Spy v. Spy

So much for keeping secrets. We learned this weekend that there's an internal dispute at the Central Intelligence Agency over the legality of the agency's interrogation and detention programs.

On the one side, the CIA's lawyers and leadership--with the backing of Justice Department officials--vouch for the constitutionality of the controversial techniques used on terrorist suspects since 2001. On the other side, the CIA's inspector general has doubts about whether the practices-- torture or not-- are lawful. And now, the CIA director is reviewing the inspector general's reviews.

If the spies themselves aren't sure if what they're doing is legal, why should any of the rest of us be? And how does this get us any closer to finding Osama?

At first glance, this may seem just another intra-agency turf war of the type that roils many of the government's biggest bureaucracies. But this is much more important than a jurisdictional squabble over who gets to regulate the distribution of widgets. The fight over how we treat terrorist suspects has enormous political and security and religious ramifications. It's not only Abu Ghraib disaster to understand why.

The take of CIA Director Michael Hayden's people is that Inspector General John Helgerson was conducting investigations with "a prosecutorial mentality and the director could not ignore them." A senior intelligence official complained to The Washington Post that the agency's clandestine operators "find the CIA general counsel says a technique is okay, the IG months or years later says no," which leads "first to job anxiety, then to a drop in morale and, finally, to risk aversion." A second intelligence official said there was concern about how long the inspector general's investigations took and that there might be bias in his approach.

The Inspector General's people, meanwhile, consider the director's intervention "part of an effort by Hayden to protect such case officers and to solidify his support within the agency's directorate of operations," according to the Los Angeles Times. They complain about the unprecedented nature of the director's review and about the threat to the inspector general's independence. One "U.S. official familiar with the probe" told the LA Times that it "could at least lead to appearances he's trying to interfere with the IG, or intimidate the IG or get the IG to back off."

There is a reason why the inspector general is so busy and has gotten under the skin of the people he's investigating. The reason is that the policies themselves are legally dubious.

It's clear that the Congress still can't muster up the courage to fix the problem. The best the lawmakers have come up with so far was the mealy-mouthed 2005 compromise on torture that the President quickly blew off via signing statement.

So maybe it's time for another branch of government to muster the courage to finally put a stop to the practices that are causing CIA strife. Instead of arguing over who is investigating whom or continuing to rely on faulty Justice Department logic, the agency would be better off seeking some sort of declaratory judgment in the federal courts. It an outside-the-box thought, but, then, that's what the CIA is supposed to be about anyway, right?

By Andrew Cohen |  October 14, 2007; 2:15 PM ET
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The LAT article cited above is well worth reading. It may be too early to speculate as to whether this is more than a personality conflict with this particular IG, if I read the LAT article fairly.

Posted by: mark_in_austin | October 15, 2007 08:37 AM

The technniques used to torture, obstruct and persecute Americans on American soil (we're talking about individual whistleblowers, administration critics and intellectual property owners here, not Islamiacs -- that's a red herring) would shock the conscience of Americans who knew of the ruthless, life threatening clandestine techniques used against their compatriots for the sadistic entertainment of the Executive (combined with other economic and political motives). Inspector General John Helgerson should be allowed to operate without interference and should be given increased powers of oversight at the first hint of obstruction.

Posted by: Mel Carnahan | October 15, 2007 11:22 AM

The President, may beets grow in his belly, blew off the anti-torture legislation not only with his "I'm the Decider, nobody tells me what to do" signing statement, but with the secret, made-to-order legal opinions from Gonzales' 'Yassuh boss whatever you say boss" Justice Department. It's hard to feel a lot of sympathy for torturers, even our own, but I confess to having some for the CIA operatives who did what they were told by the White House probably thinking, pace Richard Nixon, that 'if the president orders it, it's OK.' It may be that someday the chickens will come home to roost and someone will be punished for engaging in torture, but I doubt it. The recent action by the federal courts, including the Supremes, in dismissing the suit by the alleged German kidnap and torture victim on the 'state secrets' ground suggests that no one will ever be held to account for the criminal acts ordered by Bush and supported by Cheney, Addington, Gonzales et alia. So it looks like Nixon will ultimately be proved right, albeit 35 years too late to help him. If the President does it, it's OK. So much for the Rule of Law. Bush, like Nixon and France's King Louis XIV, could all say 'L'etat, c'est moi.' And Bush and his henchmen, like the later Louis XV, can add "Apres nous, le deluge." The nation will be paying for his hubris and essential stupidity for many, many years. One is reminded of Thomas Jefferson writing "Indeed I tremble for my country when I reflect that God is just."

Posted by: P. Bosley Slogthrop | October 15, 2007 02:36 PM

The idea of a declaratory judgment absent a controversy is possible in say a British Court or a Canadian Court and certainly is a valid approach in the administrative courts of the land. But my reading of Supreme Court precedent and every class I attended in jurisprudence that I recall requires a justiciable controversy. Even in a case like Roe v. Wade there are real litigants and a real controversy. The case was heard on the grounds that Court processes were such that the controversy would terminate (by birth of the child) before the case could make its way through the courts. That is certainly not the case here.

Even out of the box thinking needs to be within the bounds of the Constitutional authority of the Courts. This seems outside of that. Just who sues whom in this case? The best you could get would be an employment action against a covert agent for activities, but that would require terminating -- without extreme prejudice we hope ;-) -- a covert agency operative.

Just as a side note there is no hint that these Presidential decrees known as "signing statements" will ever have the force of law or be enforceable; they are meant as a counter-weight to the legislative record but are of dubious near term and of no long-term value. If the President disagrees with a bill he has the option of not signing it; I am sure eventually, ONCE A CONTROVERSY ARISES, the Court will agree. But until a controversy arises, we will have to wait, because the Court cannot weigh in before then.

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