Citizens on both sides of the political divide are outraged at the recently released Department of Justice report on the Bush administration’s torture memos and what it shows about the lawyers who compiled those legal weapons and subverted the law. But while debate rages over whether or not legal pugilists John C. Yoo and Jay S. Bybee ought to be subjected to disciplinary action for their loose interpretation of laws prohibiting torture, the media is ignoring an equally disturbing issue. Buried in the weighty study from the department’s Office of Professional Responsibility is evidence that points directly at the Central Intelligence Agency. When it came to "enhanced interrogation techniques" – the carefully parsed phrase for torture – the lawyers at Langley don’t seem to have applied a sniff test to these controversial policies.
The more dramatic events of the war on terror have drawn attention away from the CIA’s role in this matter. The CIA’s private legal advice on torture has also been obscured by the conventional wisdom that the agency has become "risk averse" largely because its lawyers oppose every operation. The agency might have been more cautious during the Clinton years, when CIA mishaps proved embarrassing, but this is no longer true.
Layers of Lawyers
The CIA certainly has its share of lawyers. The agency’s Office of General Counsel (OGC) has been supplemented by legal shops attached to many subordinate units. Field officers decry the layers of review to which every proposal is subjected and the agency’s propensity to leave its operators flapping in the wind at the first hint of scandal. But at least since George Tenet – and certainly under directors from Porter Goss to Michael V. Hayden – the demand for high "operational tempo" has supplanted previous caution.
The CIA’s "black prisons" and its interrogation program are a case in point. These operations are now well documented in the Justice Department report, as well as in the 2004 investigation declassified last year by the agency’s own inspector general. In fact, CIA lawyers were leading the assault on operational restrictions – and on American law and values. The OGC began researching the laws on torture in September 2001, but the law is plain enough. The researchers shouldn’t have needed that much time to discover that torture is prohibited. Rather than warning their masters against this course, CIA lawyers searched for loopholes to justify aggressive interrogations.
The OGC not only accepted the now-notorious "Bybee memos," but solicited them. In spring 2002, agency lawyers provided the Justice Department with a list of specific torture methods it anticipated using, plus its own 10-page legal memorandum defining arguments for their legality. The CIA relied on the August 2002 Bybee memos to continue to assert legality when its field officers exceeded the severity of the methods the OGC had described. The record shows that the CIA general counsel sought not only legal opinions but a letter from the Justice Department, preemptively foreclosing prosecution of CIA officers on torture charges.
In 2004, the OGC claimed that another of its unsigned legal papers represented the joint work of the CIA and Justice Department, in effect warranting that its analysis had an interagency character and a legal rigor that was completely fictitious. In fact, OGC lawyers represented that paper just to investigators for the agency’s own inspector general. In 2003 and 2004, the lawyers attended every one of the "enhanced interrogation" briefings to Congress. The first was held at the urging of the general counsel, no doubt to provide a veneer of accountability. Thereafter, aware of their shaky legal arguments and to avoid the danger of being questioned, OGC officials attended only two (of 32) congressional meetings that took place on the program, both of them occasions when the CIA program came under heavy fire. On several occasions, when specific CIA methods were questioned, the agency’s lawyers sought new Justice Department memoranda to justify business as usual, rather than encouraging the director to rein in the interrogation program.
Inside the agency, the story is the same. For several months before George Tenet signed directives governing detention and interrogation, both programs were guided on an ad hoc basis by Counter Terrorism Center (CTC) officers and OGC lawyers. Attorneys working directly for the CTC advised the CIA’s medical unit to delay issuing its own guidelines for the treatment of prisoners and, when these were circulated, ensured the regulations were given only "draft" status, suggesting to field officers that the strictures did not have the force of approved policy.
Agency officers actually videotaped the interrogations of detainee Abu Zubaydah, and an OGC lawyer reviewed the tapes within months of the original Bybee memos. The CIA inspector general, an internal watchdog unit distinct from its general counsel and such operating arms as the CTC, found that Zubaydah had been waterboarded 83 times – the last of them at the demand of a visiting senior officer after the interrogation team itself found him "compliant." The inspector general also found that the instances of waterboarding went significantly beyond what the agency had described to Justice in seeking authorization. Yet the OGC attorney had seen nothing disturbing in the tapes. In November 2005, CTC lawyers told agency Operations Chief Jose A. Rodriguez there was no legal objection to his destroying these tapes at a time when they were under subpoena in the trial of Zacarias Moussaoui, an act that put the CIA in jeopardy of obstruction of justice charges still reverberating today.
Endemic Problems
Were this the entire record of CIA malfeasance it would be bad enough. But there is more. Operations directorate lawyers found nothing objectionable in the CIA kidnapping Islamic cleric Abu Omar (Hassan Mustafa Osama Nasr) in Italy, an act which not only damaged relations with an ally but led to the unprecedented criminal conviction of two dozen CIA officers, including a base chief and the station chief in Rome.
Indeed, the legal underpinnings of the entire CIA rendition program are highly questionable. Agency lawyers had nothing to do with the arrest and rendition of a Canadian citizen transiting the United States, or a number of refugees in Albania, but they certainly did weigh in to encourage U.S. refusal to ask Albanian authorities to release these innocents. Then there’s the recently revealed CIA "hit team" project. The substance of legal advice to CIA directors on managing relations with the private firm Blackwater (now Xe) within an espionage and assassination project isn’t yet known, but is fundamentally flawed. Blackwater’s principal on this effort, former CIA officer J. Cofer Black, had retired only a few months before. That touches on federal contracting regulations – a matter squarely within the purview of CIA attorneys.
The lawyers also seem to have been completely blind to the malfeasance of senior CIA official Dusty Foggo, who accepted emoluments from contractors and, as chief of support at the CIA’s base in Frankfurt, Germany, actually let some of the contracts for the agency’s black prisons. All this is only a portion of the bill of particulars. Rather than put its own house in order, Michael Hayden’s CIA launched an internal probe of its own inspector general in 2008. This had a chilling effect on the one unit of the CIA hierarchy that had been willing to say the agency had gone too far.
Long ago, lawyers also played a prominent part at the dawn of the CIA. A lawyer, Frank Wisner, headed the CIA operations directorate and, before that, its Office of Policy Coordination. Directors of the OSS (William J. Donovan) and CIA (William E. Colby) were practicing attorneys, William H. Jackson served as deputy director, and the ranks of lawyers included other CIA notables. Perhaps today’s CIA lawyers are pining for those bygone days – or striving to escape accusations of being averse to risk.
Agency attorneys today are neither protecting its real interests nor improving its effectiveness. Their olfactory senses have atrophied. The lawyers’ actions – and the lack of them – have been disastrous. Congress is moving toward appropriating money to provide CIA officers with legal liability insurance. It would do better to investigate the conduct of the agency’s legal staff.
Reprinted courtesy of Foreign Policy in Focus.
