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The CIA and Torture

By Jack M. Balkin

The point that is getting lost in the controversy over whether to prosecute those who tortured is why the CIA was involved in the first place. The CIA could volunteer for this task because from the beginning of the national security state it was never subjected to the kind of rule of law restraints that bind the rest of the government, especially with regard to covert action. The puzzle is why the current controversy is not leading to the kind of calls heard after the intelligence investigations of the 1970s and the Iran-contra affair of 1986 to write a charter or framework statute to govern the CIA's activities. You can turn to Dean Harold Koh's still-relevant 1990 work, The National Security Constitution, for an argument of this kind. After all, as citizens, we have a better chance to influence a policy debate as compared to a debate over whether to prosecute. But no one seems interested in starting a debate over whether the CIA should have been able to raise its institutional hand and say the equivalent of: "sure, we'll give it a try."

Full post as published by Balkinization on April 20, 2009 (boomark / email).

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