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.
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