Not since 1975 when the Church Commission investigated Nixon-era abuses in intelligence agencies, have such unusual things occurred in the world of Washington intelligence agencies as in these past few weeks. The Democratic House of Representatives threatened to pass an intelligence authorization bill which the Democratic White House has promised to veto. The former Democratic congressman who now heads the Central Intelligence Agency has been having a public disagreement with leading House Democrats about whether the CIA lies to Congress. There is a controversy about a secret CIA program to do something most Americans presumably want the CIA to do, to kill al Qaeda terrorists. The attorney general is rumored to be looking for a special prosecutor to investigate CIA interrogators, even though the president seemed to have earlier told CIA employees that there would be no prosecutions about alleged torture. Former CIA employees are publicly trotting out the claim that all of this attention “hurts the Agency’s morale” and that damage could result in another successful terrorist attack on the U.S. Even seasoned Washington policy wonks are finding it hard to navigate their way through all of those stories and make some sense of what has been going on.
Unless we understand what all of this drama is really about, we will not get the delicate balance right between the needs of a democracy and the rule of law on one side and the requirements of a secret intelligence service on the other. And this democracy needs a functioning secret intelligence service to protect it against the current genres of threat.
All of this recent Washington activity about intelligence is perhaps best understood as three distinct, but related stories playing out against a backdrop of suspicion about what the previous administration may have done in reaction to the 9-11 attacks. It is also part of a 60-year historical pattern of manic swings of opinion in Washington about the efficacy of covert action.
The first story should probably have been headlined “House Democrats finally realize intelligence oversight system is broken.” Most of the time the CIA collects and analyzes information, but on rare occasions it goes beyond reporting and tries to change things in the world by carrying out activity in secret, activity which it does not want attributed to the United States. For three decades laws have required the president to inform key Congressional leaders before the CIA undertook such “covert actions.” For most of those three decades few of the Congressional leaders eligible to be briefed took that responsibility very seriously. Often they would grudgingly make time to meet with someone from the CIA, ask a few questions, and go on their way. That Congressional disinterest generally suited the CIA, which did not really want any serious supervision of covert action by anyone outside of the Agency, least of all by members of Congress. Had a Congressional leader really wanted the oversight responsibility for covert action, the notification system would have made that almost impossible.
Here is how that system works for sensitive programs: Eight Congressional leaders get calls from the CIA director’s office, asking for an immediate appointment to brief on a “sensitive matter.” The CIA does not say what the subject of the briefing is, so there is no way the congressmen can get ready for the meeting. The briefing usually occurs with only one congressman in the meeting at a time. None of the expert staffers from Congress can come to the meeting, or even know after the fact what was discussed. If the congressmen find the proposed covert action troubling, there is little they can do but express that opinion orally in the meeting. Because the subject is highly classified, the congressmen cannot easily send a letter to the president dissenting.
In short, the oversight of covert activity was more of a ritual than a reality. House Democrats seemed finally to understand that this month in the wake of confusion about what House Speaker Nancy Pelosi was or was not told several years ago about waterboarding. They, therefore, proposed an amendment to significantly broaden who in Congress could be told about covert action. The CIA, reasoning that if more people knew about a proposed covert action the chances of a program leaking to the media would increase, persuaded the White House to issue a rare veto threat if the amendment passed. What is unusual is that the White House staff did not succeed in working out a compromise behind closed doors and avoiding the public spectacle of warring Democrats.
The second intelligence-related story last week involved a several-year-old secret program which CIA Director Leon Panetta allegedly learned about in late June. When Mr. Panetta asked if Congress had been briefed, he reportedly was told that former Vice President Dick Cheney had blocked such notification. Mr. Panetta is said to have then cancelled the program and immediately informed the Congressional intelligence committees. Rather than being pleased by such quick action, the House Democrats used this diligence by Mr. Panetta as an example of how the oversight system does not work and why their amendment to expand the notification process should be passed. CIA proponents used the story as an example of how highly classified programs get leaked if you tell Congress about them. The initial news stories did not, however, reveal what the canceled program had been. Only after several days of investigation did the Wall Street Journal report that the hush-hush effort, which provoked Mr. Panetta’s wrath, was a program to kill al Qaeda terrorists. Most Americans might not think it was a big secret that CIA agents were trying to kill al Qaeda members, but in the weird world of Washington intelligence, it was.
For over a decade, in three different presidencies, there has been an ongoing debate about whether and how to kill al Qaeda terrorists and what part of the U.S. government should have the mission. The 9-11 Commission report details how President Clinton decided that killing Osama bin Laden and his supporters was not a violation of the ban on assassinations, how he authorized attacks, and how the CIA failed successfully to use that authority. Several media accounts this week indicate that after 9-11, the CIA put together a more serious effort to take out terrorists, but that the program was variously activated, deactivated, and put on hold by the four directors the CIA has had since 9-11. Senior CIA officers have been reluctant for years to create hit squads, fearing that a wave of CIA assassinations of terrorists would provoke a major al Qaeda retaliation against U.S. intelligence officers worldwide. They have also, with good reason, doubted the ability of their own agency to successfully kill the right people and then escape. Some have pointed to the Israeli terrorist targeting effort as evidence that such killings can be counter-productive, providing the terrorist groups with propaganda victories. Israeli experts are themselves split on the effectiveness of their killings, but it does seem likely that it has made it harder for terrorist leaders to operate.
It is puzzling that some people object to U.S. personnel killing terrorists with sniper rifles or car bombs, but have little apparent problem with CIA and Department of Defense personnel tracking down specific terrorist leaders with Predator drones and then killing those leaders with the unmanned aircraft’s Hellfire missiles. The terrorist groups probably see little difference in how we choose to kill their leaders. The dramatically increased Predator strikes that began last October have reportedly killed much of the leadership of the Taliban, al Qaeda, and related groups operating near the Afghanistan-Pakistan border. Without those attacks, the situation in that region would undoubtedly have become much worse. One unnamed administration intelligence official recently told a reporter that the Predator hits on terrorist leaders are “the only game in town” because of the inability of the CIA to come up with any other way of effectively combating terrorists along the border. Thus, the real reason some in U.S. intelligence may not want attention given to the issue of hit squads against terrorists may be their embarrassment that for both bureaucratic reasons and lack of capability, the CIA has been unable and often unwilling to attack terrorist leaders except from the air. The two top leaders of al Qaeda have now been fair game for the CIA for a decade.
The third of the recent CIA-related stories was about the possibility that Attorney General Eric Holder may appoint a special prosecutor to investigate whether some CIA interrogators broke the law by the way in which they used waterboarding and other “enhanced interrogation techniques.” Mr. Holder is said to have been sickened by the description of what some CIA personnel may have done, as detailed in a 2004 report by CIA Inspector General John Helgerson. Most people thought the president had put the prospect of such an investigation to rest when he went to CIA headquarters and promised the staff that there would be no prosecutions. Examined carefully, however, what the president said was no one would be charged for carrying out what were, at the time, the procedures approved by President Bush and his Justice Department. The Helgerson Report apparently says some CIA personnel went well beyond even what the Bush guidelines permitted. The report is also alleged to say that little of real intelligence value was gained by the torture.
If a special prosecutor investigates, he may have to decide whether to accept the defense of “I was only following orders.” The United States rejected that defense at Nuremberg. If it rejects it again, low-level CIA staff and contractors might be tried. Or, they might be offered a way out if they detail whose orders they were following. There is, therefore, at least some potential for political-level officials being tried. The distracting and divisive frenzy that would ensue is probably one of the last things the Obama White House wishes to see. Nonetheless, as the history of special prosecutors shows, once launched, such investigators cannot be easily recalled or redirected.
It is this prospect of some CIA personnel being investigated, as well as the moves to expand Congressional oversight, that have provoked several former CIA staff and unnamed current intelligence officers to complain to the media that they are on the verge of damaging the Agency’s morale. If that morale is decreased, they warn, some intelligence officers will quit, others will become even more risk averse, and the probability of another 9-11 like attack will increase. Of course, if people keep telling CIA employees that their morale should be poor, it may become a self-fulfilling prophecy.
One thing that these recent stories have in common is that they occur in an atmosphere in Washington in which many believe that after 9-11 the previous administration, guided by the former Vice President, ignored laws, abused power, illegally hid their activities and engaged in excesses that, in the end, were counter-productive. Backers of the former Administration, of course, contend their actions were not counter-productive and, they claim, prevented attacks. In the absence of some Commission or Group of Wise People creating the definitive account of what did and did not happen, those suspicions stand and, it seems, grow. To date, however, President Obama and former Vice President Cheney are in agreement that such a truth commission would be a bad idea because it might become a diverting, dividing, and partisan circus. Others fear that it would set a precedent that would allow new administrations to criminalize the acts of their predecessors. Those objections could be addressed by a truly bipartisan panel of respected statesmen, if there still are people who can rise above partisan politics. The Commission would also need both subpoena and immunity powers to preclude criminal charges. Until we have such a Commission, these issues will linger and make it difficult for policy makers, legislators, and intelligence officers to know where the boundaries are.
Overarching all of this controversy is whether, when, and how the United States should engage in covert action. One former CIA director once told me that “CIA should do intelligence collection and analysis, not covert actions. Covert actions almost never work and usually get the Agency in trouble.” Can a nation with as many interests and enemies as we have be safe with no covert action capability? There have repeatedly been periods since World War II, when White House policy makers saw a threat so concerning that they wanted the CIA to use lethal force secretly against an enemy (the Viet Cong, the Sandanistas, al Qaeda). The Agency has often responded in a way that involved excesses, which eventually triggered investigations and recriminations. The ensuing public review often becomes partisan and reflects on the entirety of CIA. The Agency then enters into a period when it dismantles much of its covert action capability and loses its institutional memory. Then time passes, another threat emerges and the wheel is reinvented. Often that wheel is not round.
Since well over 90% of the CIA’s personnel are not engaged in covert action, but are doing the important work of intelligence collection and analysis, this cycle of contentiousness suggests that perhaps covert action should be done by someone else. We need a professional intelligence gathering and analysis organization and it would be better if that agency were not tied to, prejudiced by, and often tainted with a connection to covert action. If we are capable as a nation of learning from history, we should also take this opportunity to decide that covert operations should be done rarely, and then only by a special component of the military and perhaps by a small, separate, civilian agency under the joint supervision of a group of experienced administration and bi-partisan Congressional overseers. Democracy and the rule of law are not inherently incompatible with self defense involving a secret intelligence service. Its just that the way we do it now does not work well.