The CIA's role in breaking our
laws
Washington Post
Covert CIA Program Withstands New Furor
By Dana Priest
Washington Post Staff Writer
Friday, December 30, 2005; A01
The effort President Bush authorized shortly after Sept. 11, 2001, to fight
al Qaeda has grown into the largest CIA covert action program since the height
of the Cold War, expanding in size and ambition despite a growing outcry at
home and abroad over its clandestine tactics, according to former and current
intelligence officials and congressional and administration sources.
The broad-based effort, known within the agency by the initials GST, is
compartmentalized into dozens of highly classified individual programs, details
of which are known mainly to those directly involved.
GST includes programs allowing the CIA to capture al Qaeda suspects with
help from foreign intelligence services, to maintain secret prisons abroad, to
use interrogation techniques that some lawyers say violate international
treaties, and to maintain a fleet of aircraft to move detainees around the
globe. Other compartments within GST give the CIA enhanced ability to mine
international financial records and eavesdrop on suspects anywhere in the
world.
Over the past two years, as aspects of this umbrella effort have burst into
public view, the revelations have prompted protests and official investigations
in countries that work with the United States, as well as condemnation by
international human rights activists and criticism by members of Congress.
Still, virtually all the programs continue to operate largely as they were
set up, according to current and former officials. These sources say Bush's
personal commitment to maintaining the GST program and his belief in its
legality have been key to resisting any pressure to change course.
"In the past, presidents set up buffers to distance themselves from covert
action," said A. John Radsan, assistant general counsel at the CIA from 2002 to
2004. "But this president, who is breaking down the boundaries between covert
action and conventional war, seems to relish the secret findings and the dirty
details of operations."
The administration's decisions to rely on a small circle of lawyers for
legal interpretations that justify the CIA's covert programs and not to consult
widely with Congress on them have also helped insulate the efforts from the
growing furor, said several sources who have been involved.
Bush has never publicly confirmed the existence of a covert program, but he
was recently forced to defend the approach in general terms, citing his wartime
responsibilities to protect the nation. In November, responding to questions
about the CIA's clandestine prisons, he said the nation must defend against an
enemy that "lurks and plots and plans and wants to hurt America again."
This month he went into more detail, defending the National Security
Agency's warrantless eavesdropping within the United States. That program is
separate from the GST program, but three lawyers involved said the legal
rationale for the NSA program is essentially the same one used to support GST,
which is an abbreviation of a classified code name for the umbrella covert
action program.
The administration contends it is still acting in self-defense after the
Sept. 11 attacks, that the battlefield is worldwide, and that everything it has
approved is consistent with the demands made by Congress on Sept. 14, 2001,
when it passed a resolution authorizing "all necessary and appropriate force
against those nations, organizations, or persons [the president] determines
planned, authorized, committed, or aided the terrorist attacks."
"Everything is done in the name of self-defense, so they can do anything
because nothing is forbidden in the war powers act," said one official who was
briefed on the CIA's original cover program and who is skeptical of its legal
underpinnings. "It's an amazing legal justification that allows them to do
anything," said the official, who like others spoke on the condition of
anonymity because of the sensitivity of the issues.
The interpretation undergirds the administration's determination not to
waver under public protests or the threat of legislative action. For example,
after The Washington Post disclosed the existence of secret prisons in several
Eastern European democracies, the CIA closed them down because of an uproar in
Europe. But the detainees were moved elsewhere to similar CIA prisons, referred
to as "black sites" in classified documents.
The CIA has stuck with its overall approaches, defending and in some cases
refining them. The agency is working to establish procedures in the event a
prisoner dies in custody. One proposal circulating among mid-level officers
calls for rushing in a CIA pathologist to perform an autopsy and then quickly
burning the body, according to two sources.
In June, the CIA temporarily suspended its interrogation program after a
controversy over the disclosure of an Aug. 1, 2002, memorandum from the Justice
Department's Office of Legal Counsel that defined torture in an unconventional
way. The White House withdrew and replaced the memo. But the hold on the CIA's
interrogation activities was eventually removed, several intelligence officials
said.
The authorized techniques include "waterboarding" and "water dousing," both
meant to make prisoners think they are drowning; hard slapping; isolation;
sleep deprivation; liquid diets; and stress positions -- often used,
intelligence officials say, in combination to enhance the effect.
Behind the scenes, CIA Director Porter J. Goss -- until last year the
Republican chairman of the House intelligence committee -- has gathered
ammunition to defend the program.
After a CIA inspector general's report in the spring of 2004 stated that
some authorized interrogation techniques violated international law, Goss asked
two national security experts to study the program's effectiveness.
Gardner Peckham, an adviser to then-House Speaker Newt Gingrich (R-Ga.),
concluded that the interrogation techniques had been effective, said an
intelligence official familiar with the result. John J. Hamre, deputy defense
secretary under President Bill Clinton, offered a more ambiguous conclusion.
Both declined to comment.
The only apparent roadblock that could yet prompt significant change in the
CIA's approach is a law passed this month prohibiting torture and cruel and
inhumane treatment of prisoners in U.S. custody, including in CIA hands.
It is still unclear how the law, sponsored by Sen. John McCain (R-Ariz.),
will be implemented. But two intelligence experts said the CIA will be required
to draw up clear guidelines and to get all special interrogation techniques
approved by a wider range of government lawyers who hold a more conventional
interpretation of international treaty obligations.
"The executive branch will not pull back unless it has to," said a former
Justice Department lawyer involved in the initial discussions on executive
power. "Because if it pulls back unilaterally and another attack occurs, it
will get blamed."
The Origins
The top-secret presidential finding Bush signed six days after the Sept. 11
attacks empowered the intelligence agencies in a way not seen since World War
II, and it ordered them to create what would become the GST program.
Written findings are required by the National Security Act of 1947 before
the CIA can undertake a covert action. A covert action may not violate the
Constitution or any U.S. law. But such actions can, and often do, violate laws
of the foreign countries in which they take place, said intelligence
experts.
The CIA faced the day after the 2001 attacks with few al Qaeda informants, a
tiny paramilitary division and no interrogators, much less a system for
transporting terrorism suspects and keeping them hidden for interrogation.
Besides fighting the war in Afghanistan, the agency set about to put in
place an intelligence-gathering network that relies heavily on foreign security
services and their deeper knowledge of local terrorist groups. With billions of
dollars appropriated each year by Congress, the CIA has established joint
counterterrorism intelligence centers in more than two dozen countries, and it
has enlisted at least eight countries, including several in Eastern Europe, to
allow secret prisons on their soil.
Working behind the scenes, the CIA has gained approval from foreign
governments to whisk terrorism suspects off the streets or out of police
custody into a clandestine prison system that includes the CIA's black sites
and facilities run by intelligence agencies in other countries.
The presidential finding also permitted the CIA to create paramilitary teams
to hunt and kill designated individuals anywhere in the world, according to a
dozen current and former intelligence officials and congressional and executive
branch sources.
In four years, the GST has become larger than the CIA's covert action
programs in Afghanistan and Central America in the 1980s, according to current
and former intelligence officials. Indeed, the CIA, working with foreign
counterparts, has been responsible for virtually all of the success the United
States has had in capturing or killing al Qaeda leaders since Sept. 11,
2001.
Bush delegated much of the day-to-day decision-making and the creation of
individual components to then-CIA Director George J. Tenet, according to
congressional and intelligence officials who were briefed on the finding at the
time.
"George could decide, even on killings," one of these officials said,
referring to Tenet. "That was pushed down to him. George had the authority on
who was going to get it."
The Lawyers
Tenet, according to half a dozen former intelligence officials, delegated
most of the decision making on lethal action to the CIA's Counterterrorist
Center. Killing an al Qaeda leader with a Hellfire missile fired from a
remote-controlled drone might have been considered assassination in a prior era
and therefore banned by law.
But after Sept. 11, four former government lawyers said, it was classified
as an act of self-defense and therefore was not an assassination. "If it was an
al Qaeda person, it wouldn't be an assassination," said one lawyer
involved.
This month, Pakistani intelligence sources said, Hamza Rabia, a top
operational planner for al Qaeda, was killed along with four others by a
missile fired by U.S. operatives using an unmanned Predator drone, although
there were conflicting reports on whether a missile was used. In May, another
al Qaeda member, Haitham Yemeni, was reported killed by a Predator drone
missile in northwest Pakistan.
Refining what constitutes an assassination was just one of many legal
interpretations made by Bush administration lawyers. Time and again, the
administration asked government lawyers to draw up new rules and reinterpret
old ones to approve activities once banned or discouraged under the
congressional reforms beginning in the 1970s, according to these officials and
seven lawyers who once worked on these matters.
Gen. Michael V. Hayden, deputy director of national intelligence, has
described the administration's philosophy in public and private meetings,
including a session with human rights groups.
"We're going to live on the edge," Hayden told the groups, according to
notes taken by Human Rights Watch and confirmed by Hayden's office. "My spikes
will have chalk on them. . . . We're pretty aggressive within the law. As a
professional, I'm troubled if I'm not using the full authority allowed by
law."
Not stopping another attack not only will be a professional failure, he
argued, but also "will move the line" again on acceptable legal limits to
counterterrorism.
When the CIA wanted new rules for interrogating important terrorism suspects
the White House gave the task to a small group of lawyers within the Justice
Department's Office of Legal Counsel who believed in an aggressive
interpretation of presidential power.
The White House tightened the circle of participants involved in these most
sensitive new areas. It initially cut out the State Department's general
counsel, most of the judge advocates general of the military services and the
Justice Department's criminal division, which traditionally dealt with
international terrorism.
"The Bush administration did not seek a broad debate on whether
commander-in-chief powers can trump international conventions and domestic
statutes in our struggle against terrorism," said Radsan, the former CIA
lawyer, who is a professor at William Mitchell College of Law in St. Paul,
Minn. "They could have separated the big question from classified details to
operations and had an open debate. Instead, an inner circle of lawyers and
advisers worked around the dissenters in the administration and one-upped each
other with extreme arguments."
At the CIA, the White House allowed the general counsel's job, traditionally
filled from outside the CIA by someone who functioned in a sort of oversight
role, to be held by John Rizzo, a career CIA lawyer with a fondness for flashy
suits and ties who worked for years in the Directorate of Operations, or
D.O.
"John Rizzo is a classic D.O. lawyer. He understands the culture, the
intelligence business," Radsan said. "He admires the case officers. And they
trust him to work out tough issues in the gray with them. He is like a
corporate lawyer who knows how to make the deal happen."
These lawyers have written legal justifications for holding suspects picked
up outside Afghanistan without a court order, without granting traditional
legal rights and without giving them access to the International Committee of
the Red Cross.
CIA and Office of Legal Counsel lawyers also determined that it was legal
for suspects to be secretly detained in one country and transferred to another
for the purposes of interrogation and detention -- a process known as
"rendition."
Lawyers involved in the decision making acknowledge the uncharted nature of
their work. "I did what I thought the best reading of the law was," one lawyer
said. "These lines are not obvious. It was a judgment."
Credit and Blame
One way the White House limited debate over its program was to virtually
shut out Congress during the early years. Congress, for its part, raised only
weak and sporadic protests. The administration sometimes refused to give the
committees charged with overseeing intelligence agencies the details they
requested. It also cut the number of members of Congress routinely briefed on
these matters, usually to four members -- the chairmen and ranking Democratic
members of the House and Senate intelligence panels.
John D. Rockefeller IV (W.Va.), ranking Democrat on the Senate Select
Committee on Intelligence, complained in a 2003 letter to Vice President Cheney
that his briefing on the NSA eavesdropping was unsatisfactory. "Given the
security restrictions associated with this information, and my inability to
consult staff or counsel on my own, I feel unable to fully evaluate, much less
endorse, these activities," he wrote.
Rockefeller made similar complaints about the CIA's refusal to allow the
full committee to see the backup material supporting a skeptical report by the
CIA inspector general in 2004 on detentions and interrogations that questioned
the legal basis for renditions.
Some former CIA officers now worry that the agency alone will be held
responsible for actions authorized by Bush and approved by the White House's
lawyers.
Attacking the CIA is common when covert programs are exposed and
controversial, said Gerald Haines, a former CIA historian who is a scholar in
residence at the University of Virginia. "It seems to me the agency is taking
the brunt of all the recent criticism."
Duane R. "Dewey" Clarridge, who directed the CIA's covert efforts to support
the Nicaraguan contras in the 1980s, said the nature of CIA work overseas is,
and should be, risky and sometimes ugly. "You have a spy agency because the spy
agency is going to break laws overseas. If you don't want it to do those
dastardly things, don't have it. You can have the State Department."
But a former CIA officer said the agency "lost its way" after Sept. 11,
rarely refusing or questioning an administration request. The unorthodox
measures "have got to be flushed out of the system," the former officer said.
"That's how it works in this country."
Researcher Julie Tate contributed to this report.
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