Misguided Justice

Statement

By U.S. Senator Jon Kyl

Until a few weeks ago, the Obama administration indicated that it intended to respect the longstanding decisions of career prosecutors, who, after careful review, determined that the facts did not support prosecuting intelligence officers who interrogated al Qaeda terrorists. Indeed, President Obama has repeatedly said that he wants to look forward, not backward, on this issue.

So why then, has the attorney general appointed a prosecutor to reopen this matter for the potential to bring criminal charges against intelligence officers?

The attorney general did not mention the discovery of new evidence. And his words and actions failed to acknowledge that this inquiry had already been made and closed. In fact, three former attorneys general and numerous career prosecutors have examined the findings of the previous investigation and determined the facts do not support prosecution.

The passage of time since 9/11 seems to have dimmed memories. We need to remember that the whole nation feared more attacks. The interrogation techniques employed during that period produced information that saved lives.

Interrogations of Khalid Sheik Mohammed, the mastermind of the September 11 attacks and the man the CIA has called its “preeminent source” on al Qaeda, revealed a plan to carry out a September 11-type attack on the West Coast and to attack landmarks in New York, such as the Brooklyn Bridge.

The 9/11 Commission was appointed to determine why we didn't foresee the attacks. It concluded that keeping our country safe from foreign attack requires that the Justice Department work cooperatively with the intelligence community, which was lacking before 9/11. The appointment of a prosecutor to reopen cases that have already been investigated will again drive a wedge between the agencies that have been trying to work more closely together. After all, it's hard to trust someone today who may be investigating and prosecuting you tomorrow.

At a minimum, members of the intelligence community will worry that actions they take today will be subject to legal recriminations when the political winds shift. Not only will this make them more risk adverse, it will occupy their time and drain their resources.

Former CIA director Michael Hayden writes in the Washington Times that many CIA officers are uncertain how this will ultimately play out, and some have already hired lawyers and inquired about professional liability insurance. In a great understatement, Hayden says this is “not exactly the formula for nurturing a vigorous and creative intelligence service.”

CIA director Leon Panetta has also sounded a warning -- that he's become increasingly concerned that this focus on what happened in the past will distract intelligence officers from their core mission of protecting America.

These are the people we count on to protect America and prevent terrorist attacks. There is no dispute that the techniques used to interrogate leading al Qaeda members saved lives. And it's not a coincidence that we approach the eighth anniversary of September 11 without another attack on our soil.

Rather than trying to resettle old scores against fellow Americans, the nation would be better served if the administration focused more on supporting the intelligence community as it pursues the war against terrorists, instead of distracting it from its duties and chilling its activities.

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