Even as President Obama acted in the name of transparency and accountabilty in releasing the Bush administration’s OLC’s torture memos, he made assurances that the CIA agents who used the "enhanced interrogation techniques" meticulously detailed within would not be subject to criminal prosecution. Glenn Greenwald at Salon, Jeremy Scahill on his blog, David Bromwich at Huffington Post and Ta-Nehisi Coates at the Atlantic all have good takes on why Obama’s decision is wrong. I concur. However politically expedient, Obama’s nearly carte blanche absolution of torture was morally wrong, and his justification of it, from a professor of constitutional law, is intellectually dishonest.
Obama’s rationalizations were artfully made to the point of being obfuscatory, but they can be boiled down to three points:
1) The strategic issue of national security. "The men and women of our intelligence community serve courageously on the front lines of a dangerous world…We must protect their identities as vigilantly as they protect our security, and we must provide them with the confidence that they can do their jobs."
2) The legal-ethical issue of obedience. The CIA agents were only carrying out "their duties relying in good faith upon legal advice from the Department of Justice."
3) The political issue of national unity and progress. "This is a time for reflection, not retribution…at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past."
The easiest to dismiss of these is the issue of national security. As Bromwich points out, the matter of protecting individual CIA agent’s identities is "a calculated distortion." Any agent publicly named and prosecuted for torture would, of course, be removed from duty. Their identities no longer need to be protected as a matter of national security because they would no longer be in the business of national security.
As for the question of whether or not prosecutions would undermine intelligence agents’ "confidence that they can do their jobs," I agree with Obama here. Prosecutions absolutely would undermine the CIA’s confidence, and that is a good thing. No public official, least of all intelligence agents who already operate under cover of secrecy, should be wholly confident of the legality and morality of their actions. To guarantee such confidence would be to guarantee absolute impunity. Indeed, this necessary lack of confidence is precisely why the OLC memos exist in the first place, because interrogators were seeking advice about the legality of certain interrogation techniques. So the question is not whether or not prosecution would undermine the CIA’s confidence, but rather a) how much so? and b) from what source is their confidence derived?