Don't make field agents second-guess their actions
Point: Robert Alt

As we begin, it's worth noting that we're not discussing whether to investigate or prosecute allegations of abuse by interrogators. That has already happened. What we're discussing is whether the re-investigation and possible prosecution of abuse allegations -- which the Department of Justice has already investigated and expressly declined to prosecute -- will have a chilling effect on CIA agents.

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.

Some critics claim that stress positions, being subjected to loud noise and sleep deprivation are torture. But even the European Court of Human Rights has ruled that these tactics do not "occasion suffering of the particular intensity and cruelty implied by the word torture as so understood."

Given the lack of perfect clarity and the presence of disagreements, it's important that agents who acted in good faith and followed the legal decisions of their superiors not be prosecuted. To U.S. Atty. Gen. Eric J. Holder Jr.'s credit, he gave some assurances to this effect:

"The men and women in our intelligence community ... need to be protected from legal jeopardy when they act in good faith and within the scope of legal guidance. That is why I have made it clear in the past that the Department of Justice will not prosecute anyone who acted in good faith and within the scope of the legal guidance given by the Office of legal Counsel regarding the interrogation of detainees. I want to reiterate that point today, and to underscore the fact that this preliminary review will not focus on those individuals."

It would be good if this assurance were not applied in an unduly legalistic manner. We know from the CIA inspector general's report that legal interpretations were given to field operatives from sources other than the Department of Justice's Office of legal Counsel, or OLC, including in cables and e-mails from the CIA general counsel's office, which likely included interpretations of those guidelines. If those opinions were erroneous and are seen as outside of the scope of the OLC's legal guidance, will Holder still choose not to prosecute?

He should; doing otherwise would create conditions in which field agents would be forced to second guess the legal opinions of every directive or face possible criminal sanctions. That would be a disservice to the agents -- and create a significant chilling effect in the future.

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

Laws matter, even for CIA agents
Counterpoint: David Kaye

I want to get to the question posed, but let me say right off the bat, Robert, that we seem to be close to agreement regarding at least one element of Holder's decision. I think it's right for the Department of Justice to focus on the incidents described in the CIA inspector general's report, released Monday, that are most egregious and clearly outside the scope of the OLC's earlier flawed guidance -- rather than on those who in good faith implemented that guidance. In part that's because I think the worst violations were made by senior Bush administration officials, something we'll discuss tomorrow (and about which I'm guessing we'll disagree).

So after that throat-clearing, let me say this about the chilling-effect argument.

The "chilling" argument involves at least two kinds of claims. The first, which you do not make, is to suggest that if interrogators lack the freedom to "take the gloves off," Americans will be less safe. It's the Jack Bauer argument, and it's the position adopted by several Republican senators in a letter sent to Holder last week. But just as the television show "24" is fiction, so is this claim. Nothing in any of the reports released over the last several years -- from the earliest post-Abu Ghraib reports to the most recently released one -- demonstrates that unlawful interrogation techniques (such as waterboarding, the use of which Dick Cheney calls a "no-brainer") have made us safe.

A second claim is that uncertainty in the law or its enforcement will chill initiative. I agree with this, but I think we're beyond it. President Obama has outlawed the Bush administration's unlawful tactics, and there is substantial clarity in the Army Field Manual on Interrogation, which the Obama administration has adopted for all interrogations. So investigations of abuse at this stage seem to me to be less likely to chill future behavior; to the contrary, they may bring clarity to the law.

I want to make a more general comment: The law is supposed to chill illegal behavior. As a nation, we want to deter violations of laws that reflect our society's core values (such as the protection of human dignity, both the interrogator's and the detainee's). Agents are smart and professional enough to understand the difference between investigating someone for threatening a detainee with a gun and a power drill or threatening his family, as detailed by the CIA's inspector general report, and declining prosecution for careful implementation of Department of Justice guidance, as wrongheaded as it was.

Americans working at the "contact point" with detainees work in the shadow of the law. Our soldiers are well trained in the Geneva Convention and service field manuals. Our intelligence officers work under the shadow of laws such as the Convention Against Torture (negotiated by the Reagan administration), which Congress and the president enacted as part of U.S. law. We need to reinforce the message that these laws mean something, and that serious violations will be addressed by our legal system. Otherwise, they're just not worth that much.

David Kaye, a former State Department lawyer, is executive director of the International Human Rights Program at the UCLA School of Law.