The decision by Attorney General Eric H. Holder, Jr. to name a federal prosecutor to investigate past Central Intelligence Agency (CIA) interrogation practices has been met with a mix of praise and outrage. Some have called for a more thorough probe, and others have warned of the potential damage to U.S. counterterrorism efforts. Burton L. Gerber, an adjunct professor at Georgetown University and a former CIA station chief, says while the probe may be legally justified, the move could prove a costly distraction, restricting President Barack Obama’s ability to push his domestic agenda while weakening U.S. counterterrorism efforts. "It is going to interfere in some significant ways, and some of them are going to be ones that prevent Obama from looking forward because it becomes the dominating feature of intelligence for a while," he says. Yet Gerber praises another Obama administration decision, the creation of a new unit to handle the interrogation of high-value detainees led by the Federal Bureau of Investigation (FBI).
Attorney General Eric Holder has named a federal prosecutor to conduct a preliminary investigation into the CIA’s past interrogation techniques. The move comes despite President Obama’s repeated assertion that he has no interest in looking back on Bush-era counterterrorism policies. How surprised are you that Holder made this move?
Holder clearly had a choice, but I wasn’t surprised he made that move because he has been signaling for a month or two that he was aiming that way. Even though the president doesn’t want to do it, Holder, as attorney general, has a different role to play: He is, as some commentators have said, attorney general of the United States and not of President Obama. He has the perfect ability to do this. Whether it’s politically wise or juridically justified is another issue.
Somewhat ironically, both sides of the political aisle have expressed disappointment with the attorney general’s decision. Those on the left claim the proposed investigation is too narrow, while those on the right allege that it will impede efforts to defend against future terror attacks. As a career veteran of the agency, where do you come down?
Both of those arguments have some merit. I haven’t seen anybody except Senator [Russ] Feingold [D-WI] make that first argument. Feingold’s point is a broader point, because he wants to get at the question of how U.S. officials--including lawyers in the Justice Department--made these kinds of judgments that authorize this. Then you have the political and agency leaders who then went ahead with it. On the other side, you have people saying that this is going to interfere with operations. It is going to interfere in some significant ways, and some of them are going to be ones that prevent Obama from looking forward because it becomes the dominating feature of intelligence for a while. This is what everyone will be consumed with.
Having been a case office and chief of station abroad, I know that a lot of what we do in the places I was wasn’t influenced by what was going on here politically. In other words, if you’re a case officer, you do your job. You’re not sitting there saying "woe is me" or "woe is my organization." You’re doing your job. On the other hand, so much of the job is risk. I wish that the American people and American politicians would understand that. Risk taking is what you want. Things that discourage risk taking are going to inhibit what you’re going to do. I’ve been speaking out against these interrogation techniques--torture, secret prisons, and so forth--for years now, so I’m not defending that. But I find myself with the president on this broader issue of focusing on what we need to know now.
I was not happy with some of what the interrogators reportedly were doing … But I’m not sure if you or I need to know.
Are there potentially chilling effects to that culture of risk taking that are likely to emerge as a result of Holder’s investigation?
When you take risks, you want to take them based on what is reasonable to do in the collection of intelligence or promotion of covert actions, based on the direction given to you by your superiors in the agency, and through them from the policy decision makers. When you see that all of this was decided upon and approved, even by the responsible lawyers that wrote the opinions, and that then people can then reopen everything, you have people saying, "Wait a minute, maybe I don’t want to get in the middle of all of this."
On top of what’s happening at the Justice Department, the release this week of a five-year old CIA report offers new insight into tactics used during CIA interrogations--specifically, threatening detainees’ families, hard takedowns, the use of drills, and a host of other things. What’s more shocking--that these kinds of things happened, or that the public is now learning about them?
The whole thing becomes shocking to me in many ways. As you said, there are these individual vignettes that come out that are truly shocking. The question [is whether] you can prosecute it. You can’t prosecute based on a story. You have to prosecute based on evidence. I’m not sure if they have that. All of those incidents are terrible, and this is the kind of thing I’ve been arguing against, without knowing that particular things happened, such as threats to families.
[But] the release of the report is one of those things that doesn’t serve any great purpose except to throw red meat at the whole political system so that we can all quote from this and worry some more about it. There are now people, particularly on the left, who want every "i" dotted and every "t" crossed and want to know what everyone was doing at any given time. That’s probably detrimental. There’s a real risk that there will be some difficulty in dealing with foreign intelligence and security services, and that’s always going to be a hindrance, even though outsiders never seem to understand that. I was not happy with some of what the interrogators reportedly were doing. I am unhappy with the additional details. But I’m not sure if you or I need to know about them.
And yet despite all the criticism that the president is not doing enough to reverse the policies of his predecessor, at least he’s being more transparent, right?
I suspect that he’s attempting to be. I’m a little struck by the fact that the president has announced that we will continue the rendition program (NYT), but that we’ll get better assurances that no bad things will happen. Is this the real world? I just don’t know how you get that. How do you assure that once you turn someone over to Syria or Morocco that nothing bad is going to happen?
It is going to interfere in some significant ways, [such as preventing] Obama from looking forward because it becomes the dominating feature of intelligence for a while.
On this issue, renditions, some suggest President Obama may be choosing to continue the practice of sending terror suspects abroad for interrogation because to not do so would jeopardize his ability to shutter Guantanamo.
I would put it more broadly: The question is what do you do with people, in Guantanamo or in any other place in the world, who you’ve taken into custody for any number or reasons? The objective of fighting terrorists--and here you get to a very philosophical point--is not law enforcement, it’s destroying terrorists, which doesn’t necessarily mean physical destruction, and their ability to function. If you make that law enforcement, then you truly mean that you’re going to give everyone Miranda rights when you capture them on the battlefield. But this is not law enforcement. It’s a form of warfare.
So what do you do with those people? Well, you detain them. You saw how the previous administration looked at this, and they didn’t know what to do. This was not settled in any real way, because we’ve never faced a situation like this. This is one of the things that politicians, the media, academics, and the intelligence officers need to focus on. You’re experiencing something entirely new. What do you do with these people? You can jail them in the traditional criminal manner, which makes no sense. You can consider them prisoners of war, but that fails because if they were prisoners of war then you wouldn’t even be interrogating them. Or you could treat them, as the Bush administration tried to do, as some special category. If you’re going to do that, you have to hold them somewhere. The reason they didn’t want to hold them in the United States was because they’d come under the color of the U.S. Constitution. So you have to hold them some other place. The president doesn’t want to hold them in Guantanamo, and he doesn’t want to create a prison somewhere, even though we have a prison in Bagram [Air Base, Afghanistan]. He’s saying we’ll send them to country X.
The Obama White House made yet more news this week by announcing the creation of a new interrogation unit to handle high-value detainees. Headquartered at the FBI and operated under rules set by the National Security Council, the move shifts interrogation responsibilities away from the CIA. Some see this as a "slap in the face." Others believe CIA operatives may be secretly happy because they never wanted to be involved in the interrogation business anyway. Your thoughts?
I go along with the latter. I’ve been making the point for quite some time that CIA, at least in the years that I was there before retiring in 1995, didn’t teach interrogation techniques or hold prisoners. The CIA didn’t have that kind of experience. In the wake of 9/11, the Defense Department, or specifically the secretary [of defense], refused to have the military handle the high-value prisoners. So the government decided to send them to the CIA. It’s grand for the CIA to be out of this. I don’t worry about slaps in the face or anything like that. It’s probably a good thing. The FBI does know how to interrogate prisoners. The FBI probably has more experience about how you hold them. But keep in mind what the FBI is first and foremost. They’re a law enforcement agency, and law enforcement agencies think law enforcement. Fighting terrorists is not law enforcement. I have no problem with it being set up, and I’m glad to see it taken away from the CIA. I suspect that a good many out there are pleased with it.