Leon Panetta Pledges That No CIA Employees Will Be Prosecuted For War Crimes

225px-leon_panetta_informal_photoCIA director nominee Leon Panetta gave startling testimony in his confirmation hearings this week by retracting a statement critical of the Bush Administration’s rendition policy and proclaiming that CIA employees will not be punished for any war crimes that they committed. I discuss the testimony on this segment of Countdown.

Panetta made the statements before the Senate Intelligence committee and in an interview with AP. He stated that
“[i[t was my opinion we just can’t operate if people feel even if they are following the legal opinions of the Justice Department.” While he did not address the prosecution of those who ordered the war crimes, he categorically dismissed the idea that you could be prosecuted for just following orders. Of course, that is precisely the defense that we rejected after World War II and executed those who made the “just following orders defense.” We do not apply the same standard to terrorism: we will prosecute the head of Al Qaeda or Libyan intelligence service in a terrorism case but not the individuals who carried out the orders. Like other crimes, you are not allowed to commit torture and you are expected to refuse. Some did refuse in this country and those who did not committed a war crime.

None of this means that low-level CIA employees were likely to be prosecuted or that they had no defense. As I have said before, these employees can make an estoppel defense argument. However, such defenses are made in the course of an investigation. No reasonable leader should state that there is some irrebuttable presumption that an alleged torturer cannot be prosecuted if he was just following orders. The harm done from such careless statements to international law is incalculable. Moreover, by starting with such statements, you remove any leverage of investigations in seeking the cooperation of low-level individuals, who are less likely to cooperation if they know that they cannot or will not be prosecuted for their roles. President Obama and now Panetta have created a new American rule that, so long as a lawyer tells you to commit a war crime, you are immune from prosecution.

Finally, there is the problem of a future CIA director making such an announcement. While Panetta said he would “leave to others” the question of whether high-ranking officials might be prosecuted for war crimes, he could assure the committee that the actual torturers would be given immunity. It is a dangerous and presumptuous claim for an agency head to make. Even an attorney general nominee would be unwise to make such a categorical claim. A CIA director has no part in the decision whether one of his people should be charged as a war criminal — a legal question.

On the renditions question, Panetta was equally baffling. When pressed by Sen. Kit Bond (R., Mo.) on his prior statement that there was a policy to rendition individuals for torture, Panetta conceded that he was “not aware of the validity of those claims” and retracted the statement. Bond then publicly spanked him for “making statements or making judgments based on rumors and news stories,” saying that this was just rumors put out by “liberal blogs” and journalists.

However, it was not liberal blogs and journalists who put out these statements. Various people involved in the case admitted that they routinely used rendition for this purpose and many such cases show precisely this pattern. Panetta should have said that we can debate the meaning of an “official policy.” However, where there is such a pattern and understanding, many would view it as a policy. Policies are not formed like legislation or regulations with a record of committee reports or federal register events to mark its creation. Many an administration routinely renditions individuals, who are tortured, there is ample reason to call it a de facto policy.

For the story, click here

76 thoughts on “Leon Panetta Pledges That No CIA Employees Will Be Prosecuted For War Crimes”

  1. I should have also thanked those people who urged a rapproachmont between Mike and me. I am very grateful for your kindness.


  2. Hey Patty C, please be cordial. You, Jill, and Lindylou are the only female regulars we have on this blawg and I think that good women rule.

    I always look forward to comments from the feminine ‘Trio’.

  3. Mike,

    Thank you so much for what you said. I hated having bad feelings between us. We are both passionate about what we think and neither of us qualifies for the “shrinking violet” award. My good will towards you never diminished either. I absolutely value your opinions and what you have said has opened me to whole different ways of thinking about things. This matter is closed!


  4. Mespo,
    Thank you for succinctly summing up my point and recognizing that I am certainly not out to attack Jill’s integrity, commitment or good nature.

    Buddha, Rafflaw, & FLEO,
    You are all correct in your comments, as is CCD in the request for postponement and CEJ’s motion. Although FFLEO, I do realize that in affirming your comment there is some self-service on my part, but then what’s an old fart to do?

    While I put forward strong arguments from my position on this, my regard for you has never diminished. You were the first person to welcome me to this site and your comments on my posts have always been kind and generous. I thought I took pains to make my points without venom, but it is obvious that to you and others venom came through. I apologize for that, because while I state my lack of intent, obviously I was overzealous in making my case and in the process gave you and others the strong impression of an untoward attack.

    Like others, my life has been a journey of self discovery (I’m sorry, it wouldn’t be one of my posts without a good cliche). One thing I found out about myself is that as a very passionate person in my beliefs, I sometimes overstate my case and hurt others feelings needlessly in the process. I’m hardly a milquetoast (cliche again) but I like most people and don’t like to do them harm. My disdain/anger/vituperation/ferocity is reserved for the ignorant, the pompous, the prideful and the cruel of this world. You so obviously fit none of those categories that clearly rather than rebut and debate our different outlooks, I created a situation that looked suspiciously like attack. That is my fault and for that I’m sorry.

  5. I agree that no one thinks ill of Jill, but her cut and paste arguments, and worship of absolutist Glenn Greenwald’s don’t convince me that the sky is falling because Obama doesn’t march lockstep with their ambitious timetable for correcting each and every abuse of the Bush administration. In essence, Jill is saying things aren’t moving fast enough. Fine, but why argue they aren’t happening at all when much of the criticism appears coming from those with an agenda. Let’s at least give the guy a couple of months before judgment is pronounced.

  6. Buddha,
    I say amen to your comments that noone here thinks ill of Jill because of her views on this thread. The bottom line is that we should all keep an eye on the Obama administration at all times.(or any administration) No politician gets a free pass.

  7. Jill,

    Ma’am, there are no bad guys or losers here; you and Mike S. are two of the best.

    One of my favorite country songs, sung best by Linda Ronstadt, is entitled, “Sometimes You Just ‘Cain’t Win”

  8. Jill,

    I don’t think anyone is trying to paint you as the bad guy. Maybe pointing out a perception of hastiness or bias, but I don’t think anyone thinks you’re one of the bad guys, Jill. It’s less about motive than methodology from what I’ve read.

    So this can keep escalating or everyone can return to their corner.

    I suggest calling it a round before anyone gets hurt/more hurt/whatever. We all (the regulars) agree that torture is both wrong and illegal. We all want it stopped and those responsible brought to justice. Now is the time to discuss how, but arguing is counterproductive as long as forward progress is in play.


    Is it possible you have mistaken Jill’s zeal for something else? As I said, there is no bad party here, but there is a palpable misunderstanding somewhere. Just a thought.

    We are stronger together than apart. Remember that.

  9. Mike,
    I can’t take the responsibilty for everything you are associating with my statement, “a cult of personality”. That isn’t the same thing as a cult. You are belaboring points and I think that isn’t being fair to me as a person, nor is it a reflection of what I have actually written. As I said before I was responding to a group of posts, some of which included that Obama should not be criticized because of his greatness, others who justified torture and so on. I am not willing to be the bad guy in all of this because I wrote in response to what I was reading. The statement to refraim from criticism came from another person, not you. When I read that, it was rather shocking, seeing that this is supposed to be an open forum and that policy has never struck me as a good idea where people in power are concerned.

  10. “I have been trying to explain why I feel more and more nervous about Obama supporters. That being: people on this blog who used to acknowlege that Bush’s actions were wrong, seemed unwilling to call these same actions wrong under Obama.”

    I don’t want to belabor this any further but all of the Obama supporters on this site, even FFLEO who probably had to pinch his nose to vote, have written extensively with critiques of various policies and of their disappointment. When I have said to give him time, I never said that people should shut their mouths, merely to point out (using another of my cliches) that Rome wasn’t built in a day and we shouldn’t be so sure we know where things are going quite yet. Why would you think my belief is to just to rollover and be quiet when at the same time I’m making critical comments and my political views on JT’s site have been extensively delineated?

    In your last post you’ve really adjusted your point of view from there was/is a cult, to there is one forming. Throughout the election you had written about Obama’s cult of personality as an explanation for his getting the nomination and so on. I get that you neither like, nor trust Obama and haven’t all along. That is certainly your prerogative and you are an intelligent person. Please though, don’t disabuse my intelligence or commitment to a better world by making me into an automaton, because this slices both ways. I could just as easily say you mindlessly dislike the man and nothing he does will please you. That would be not only be disrespectful but unfair, since I do respect your independence of thought. Give us Obama supporters the same benefit of the doubt (there I go with cliches again)and just dispute our opinions fairly.

    P.S. I used the term Obama Thrall not as a quote (I shouldn’t have used quotation marks)from you, but as shorthand for describing the cult references. I was unclear in my writing.

  11. Mike,

    I never used the term “Obama Thrall”. In fact, that is the first time I’ve ever heard of that term, so don’t attibute it to me. I can’t take back thinking that there is a “cult of personality” just as JT said, forming around Obama. That’s what I think and that’s what I said. I can’t be sorry for something I believe. I can only be sorry that I hurt your feelings for saying it and that’s what I said. (I think JT and others mean exactly what they say. JT has been remarkably consistent in his analysis.)

    When we first started discussing the prosecution of war crimes, you said Obama was just pretending not to prosecute until Holder was confirmed and/or time had passed. I did not agree with this idea but because you said it and I respect your opinion, I thought, well maybe this is what is happening so it does make sense to give Obama the benefit of the doubt. Whether you believe me or not, because of you, I did hold out hope that you were correct, that I read all the signals incorrectly and maybe he would order the prosecutions. I thought maybe you and others were correct that Obama and Holder were not committing to prosecution so he could get confirmed. It was not what either my heart or my mind told me, but I kept open that possibility. I said it was my opinion that this isn’t what was going on but that I hoped I was wrong. That was the truth. It was also my opinion that it would be a good idea, either way, to let Obama know he needs to prosecute for war crimes. So I kept open this hope, that I had misunderstood everything. Then two unmistakable decisions by the Obama administration occurred. 1. They would not release information to the British for help in a civil suit on rendition. 2. Yesterday’s ruling on state secrets. This left presidential power potentially unchecked , just as his vote on FISA did. In addition, there was testimony of brutal abuse of our prisoners under his watch. Those incidents do not leave a lot of room for doubt about how Obama feels concerning war crime prosecutions or presidential power.

    I believe I gave many reasons, in addition to those I just listed for why I feel Obama is not an infiltrator of the establishment. Those included his past voting record, his funding by banks, telecoms and defense contractors, the list of his appointments, etc.

    I have been trying to explain why I feel more and more nervous about Obama supporters. That being: people on this blog who used to acknowlege that Bush’s actions were wrong, seemed unwilling to call these same actions wrong under Obama. Until today, I didn’t realize anyone was sending the WH any e-mails or phone calls expressing that they thought those things were wrong. Much of what I heard from this blog was people saying they were going to withold judgement until later. This made me quite nervous. It’s one thing to withold judgement while letting Obama know you think he’s doing something wrong, and quite another to just keep your mouth shut because you are withholding judgement. The message I have been reading is to stay quiet while Obama works it out, gets his bearing, or does his infiltration. I can’t in good conscience assent to that idea.

    Bruce Fine says the United States can walk and chew gum at the same time. Yes we are facing multiple crises. Yet the Obama DOJ did sit down and come to a decision regarding state secrets, one that enhances presidential power and denies justice. Since they spent the time to come to that conclusion it is only fair to say that they could have come to a different conclusion. The time spent is the same in either case. Obama spent the time to give his decision to the UK, that time was also spent and we had another bad ruling. So in these cases time was not the issue, bad decisions are. As to appointments–these took time as well, again the problem is not time, it is the bad decisions. Jeremy Scahill goes over the defense appointments in detail. He cannot be called a MSM or a right wing critic. He points out the connection between the military/contractors and those appts. JT has said many times that once war crimes are committed the president has only to get out of the way and let the rule of law take its course. This has yet to happen. Time was taken to come up with the rules for faith based intiatives, again, it isn’t time that is the problem, it is the decision. So yes, we have many problems but we have already seen some very bad decisions on these problems. Finally, I have seen people justify the abuse of detainees under Obama. That is simply an immoral position to take. So yes, reading posts on this blog has been both frustrating and scary. I can absolutely understand giving more time to Obama while simultaneously calling him on bad behavior. I wasn’t seeing a lot of that going on. I was seeing his bad behavior justified and excused, to include abuse of detainees (see posts above).

    I said I was worried about the cult of personality based on the aggregate of the posts on this blog, justifying really bad behavior. I did try to lay out my own positions and back them up with citations. I don’t know what more I can do.

  12. Thanks Mike Spindell for the list and your perspective. We can never have enough contrary evidence and reasoned opinion, both of which are essential ingredients necessary for critical thinking skills.

  13. Jill,
    You may not have intended to insult me, but nevertheless you did and I didn’t ask for nor need an apology, which saying you’re sorry for hurting my feelings wasn’t. My point to you and I’ve iterated and reiterated it over many comments, on many different threads here is that it is way too early to make judgments after 22 days of his Presidency, in any respect. Taking full control of the reins of government is not easy under any circumstances, but this has to be the single most difficult Presidency to assume since FDR and before that Lincoln. Shall we list although not in level of priority?:

    1. End Iraq War
    2. Resolve Afghanistan
    3. Keep monetary system solvent
    4. Get people working
    5. Get economy moving
    6. End torture
    7. End illegal surveillance
    8. End rendition
    9. Bring peace to ME
    10. Bring health care to all Americans
    11. End inequity of wealth due to unfair benefits for wealthy
    12. Reform government oversight of corporations/banks
    13. Deal with housing crisis
    14. Reform election financing
    15. Reform voting irregularities
    16. Prison Reform
    17. End the War on Drugs
    18. Remake our educational system
    19. Make higher education affordable
    20. Reform inequitable tax structure.

    Now I specify that that’s just off the top of my head, but please understand they are not weighted in priority order because I think all of them are of an equal priority, if we are ever going to get the country and society we want. In fact I added 5 more to the list just after writing the preceding paragraph. Given this, figuratively stamping one’s feet over the fact that a problem still exists, is much less helpful than at least trying to add one’s small voice to the solution.

    Also in those 22 days I phoned (202-456-1111) The White House 5 times to express my displeasure with particular issues and have sent it at least 8 E mails also with criticism. I also made quite a few negative comments on policy here in that same 22 day interim and prior to it. Somehow I don’t think that makes me an idol worshiper.

    You have asked for proof of my contentions and I have provided my reasoning over and over again, including above some self disclosure about how I came to think as I do politically. I have provided you time and again with my reasoning only to have you comment either “thank you” without comment, or to fail to respond to salient points. I am and have always been an iconoclast. I read voraciously and spend hours each day scanning the news on the net. My way has always been to synthesize what I see and develop opinions based on that synthesis. Can I provide you chapter and verse of authority to back up my point of view, sure I can. But then of course so could you and rather than a discussion it becomes a battle of the validity of sources. As you well know if someone has proven a statement of mine false I have immediately acknowledged it and apologized.

    Buddha has provided two cogent posts above and your response to them was not to refute his points, but to slide around them or ask him further questions. You even used a quote from JT as refutation:

    “But there is a danger of a cult of personality developing around Obama, that supporters could, in all this adoration, confuse the man with his mandate.”

    JT is clearly expressing that a danger exists, however, you have been saying during the campaign and afterwords that it not only already exists, but it is the prime reason people supported Obama. That is not quite JT’s statement. However, let’s say for argument’s sake it is. As much as I admire, respect and like the Professor (in a internet/TV sort of way) if that was his position I would disagree with him.

    I think though that you miss the point of what people like JT, Paul Krugman, Dean Baker, Glenn Greenwald, et. al. are doing. I am sure they are all personally thrilled that Obama’s in office, but as public men with standing and a following they are representing their points of view to try to push the policies they believe in. This is the warp and woof of politics and political discourse.
    Often to be heard above the MSM din you have to in effect overstate or over dramatize your case to be effective.

    Since though, you have chosen to characterize me, perhaps you’ll understands why I stated in my comment above:

    “I would also point out to you that you have written about never being an Obama supporter, so by the same token if I accused you of only looking for things to support your opinion and ignoring everything else, I too would be insulting your open-mindedness and intelligence.”

    If you truly believe that I am in the “Obama Thrall” why would it be unreasonable for me to believe that you’ve never liked the guy and every move he makes you’ll pore over to find a justification for your feelings? It goes both ways and discussion to me is always preferable to negative characterization.

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