Oh, that Rupert Murdoch. In Friday's Review & Outlook piece, Criminalizing the CIA, the Wall Street Journal makes a very curious argument: The Justice Department has sole authority to determine what is legal, and any directives it gives are automatically legal.
They start in the title by setting up a false choice: criminalize CIA agents, or do nothing. They come down on the side of doing nothing, but they ignore completely the culpability of the Justice Department itself.
To wit:
Our understanding is that the tapes were made in the first place because the CIA agents wanted to protect themselves by documenting what did and did not happen in the course of the interrogations. Far from being rogues, they had legal authorization from the Justice Department.
And that's that. What's the problem? The problem is that they argue for allowing the Justice Department to investigate itself in this matter:
Mr. Conyers is offended that Mr. Durham will report to the Deputy Attorney General, rather than have the kind of plenary powers that Patrick Fitzgerald was handed in the Valerie Plame case.
But that difference may be the one saving grace here. It means that, unlike Mr. Fitzgerald, Mr. Durham will at least have some political supervision as he assesses whether genuine crimes were committed.
Oh, good! He'll have political supervision. In other words, if any of his findings are politically unpalatable, they will be struck from the record. The Wall Street Journal is arguing in no uncertain terms for the politicization of the Justice Department.
Then it really starts getting nuts:
The Bush Administration is already on its way out, so the real damage here may be to our ability to gather future intelligence no matter who is President. For a time after 9/11, everyone in politics wanted a better, more vigorous CIA. Congress conveniently forgot the Church Committee of the 1970s and the general assault on the CIA toward the end of the Cold War. But now, between the interrogations dustup and the manufactured outrage over wiretapping, our political class is again moving back toward vilification of the spooks who might actually do us some good in the war on terror.
No, the real damage here might be that we have a Justice Department that can do whatever it wants, then investigate itself, find itself innocent, and all the while allow lengthy cover to politicians who can say, "There's an ongoing investigation, so I can't comment on it." Works out perfectly.
And, wait a minute – MANUFACTURED outrage over warrantless wiretapping? It's OK for a president to spy on political enemies because he doesn't have to get approval from anyone to do it, or tell anyone about it afterwards? It's OK for a president or one of his henchmen to listen in on corporate communications and get inside information about financial results, then trade accordingly? Apparently the WSJ has no problem with any of this.
To conclude, they reiterate their false choice:
But why should any future agent take any risks to gather information, or pursue an enemy, if he thinks he is likely to have to answer to some future prosecutor for his every action?
The answer is that a CIA agent should in fact not take such risks. The CIA agent should gain authorization from the Justice Department first, as apparently happened here, and be free from the possibility of prosecution. One cannot be prosecuted for obtaining legal clearance from an authority he or she had reason to believe was legitimate. That's called following orders, and CIA agents are obliged to do so. What the Journal leaves out is that it then becomes incumbent upon the Justice Department to answer for its directives, and not by investigating itself! What do you think they'd find?