The Need for an Inquiry into the CIA

The New York Times, in writing about the appointment of Leon Panetta, captures some of the internal sentiment regarding an investigation into the CIA:

On the day he walks into his seventh-floor office, if confirmed by the Senate, Mr. Panetta will be managing employees who are under federal investigation for participating in the destruction of videotapes recording the interrogations of two prisoners suspected of being members of Al Qaeda. The prosecutor in the case, John H. Durham, recently told a federal judge that he would need until the end of February to interview witnesses as he considers whether to bring criminal charges in the case.

Beyond that inquiry, Mr. Panetta is facing the prospect that Democratic lawmakers might establish an independent commission tasked with looking into the Bush administration’s counterterrorism policies, including the roles played by C.I.A. employees.

The number of employees who would be targets of such a commission is relatively small, and many within the agency were never comfortable with C.I.A. officers acting as jailers. Still, some experts said any public fact-finding inquiry could be perceived within the C.I.A. as a witch hunt.

“If Panetta starts trying to feed people to that commission, his tenure at C.I.A. will be over,” said Mark M. Lowenthal, a former senior C.I.A. official and an adjunct professor at Columbia University.

“If it happens, C.I.A. people are not going to start plotting against the president, but they are going to withdraw from taking risks, and then the C.I.A. becomes useless to the president,” Mr. Lowenthal said.

It is fairly astonishing, coming weeks after the publication of the Senate Armed Services Committee Inquiry Into the Treatment of Detainees in U.S. Custody, that the CIA is this threatened by an independent commission. Or that it might seem at all avoidable. Let's look at the way the CIA is described in the Senate Armed Services Inquiry Report:

From page 5:


(U) Mr. Haynes was not the only senior official considering new interrogation techniques for use against detainees. Members of the President’s Cabinet and other senior officials attended meetings in the White House where specific interrogation techniques were discussed. Secretary of State Condoleezza Rice, who was then the National Security Advisor, said that, "in the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists." Secretary Rice said that she asked Director of Central Intelligence George Tenet to brief NSC Principals on the program and asked the Attorney General John Ashcroft "personally to review and confirm the legal advice prepared by the Office of Legal Counsel." She also said that Secretary of Defense Donald Rumsfeld participated in the NSC review of CIA’s program.

from page 6:


(U) The other OLC opinion issued on August 1, 2002 is known commonly as the Second Bybee memo. That opinion, which responded to a request from the CIA, addressed the legality of specific interrogation tactics. While the full list of techniques remains classified, a publicly released CIA document indicates that waterboarding was among those analyzed and approved. CIA Director General Michael Hayden stated in public testimony before the Senate Intelligence Committee on February 5, 2008 that waterboarding was used by the CIA. And Steven Bradbury, the current Assistant Attorney General of the OLC, testified before the House Judiciary Committee on February 14, 2008 that the CIA’s use of waterboarding was "adapted from the SERE training program."


(U) In fact, Jay Bybee the Assistant Attorney General who signed the two OLC legal opinions said that he saw an assessment of the psychological effects of military resistance training in July 2002 in meetings in his office with John Yoo and two other OLC attorneys. Judge Bybee said that he used that assessment to inform the August 1, 2002 OLC legal opinion that has yet to be publicly released. Judge Bybee also recalled discussing detainee interrogations in a meeting with Attorney General John Ashcroft and John Yoo in late July 2002, prior to signing the OLC opinions. Mr. Bellinger, the NSC Legal Advisor, said that "the NSC’s Principals reviewed CIA’s proposed program on several occasions in 2002 and 2003" and that he "expressed concern that the proposed CIA interrogation techniques comply with applicable U.S. law, including our international obligations."

An entire section of the Report is entitled, "JPRA and CIA Influence Department of Defense Interrogation Policies (U)"

from page 7:


(U) JPRA was not the only outside organization that provided advice to GTMO on aggressive techniques. On October 2, 2002, Jonathan Fredman, who was chief counsel to the CIA’s CounterTerrorist Center, attended a meeting of GTMO staff. Minutes of that meeting indicate that it was dominated by a discussion of aggressive interrogation techniques including sleep deprivation, death threats, and waterboarding, which was discussed in relation to its use in SERE training. Mr. Fredman’s advice to GTMO on applicable legal obligations was similar to the analysis of those obligations in OLC’s first Bybee memo. According to the meeting minutes, Mr. Fredman said that "the language of the statutes is written vaguely… Severe physical pain described as anything causing permanent damage to major organs or body parts. Mental torture [is] described as anything leading to permanent, profound damage to the senses or personality." Mr. Fredman said simply "It is basically subject to perception. If the detainee dies you’re doing it wrong."

from page 16:

Conclusion 2: Members of the President’s Cabinet and other senior officials participated in meetings inside the White House in 2002 and 2003 where specific interrogation techniques were discussed. National Security Council Principals reviewed the CIA’s interrogation program during that period.

Conclusion 6: The Central Intelligence Agency’s (CIA) interrogation program included at least one SERE training technique, waterboarding. Senior Administration lawyers, including Alberto Gonzales, Counsel to the President, and David Addington, Counsel to the Vice President, were consulted on the development of legal analysis of CIA interrogation techniques. Legal opinions
subsequently issued by the Department of Justice’s Office of Legal Counsel (OLC) interpreted legal obligations under U.S. anti-torture laws and determined the legality of CIA interrogation techniques. Those OLC opinions distorted the meaning and intent of anti-torture laws, rationalized the abuse of detainees in U.S. custody and influenced Department of Defense determinations as to what interrogation techniques were legal for use during interrogations conducted by U.S. military personnel.

[emphasis supplied]
+++++

The Inquiry report contradicts the somewhat passive role of the CIA forwarded by CIA folks and people like Senator Feinstein (who is rapidly emerging as an enemy of change). The AP quotes Feinstein today:

"Senate Intelligence Committee Chairman Dianne Feinstein told The Associated
Press in an interview this week that there is a clear distinction between those
who made the policies and those who carried them out.
'They (the CIA) carry out orders and the orders come from the (National Security Council) and the White House, so there's not a lot of policy debate that goes on there," she said. "We're going to continue our looking into the situation and I think that is up to the administration and the director.'"

There are at least three issues I have with that statement. One - the Senate Armed Services Committee's report suggests that the CIA played an active role - perhaps it was the CIA who sought permission to use torture on detainees. The CIA requested a legal opinion on its interrogation techniques. And the report says that, according to Condoleezza Rice, "in the spring of 2002, CIA sought policy approval from the National Security Council (NSC) to begin an interrogation program for high-level al-Qaida terrorists." And someone must have authorized CIA lawyer Fredman's meeting with GTMO staff. The Report makes it seem at least plausible that the CIA actively crafted policy with the administration.

My second issue is with those who developed and approved Standard Operation Procedures (SOPs) for interrogation within the CIA ranks. The Senate Armed Services' report describes the process on the military/GTMO end on page 10:

Following the Secretary’s December 2, 2002 authorization, senior
staff at GTMO began drafting a Standard Operating Procedure (SOP)
specifically for the use of SERE techniques in interrogations. The draft SOP
itself stated that "The premise behind this is that the interrogation tactics
used at U.S. military SERE schools are appropriate for use in real-world
interrogations."

[emphasis supplied]

Obviously to ensure the success and "legality" of their maneuvers, CIA staff would have had to create a set of rules and routines for case officers and their staff to follow. In doing so, the staff involved should have appreciated their serious level of responsibility. We need to find out who wrote SOPs for the CIA and who approved them. We have a meager understanding of how this happened in the military; if only in the spirit of fairness, we must discover how similar events transpired in the CIA.

My third issue is with the complete unwillingness of Feinstein to apply the "command responsibility" standard. If the Executive Branch suggests an entire agency should ignore international law, is no one in that agency to be held responsible for the agency's complete capitulation? If a military commander is responsible for the behavior of her unit, is not SOMEONE in the CIA responsible for the behavior of an entire agency?

The principle of command responsibility "holds a superior legally responsible for human rights abuses by subordinates if the official knew or should have known about them and failed to prevent them or punish those who committed them." (Foreign Policy in Focus). Examine this chart of the CIA's chain of command (pre 9/11 commission reforms). This chart suggests that we lay all that happened under the umbrella of Operations at the feet of the Executive Secretary, the Deputy Executive Director and the Executive Director, and the Deputy Director and Director of the CIA. They implemented Bush policies, and they monitored their failures and successes.

Finally, it is in the long term political interest of the CIA to support a Congressional inquiry into their involvement in Bush interrogation policy. You may've noticed the source that suggests the CIA came to the NSC looking for approval was Rice. Cheney's narrative is similar, in recent interviews:

Soon after the Sept. 11 attacks, Cheney said, the CIA "in effect came in and
wanted to know what they could and couldn't do. And they talked to me, as well
as others, to explain what they wanted to do. And I supported it."

If the CIA would like its view that it was ignored and abused by the Bush admin. to be supported by anything more than wishful thinking, it will encourage an official investigation into how we went to war in Iraq and how our interrogation and detention policy developed. Otherwise the CIA's political enemies will make whatever claims they wish to make - and no official record will be there to call them out.

A full investigation of the CIA is necessary. It should begin early this year, and we must demand that it begins early this year.

The broader CIA critique

In Glenn Greenwald's recent Salon article, "Some observations after being involved in a Fox News report," he discusses his attempt to set the record straight when it comes to the left blogs' John Brennan critique. I believe he is mostly right when he says:

"Specifically, the case against John Brennan as CIA Director - from the
beginning - was based almost exclusively on comments he made on television,
after he left the CIA, in which he supported rendition and what he called
'enhanced interrogation tactics.'" [bolding Greenwald's]

That was indeed the basis for the Brennan critique. John Brennan, basically, did this to himself - he was the one who stood up and acted as a mouthpiece for the Bush administration's tactics. The mass media doesn't understand this for some reason. Despite the fact that Brennan's statements are out there for the world to see, the MSM did little to present them to their viewers/readers. But even if Brennan hadn't put his foot in his mouth, I believe he would've been, by virtue of his former place in the chain of command, disqualifed for the CIA Director position.

No blogger I've read is demanding a massive purge of CIA staff. But I personally think it is important to both make and accept as legitimate a broader critique of Obama's CIA candidates based on chain of command.

Mel Goodman did this a little bit regarding John Brennan in his Democracy Now! appearance. From the transcript:

"MEL GOODMAN: OK. John Brennan was deputy executive secretary to George Tenet
during the worst violations during the CIA period in the run-up to the Iraq war,
so he sat there at Tenet's knee when they passed judgment on torture and abuse,
on extraordinary renditions, on black sites, on secret prisons. He was part of
all of that decision making."

Goodman is right to hold Brennan accountable for decisions made in and by the CIA. Brennan was one of the leaders - as were Steve Kappes and John McLaughlin, both of whom have been floated for the CIA Director position. I don't think we should punish the lower-level officers in the CIA who carried out specific operations - the Kirakous of the intelligence world. But we do need to ensure that the honchos of the Bush administration's CIA are held accountable for the decisions they made and that they will not now lead Obama's CIA.

To construct this critique, we need to understand the chain of command in the CIA (esp. before the 9/11 commission report and the establishment of the DNI position). According to espionageinfo.com :

The "director of Central Intelligence (DCI) oversees the four directorates
(Administration, Intelligence, Science and Technology, and Operations), as well
as numerous other offices."
"Under DCI is the deputy director of Central
Intelligence (DDCI), who assists DCI as head of the CIA and of the Intelligence
Community. DDCI also exercises the powers of the DCI when the holder of that
position is absent or disabled. Within the CIA and the Intelligence Community as
a whole, the offices of the DCI and the DDCI are intended to function virtually
as a single unit."

The very top. The buck stops with the DCI and the DDCI. In other words, these two guys, both floated as Obama administration CIA Directors, DCI Hayden and DDCI Steve Kappes, are literally in this together.

Continuing from espionageinfo.com:

"By far the largest chain of command within the CIA, however is the one
that runs through the offices of the Executive Director (EXDIR) and Deputy
Executive Director (D/EXDIR).

The EXDIR oversees five centers that collectively enable the CIA to
carry out its mission: the Chief Financial Officer, Chief Information Officer,
Global Support, Human Resources, and Security, each of which have numerous
subordinate offices and bureaus. Also under the EXDIR aegis are several
independent functions, including the Center for the Study of Intelligence,
Office of Equal Employment Opportunity, Ombudsman/Alternative Dispute
Resolution, and the Executive Secretary. Finally, the Executive Director's
office is in the line of authority between DCI/DDCI and the four
directorates."

The Wall Street Journal also has a chart that lays out these relationships nicely. Note this chart is not the same as the current CIA chart which takes into account the various reforms made in 2004 and onward.

The EXDIR's office has authority over Operations. You know, that directorate where particular rendition and interrogation plans are hatched and carried out. And those in charge of Operations are the Deputy Director of Operations and the Associate Deputy Director of Operations. Pertinently, from June 2002 on Kappes was the Associate Deputy Director of Operations (for more on Kappes, please see here).

Considering that John Brennan served as the Deputy Executive Director, his line about not being "involved in the decisionmaking process for any of these controversial policies and actions" is a little weak. Until March 2003 (when he left) he had authority and oversight over Operations. Based on the job description alone he was involved in the implementation of these controversial policies. And I think that is fair game.

Why is it fair game? Because we hold our leaders accountable for their actions. If people are kidnapped, if people are held in black site cells without a clue as to why, if someone is tortured, we look to those leaders for an explanation as to why - and why these things continued.

Based on their positions of authority alone, I find Kappes and McLaughlin unfit to serve in the CIA - and Brennan too. I would find Jim Pavitt, former Deputy Director of Operations until June 2004, unfit as well.

Why is all this important? How about this - a point of Tim Shorrock's and Frank Naif's. Their point is in response to the bundles of international legal trouble the CIA's rendition and interrogation policies have gotten the agency into. To quote Shorrock and Naif:

"Ignoring allied complaints about heavy-handed renditions is not an
option--senior career and appointed officials who greenlighted these operations
should step forward for the inevitable reckoning on behalf of their country, and
on behalf of the brave men and women whose intelligence careers and personal
lives have been turned inside out by foreign indictments."

By virtue of their place in the chain of command, the Brennans and Kappes of the intelligence world need to offer an explanation for how these renditions happened, how they went so wrong, and why they were allowed to happen at all. They will be able to offer either useful testimony or they will themselves be targets of these international investigations. Because whether we think it's legal or not, other countries have discovered our operations in their territory, and have found them illegal.

In the domestic arena, the logic is similar. As Senator Levin said on the Rachel Maddow Show on Dec 17, 2008:

LEVIN: "What I think is our role to do is to bring out the facts which we
have to state our conclusions, which we have, which is where the origin of these
techniques began. And then to turn over to the Justice Department of the next
administration - because clearly this Justice Department is not willing to take
an objective look - to turn over to the next Justice Department all the facts
that we can, and we have put together, and get our report, the rest of it
declassified.

But then it seems to me it is appropriate that there be an outside
commission appointed to take this out of politics, that it would have the clear
subpoena authority to get to the parts of this which are not yet clear, and that
is the role of the CIA.

We looked at the role of the Department of Defense, but the role of the
CIA has not yet been looked at, and let an outside commission reach the kind of
conclusions which then may or may not lead to indictments or to civil action.
But it is not our role, it's not appropriate for us to make those kinds of -
reach those kinds of conclusions." [bolding my own]

By virtue of their positions alone, we know who had responsibility. Now is the time to find out what happened, from them. Keeping these officials in the CIA is not an option. We need them to take responsibility for the decisions they made, and the policies that we as a nation need to leave behind.

[crossposted at TalkLeft]

CIA: the Chain of Command

The CIA has a mania for titles and a rather complicated chain of command. Figuring out accountability in the CIA means figuring out who reports to who, and what responsibilities those positions have. This info is taken from espionageinfo.com.

[Zoom on up to my other post ("The Broader CIA Critique") to learn more about the chain of command - complete with official CIA charts! This post has been trimmed in light of the more comprehensive recent post.]

The DCI/DDCI are accountable for three separate chains of command. (NB - this info predates the Sept 11 commission/intelligence reorganization. I think it is still of value considering it helps us evaluate candidates for Obama's administration and potential future criminal investigation).

The third chain is the largest and of most interest for this article.

This chain runs through the Executive Director (EXDIR) and Deputy Executive Director (D/EXDIR). [During important periods in the Bush Administration, formerly Buzzy Krongard EXDIR and John Brennan D/EXDIR] To quote espionageinfo:

The EXDIR oversees five centers that collectively enable the CIA to carry out
its mission: the Chief Financial Officer, Chief Information Officer,
Global Support, Human Resources, and Security, each of which have
numerous subordinate offices and bureaus...Finally, the Executive
Director's office is in the line of authority between DCI/DDCI and the four directorates.

So John Brennan's line - "I was not involved in the decisionmaking process for any of these controversial policies and actions" - is a little difficult to understand. His office was in the line of authority between Operations and the DCI.

Here is a glimpse of the kind of trouble you can get into as Executive Director of the CIA. From Laura Rozen:

As court documents laid out in 28 charges, the man known to
colleagues as "Dusty," a former logistics officer, served as the CIA's number
three official and effectively day to day manager when he badgered the Agency to
hire one of his mistresses, identified in the indictment as "E.R.": "On or about
March 19, 2005," the indictment reads, "Foggo sent the CIA Acting General
Counsel an email stating, in part, that his staff would tag E.R.'s conditional
offer of employment as 'ExDir Interest' in order to 'zip her to the top of the
pile.'" (E.R. was indeed hired, to a position in the CIA general counsel's
office. "ExDir" refers to Foggo's position as CIA Executive Director.)

But former Executive Director Kyle Dustin Foggo is involved in more ominous affairs than that:

No, what truly worried Agency brass were the darker secrets their former top logistics officer was threatening to spill had his case gone to trial as scheduled on November 3. They included the massive contracts Foggo was discussing with Wilkes, estimated by one source at over $300 million dollars. "Wilkes was working on several other huge deals when the hammer fell," a source familiar with Foggo's discussions with Wilkes told me. What kinds of deals? According to the source, they included creating and running a secret plane network, for whatever needs the CIA has for secret planes now that the network it used for extraordinary rendition flights has been outed. "In or about December 2004," the Foggo indictment says, "Foggo discussed with Wilkes and J.C. the idea that Foggo might be able to get Wilkes a classified government contract to supply air support services to the CIA…. In or about January 2005, Wilkes directed various ADCS employees to begin developing an air support proposal that would be designed to answer the CIA's classified needs as outlined by Foggo." The indictment continues: "On or about February 3, 2005, an employee of Wilkes' corporation emailed J.C. with an offer to update him on their work developing the air support proposal. …" (J.C.,
the indictment explains, is Wilkes' nephew, whom I've identified as Joel G.
Combs, the nominal head of a Wilkes' front company, Archer Logistics.) The
"classified air support contract" and its implied purposes for renditions are
among the truly damaging national security secrets, along with the methods the
CIA uses to create front companies and dole out black contracts, that the CIA
and Bush White House would have been anxious not to have exposed, especially in
a trial set to take place the day before the election in a suburban DC courtroom
within a ten-minute drive of the entire national security press corps.

And here is a glimpse of the tricky legal manuveurs a senior official can make if they do not get their way:

"Greymail" is the term of art for an old legal defense technique employed by
those in possession of classified information: The accused and his lawyers will
demand the revelation of so many government secrets in order to get a fair trial
that prosecutors come under pressure to make the case go away. And in
Foggo, the official responsible for the logistics of much of the
administration's war on terror, federal prosecutors met their greymail match. Foggo threatened "to expose the cover of virtually every CIA employee with whom he interacted and to divulge to the world some of our country's most sensitive programs—even though this information has absolutely nothing to do with the charges he faces," prosecutors howled in an early September court filing, before they were evidently compelled to extend Foggo the lenient plea deal; Foggo's lawyers, the filing continued, were attempting to "portray Foggo as a hero engaged in actions necessary to protect the public from terrorist acts."

Now Brennan did not have any record of such wildly irresponsible abuse of power. But it is really remarkable/galling, again, that he was no doubt involved in the logistics of rendition and interrogation and yet he claims to have clean hands.