The Washington Independent - U.S. news and politics - washingtonindependent.com: Stories by Milt Bearden

Who's Minding the CIA?

Milt Bearden — Mon, 28 Jan 2008 05:17:15 GMT

Photo: Sen. Kit Bond (R-Mo.) with Intelligence Committee chairman Sen. Jay Rockefeller (D-WVa.) after a briefing with CIA Director Michael Hayden on the destroyed CIA interrogation tapes. (Lauren Burke, WDCPix)

Illustration by: Matt Mahurin

American intelligence has a serious problem.

But it is not that the former head of the Central Intelligence Agency’s clandestine services, Jose Rodriquez, allegedly destroyed, in 2005, the videotapes of the enhanced interrogations of terrorist detainees. No, the real problem is that institutional oversight of the intelligence community has failed. It is dysfunctional, perhaps irreparably so. There is no adult supervision of American intelligence or how the White House chooses to use it.

Like many Washington stories, the fury over the destruction of the videotapes of CIA interrogations is misdirected. It has diverted to the usual demands to know who did what, how far up the ladder the blame game can be played, and when will we get to see a perp walk on cable news. Some fine American intelligence officers have lawyered up, and are looking ahead to big legal fees. Congressional and media outrage are cloaked in the usual sanctimony of a quest for accountability. Yet the outrage on Capitol Hill seems oddly muted -- as if there is some bipartisan agreement in hoping it will go away. Perhaps, like many Washington dramas, this one, too, will just veer off and, ultimately, fade away.

That the tapes actually existed, but were destroyed under such questionable circumstances, makes the story all the more enticing; the perceptions of what was on the tapes are now limited only by the imagination. When I first heard that the so-called enhanced interrogation techniques had been videotaped, my first reaction was, “what were they thinking?" Is there simply no adult supervision left in Washington? How did we get from the glowing promise of a Pax Americana when the Berlin Wall fell to this sorry state?”

In short order, we have passed such unaccustomed American milestones as preemptive war, Abu Ghraib, enhanced interrogation techniques, allegations of torture and legal opinions downgrading the relevance of the Geneva Conventions. Americans and the world have been told repeatedly that “we don’t torture”, but such denials have fallen into the same sorting bin as Richard M. Nixon’s declaration, “I am not a crook.” History will only remember “torture” and “crook.”

The House and Senate committees that now oversee intelligence were established by Congress more than three decades ago, to deal with problems rooted in the abuse of executive power and the CIA. In the last 30 years, the system has worked only when government was split between the White House and Congress -- and then only moderately well. It has worked far less well -- or not at all -- during periods of one-party rule, like the first six years of the Bush administration.

But other practices undermine attempts to maintain strong intelligence oversight. Under the rules, particularly sensitive activities, including most covert actions ordered by the president, can be briefed to just the chairs and ranking members of the two committees – the “gang of four.” These politically sensitive briefings are sometimes expanded to include the majority and minority leaders of both house of Congress -- a so-called “gang of eight.” While perhaps not initially intended to weaken the oversight system, briefings to the gangs of four or eight now regularly do just that.

In such limited briefings, it is the administration’s call whether congressional staffers may be present, or even if the members are allowed to take notes. Without notes, transcripts or the recollections of congressional staffers, the result is, at best, confusion. This is not to suggest that members of Congress are either clueless or disinterested -- rather, it is an acknowledgement that most members, when separated from their staffs and the written record, are, to be kind, disadvantaged.

Their disadvantage is compounded by the fact that the intelligence briefers are in control of the meeting agenda. They determine what facts are presented and in what light. In times of fear-driven national distress, like now, a briefing on getting tough with the people who wish us harm may be made to sound eminently reasonable -- regardless of the realities involved in the fine print. If, later, there is an intelligence flap, the administration can say that Congress was briefed and on board. The members of Congress can cry foul. It all soon deteriorates into a “he said, she said” standoff.

This may be what has happened in the case of the destroyed videotapes. It appears there was, indeed, a “gang of eight” briefing on the enhanced interrogation techniques -- but without notes or transcripts to fall back on. The Democrats have cried foul, but only faintly, since the administration and the Republicans can rightly say that they were briefed. We should not expect the Democrats to pursue the issue any more than we should expect the Justice Department to appoint a special prosecutor. Why investigate yourself? That could take a little courage, something in short supply on Capitol Hill.

Regardless of how the tapes case plays out, it is time to end the sleight-of-hand nonsense we now call oversight. It is time to give it some teeth -- not only to keep our intelligence activities in line with our fundamental beliefs, but also to protect the men and women in the intelligence community. With the reasonable expectation that stretches of effectively one-party rule will occur, entirely new solutions will be needed. (We would be prudent to assume that there would be little difference if the Democrats take both ends of Pennsylvania Avenue next January. One-party rule has its way of corrupting.)

One might consider creating a select, non-partisan, independent committee outside Congress to augment the committees in the House and the Senate. Such a committee could be open to the “gang of eight,” and have a retired senior official from each of CIA, FBI, and the State, Defense and Justice Departments. There might also be a sitting federal judge, perhaps appointed by a previous administration.

In those instances where sensitive intelligence activities are to be briefed to the gangs of four or eight, the committee would also be briefed. It would have standing authority to maintain transcripts of the briefings. If there were disputes over any activity briefed to the committee by the White House, the committee would have the authority to take the issue to the full oversight committees of the House and Senate. It would also have the authority to take the contested issues to the White House. Any variation of this approach could be considered, as long as the result puts us back on course.

The beneficiaries of reestablishing genuine intelligence oversight would not only be the overall foreign policy of the United States and its badly tarnished international reputation. It would also benefit the men and women of the intelligence community, who, without some changes, will ultimately be left holding the bag. Twenty-six of their colleagues were indicted last year by NATO ally Italy. More will surely follow.

Milt Bearden, a 30-year veteran in the C.I.A.'s Directorate of Operations, served as senior manager for clandestine operations. He is the co-author with James Risen of ''The Main Enemy: The Inside Story of the C.I.A.'s Final Showdown with the K.G.B.''

Truth & Consequences for CIA on Torture

Milt Bearden — Tue, 01 Jul 2008 13:28:19 GMT

The Truth is Out

Over the last several months, there has been a gradual, but unrelenting, outing of the highest level U.S. government involvement in the sordid business of torture. CIA Director Michael V. Hayden admitted, in his February testimony before Congress, that the Central Intelligence Agency used a technique known as waterboarding on three high-profile Al Qaeda detainees. He also said the CIA had not used the technique in five years -- though the administration seems to be asserting that the agency can use it, when necessary.

President George W. Bush told ABC News in April, "I'm aware our national-security team met on this issue. And I approved.” The president was referring to reports that the National Security Council’s “principals committee” -- the vice president, the secretaries of state and defense, the head of the NSC and the CIA director -- discussed and approved the so-called “enhanced interrogation techniques.” Secretary of State Condoleezza Rice, speaking with Google employees in Mountain View, Calif., in May, said, “after Sept. 11, whatever was legal in the face of not just the attacks of Sept. 11, but the anthrax attacks that happened, we were in an environment in which saving America from the next attack was paramount.” She added, “there has been a long evolution in American policy about detainees and about interrogations...we now have in place a law that was not there in 2002 and 2003.”

In just the last few weeks, a parade of White House, Defense Dept. and CIA lawyers have squirmed before hostile Congressional committees, giving testimony eerie in its clinical treatment of what most of the world thinks is torture. The hearings produced countless stunning quotes, but one attributed to a CIA lawyer stands out: "If the detainee dies, you're doing it wrong."

Indeed, they have been doing it wrong. But they all say they are doing it for us -- for the protection of the American people.

Throughout this ugly drama, U.S. leaders have assured the public that the extreme interrogation measures used on detainees have thwarted acts of terrorist and saved thousands of American lives. The trouble with such claims is that professionals who know something of interrogation or intelligence don’t believe them. This is not just because the old hands overwhelmingly believe that torture doesn’t work -- it doesn’t -- but also because they know that torture creates more terrorists and fosters more acts of terror than it could possibly neutralize.

The administration’s claims of having “saved thousands of Americans” can be dismissed out of hand because credible evidence has never been offered -- not even an authoritative leak of any major terrorist operation interdicted based on information gathered from these interrogations in the past seven years. All the public gets is repeated references to Jose Padilla, the Lakawanna Six, the Liberty Seven and the Library Tower operation in Los Angeles. If those slapstick episodes are the true character of the threat, then maybe we’ll be okay after all.

When challenged on the lack of a game-changing example of a derailed operation, administration officials usually say that the need to protect sources and methods prevents revealing just how enhanced interrogation techniques have saved so many thousands of Americans. But it is irresponsible for any administration not to tell a credible story that would convince critics at home and abroad that this torture has served some useful purpose.

More damage is done to U.S. national security by “protecting” the sources and methods than by revealing a couple. So why not just sacrifice a few sources or methods to get at least Washington's closest friends to cut us some slack, and perhaps even knock some foes off balance?

Certainly, the Reagan administration understood the rational limits of protecting intelligence sources and methods when it confronted skeptical world opinion after the U.S. attack on Tripoli in retaliation for the 1986 bombing at the La Belle Disco in Berlin. That terrorist act had killed two U.S. servicemen and a Turkish woman, and injured scores of others

Shortly after the retaliatory strike, Washington produced an intercepted and decoded message sent by the Libyan Peoples Bureau in East Berlin. It said:

At 1:30 in the morning one of the acts was carried out with success, without leaving a trace behind.

Washington was willing to give up a sensitive intelligence method -- its ability to break the Libyan codes But once the rest of the world absorbed this, international grumbling subsided and many considered the retaliation against Tripoli justified.

Now for the consequences

Though the Defense Dept. under Secretary Donald H. Rumsfeld was intimately involved in the mistreatment of detainees, that same department under Robert Gates has correctly opted out of the torture business. It is now standing by time-honored U.S. military regulations and the Geneva Conventions. The FBI, from the outset of the war on terror in 2001, rejected the use of torture. Some FBI officers, troubled by what they were seeing, began keeping records of abuses by other agencies -- the so-called “war crimes files.”

The CIA, sadly, is now the sole U.S. government agency directed by the president to keep enhanced interrogation techniques on the table. It seems that while the U.S. military and the FBI have just said no, and the CIA, once again, has been left holding the bag.

This could not be good for a troubled agency with important work to do. While the Bush administration is running out the clock, senior officials from every agency even tangentially involved in this nasty affair are shinnying down the hawsers as fast as they can. By mid-afternoon of Jan. 20, 2009, all the high-level enablers and protectors in the administration will have vanished -- and those who executed the orders in the CIA and the Rumsfeld Defense Dept. will be facing the consequences pretty much alone.

Consider that there already are 26 mostly CIA employees being tried in absentia in Italy, a NATO ally, for the kidnapping and rendition of Muslim cleric Hassan Mustafa Osama Nasr -- also known as Abu Omar. Nasr was snatched off a Milan street in February 2003, and rendered to Egypt for interrogation by Egyptian authorities. In Germany, another NATO ally, a German citizen, Khalid al-Masri, who was flown by the CIA from Macedonia to Afghanistan in 2003, and released in 2004, after allegedly being tortured, has persistently pushed his case in both German and U.S. courts. If al-Masri’s case ultimately gets a hearing, he will seek prosecution against 13 Americans, including CIA employees he alleges were involved in his kidnapping. Virtually all now admit his was a case of mistaken identity.

These two cases are important because they are likely only the first of many. Human-rights organizations and foreign prosecutors are building databases on U.S. officials involved in activities considered violations under international law. It may be only a matter of time before indictments are drawn up for the arrests of targeted Americans when they travel abroad.

Such indictments might be kept secret, so it would be wise for the “usual suspects,” who certainly know who they are, to stay close to home. The highest level U.S. officials may dodge the bullets, at least initially, but the next level down should be worried -- very worried.

This process will be accelerated if foreign prosecutors determine that justice is not being served in the United States; if, for example, a prosecutor in any member country of the International Criminal Court concluded that Washington would not investigate and prosecute U.S. officials who had committed what would be considered criminal violations of international law (Common Article 3 of the Geneva Conventions). Foreign prosecutors would then feel unconstrained, and might go forward with their own prosecutions under the controversial concept of universal jurisdiction. The next time any one of the by now familiar faces steps off a plane in Europe, he or she ought to be prepared for a long stay.

Aside from the celebrated case of Gen. Agusto Pinochet a decade ago -- when the former Chilean president was arrested on a Spanish warrant for crimes against humanity -- there are more recent cases of universal jurisdiction. Rwandan Maj. Gen. Emmanuel Karake Karenzi, the current U.N. deputy force commander in Darfur, was charged by a Spanish magistrate in February with responsibility in the killing of thousands of ethnic Hutus during the mid-1990s.

And former Democratic Republic of the Congo Vice President Jean-Pierre Bemba was arrested in Belgium on May 24 on an International Criminal Court warrant on charges of war crimes and crimes against humanity. This list will grow -- and Americans may ultimately be the subject of similar warrants.

Perversely, it is the U.S. judicial system that could forestall this foreign prosecution. If Congress and the Justice Dept. launch investigations into U.S. officials' actions in detainee cases, foreign prosecutors would likely defer to the U.S. legal system.

Bigger Consequences

Either way, there will be consequences. And those consequences will be most challenging for the CIA.

There have been two operational philosophies within the CIA on the question of enhanced interrogation. First, there are the old hands, who are against anything that smacks of torture because it doesn’t work and, ultimately, demeans American values. Then there are the “take off the gloves” group that emerged from obscurity to agency prominence on Sept. 12, 2001.

The former group studiously avoided all association with extraordinary renditions or enhanced interrogations, to the extent that one former very senior officer regularly avoided even attending meetings where these topics would be discussed. The latter group, however, the bare-knuckle crowd, took to the task with gusto -- and encouragement from the highest levels of the Bush administration. Many in this group have left the CIA, while others are still in service. But all are vulnerable.

While it is clear that the reasonable men and women at CIA have prevailed, and that we can take Hayden at his word when he says that CIA “doesn’t torture,” the question is: how much does that matter at this late date?

In January, when real investigations by Congress and the Justice Dept. might begin, the CIA could be turned on its head. It could well be duck-and-cover at its worst. There will be accusations, counter-accusations and denials unseen in the six decades of the CIA’s existence. Even those without guilt might face the prospect of being impoverished by legal fees.

The Widening Rough Neighborhood

Operationally, the torture story has already had a chilling effect in keeping CIA officers off the streets and out of the back alleys of a dangerous world. There is a deep and realistic concern that they could be captured and tortured themselves.

Old hands will recall the case of the CIA Beirut station chief, William Buckley, taken hostage in Beirut in 1984 by Hezbollah or Islamic Jihad, and held until his death there in 1985. An operational assignment to Beirut after the Buckley affair was a personal security nightmare -- but the heightened concerns were limited to that rough neighborhood. CIA officers could still do abroad what they did best -- move around and understand, perhaps as well as any, the lay of the land.

Today, for CIA officers, and literally all U.S. officials abroad, much of the world resembles Beirut in the mid-1980s. A look at any U.S. embassy must be through crash barriers and razor wire. These serve not only to keep America’s adversaries out, but to keep American officers in, crippling the intelligence and any foreign-policy missions at the worst possible time.

It may be impossible for the next administration to fix what has happened to the CIA in the last seven years. It may be a broken brand. Perhaps the only way to proceed next January will be to start over afresh, with a new intelligence structure and new institutions.

But whatever the solution for getting U.S. intelligence collection abroad back on track, it should begin with the formal denunciation by the next administration of the use of torture by any U.S. agency -- including the CIA. It might also encompass a balanced investigation into past abuses, but this time with a top-down targeting rather than just throwing a few low-level suspects to the wolves.

Milt Bearden, a 30-year veteran in the CIA's Directorate of Operations, served as senior manager for clandestine operations. He is the author, with James Risen, of "The Main Enemy: The Inside Story of the CIA's Final Showdown With the KGB."