 angles that come to mind.

1. Just because the Justice Department's Office of Personal Responsibility has rejected Bush-era conclusions and recommended a second look at criminal prosecutions doesn't necessarily mean we'll see any current or former CIA agents as defendants anytime soon. The final call still rests with Attorney General Eric Holder and there are as many political reasons not to proceed as there are legal ones warranting trials.

2. The creation of the new elite interrogation unit represents the Obama Administration's clearest break yet with the controversial and in some ways extralegal anti-terror policies and practices of the Bush White House. The sad fact is that federal law enforcement officers, trained in both evidence-recovery and questioning, initially handled terror interrogations -- and by most accounts did a credible job -- before being supplanted by the CIA to disastrous effect.

3. With or without gory details about mock executions and power-drills, it would be exceedingly difficult for federal prosecutors to convict CIA agents accused of prisoner abuse. There would be problems with the admissibility of evidence in our regular civilian courts, to name just one obvious problem. And such cases would open up for legal and political debate the substantive merits of infamous Bush-era torture memos written by John Yoo and Jay Bybee and Alberto Gonzales. The White House -- this White House -- has said over and over again it doesn't want that to happen.

4. Although it is sure to be underreported, don't dismiss the significance of the changes announced today to the government's secret prisoner transfer policy, which the rest of the world calls "extraordinary rendition." The practice as performed during the Bush presidency remains even now one of the least explained or justified terror-law policies we've implemented since the Twin Towers fell.

50921775. The aforementioned Holder now is truly caught between legal and political pincers—to prosecute or not, to look backward or forward-- and how he handles that tension will go a long way in determining the rest of his tenure as Attorney General as well as his long-term legacy. Will he point to the new policies as political cover for legal inaction? And if he does will the Administration's allies on the left ever forgive them?


6. Even the CIA seems now to agree that some of its agents went beyond even the expansive interrogation rules adopted by the Bush White House. This means the Agency is prepared to cut those agents loose before a criminal prosecution even as the CIA argues that in the main it behaved legally and properly (and successfully) at all times. That's a tricky dance, both in law and politics, and it's unclear from Panetta's mash note this morning whether he can pull it off.

7. None of these developments is likely to help empty the prison at Guantanamo Bay, Cuba anytime soon. Almost all of these developments, however, might generate some desperately-needed goodwill and trust between the executive branch and the federal judiciary, which ultimately will decide the legal fate of the agents and the constitutionality of these new policies.

8. The men and women responsible for formulating the failed detention/interrogation policies—the ones now tarnished and superseded -- have yet to fully answer for their judgment and their conduct during the first Bush term. Terror law architects and philosophers like Yoo, Bybee, Gonzales, David Addington (and many more lesser lights) have never had to face any sort of cross-examination, under oath, about their role in creating the problems that today's moves aim to fix.

9. Today's new course by the Obama Administration, and the newly-released information from the Bush Era, virtually guarantees that we'll all still be in the thick of the terror-law debate in America ten years after September 11, 2001. In fact, it's easier to see a scenario where some of the new policies are just then wending their way to the United States Supreme Court.

10. The planned and perceived new paradigms -- on rendition, on interrogations, on the way we treat past abuse -- may not work. But it won't be for lack of effort. The seeds of today's produce were planted just after the Obama Inauguration in January. Ask me next January, or the one after that, if this new path is truly the one that matches our thirst for security with our respect for the law.

More Coverage:

CIA Threatened To Kill Suspect's Children

Holder Taps Prosecutor to Probe CIA Abuses

New Unit Will Question Key Terror Suspects

Panetta Defends CIA in E-Mail to Agency

W.H.: CIA Not Out of Interrogation Biz

Washington Unplugged; "Crisis Moment" for the CIA



(CBS)
Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.

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