Today’s Washington Times features an opinion piece by GEN Michael Hayden, whose most recent two gigs were as head of the CIA and the NSA. Given that background, it’s probably not much of a surprise that his op-ed blasts the Obama administration for its plan to release another cache of documents relating to the CIA’s “enhanced interrogation” practices. (Say what you want about the program, but I loathe the euphemism. Aren’t we adult enough to simply argue over whether certain forms of torture ought to be permitted? It’s a legitimate question, but we shouldn’t paper over its seriousness with comfortable euphemisms. </rant>)
I’m going to leave aside all questions about the legality/morality of the actual practices. If you’re really curious, you can go to Amazon and buy War, Morality and Ethics; the collection includes an essay on torture with which I agree 100 percent.
I want to focus instead on one of Gen. Hayden’s particular arguments:
The second task is to explain to the intelligence work force that the government still has its back. This too is a tough sell, especially when the work force reads in a Newsweek cover story that, in supporting the release of the first set of DOJ memos, the leadership of the Department of Justice calculated that “if the public knew the details, … there would be a groundswell of support for an independent probe,” and that when the decision to release those memos had been made, the DOJ leadership “celebrated quietly, and waited for the national outrage to begin.”
Now, in one of those neato coincidences, I happened to attend an event this morning at which Gen. Hayden and former DHS Secretary Michael Chertoff spoke about private contractors in the intelligence community. (Don’t be too impressed by this; mostly it involved getting up absurdly early, putting on a tie and going to the 13th floor of my own building. Tell people you’re a reporter and they’ll let you into pretty much anything. Especially at 8 a.m. in a city that everyone with any sense leaves in August.) At any rate, several people asked Gen. Hayden to elaborate on his op-ed. Hayden explained that he was worried that investigating rank-and-file CIA operatives who were simply following directives handed down by the president and approved by DOJ and the CIA chief would prevent them from “pushing the line” and encourage “timidity.”
This, to me, is a puzzling response, particularly coming from a retired general. [ed — I was going to put an Air Force joke here, but it seemed too easy.] In the military, “I was just following orders” isn’t a legitimate defense. Indeed, chapter 8 of Army FM 27-10, The Law of Land Warfare, has an entire section (IV if you’re wondering) dealing with “Defenses Not Available” to those soldiers accused of war crimes, the very first paragraph of which reads:
a. The fact that the law of war has been violated pursuant to an order of a superior authority, whether military or civil, does not deprive the act in question of its character of a war crime, nor does it constitute a defense in the trial of an accused individual, unless he did not know and could not reasonably have been expected to know that the act ordered was unlawful.
The rest of the section goes on to say that following orders might be considered mitigating, and that courts martial should take into account the fact that soldiers are expected to obey orders. There’s a lot of leeway. But there is also an expectation that soldiers actually pay attention to whether or not they are being ordered to break the law.
It’s curious, then that Gen. Hayden wants to hold CIA operatives to a lower standard than the one that applies to a 19-year-old fresh from AIT.
Again, this is all separate from asking whether or not any CIA operative ought to go to jail. Even if we apply something like the Law of Land Warfare standard to CIA operatives, there’s a good case to be made that they still ought not go to jail. After all, an opinion from DOJ that something is legal (however shoddy the reasoning) is still prima facie evidence that the act really is legal. Whether we should hold a CIA operative morally accountable for accepting John Yoo’s legal advice is a judgment call (Professor Yoo now teaches at Berkeley’s law school, so the “he’s obviously incompetent” line is going to be a tough sell).
Still, Gen. Hayden’s argument isn’t that we shouldn’t convict CIA operatives of wrongdoing. It’s that we shouldn’t even be investigating them, since doing so may make them less good at their jobs. This is an argument that we ought not even consider the possibility that CIA employees may be individually guilty for following bad orders. It’s hard to see a principled reason why the CIA should be held to lower standards than the Army.