Sunday, December 25, 2005

Good Leaks, Bad Leaks?

By Melissa Boyle Mahle

In his commentary in the LA Times entitled the “Plame Platoon is AWOL on New Leaks” Max Boot demonstrated the insidiousness of politicizing intelligence. Boot challenged Plame supporters, presuming their position on leaks would be determined by politics, not principles. Boot’s argument said more about him than others when this normally intelligent commentator slipped into the good leaks, bad leaks argument by defending the outing of Valerie Plame and criticizing the exposure of secret prisons, renditions and secret wiretaps. So here is the rejoinder from one “high-minded” intelligence professional.

All leaks that compromise intelligence sources and methods are bad. Some destroy the ability of clandestine operators to do their job. Others shut down productive collection operations. Beyond the damage that a leak does at the operational level, leaks done for political reasons can undermine the credibility of the intelligence community by putting it at risk of becoming a political pull-toy.

The fact that the intelligence community is leaking like a sieve is a good indication that something is broken. That something is the intelligence policy. Post 9/11, intelligence policy has had to transform to meet emerging threats of domestic and international terrorism and weapons proliferation. Our intelligence community as set up and evolved since 1947 was not well suited to the task at hand. In the remaking of the intelligence community, there has been great confusion. This confusion has been fed by a belief by some policymakers and intelligence practitioners that intelligence policy is not public policy. In other words, nothing in the intelligence world belongs in the public domain.

Intelligence policy is not the same as intelligence practices. Policy is the framework, the laws, the missions, the authorities, the guidelines and the limitations. Intelligence practices are sources and methods, the specifics of how intelligence officers collect, analyze and disseminate secret information and the people who do it.

Intelligence policy should be public policy while intelligence practices should remain behind the veil of secrecy. Why? Secret intelligence policy is incompatible with democracy. If Americans suspect the Administration of conducting domestic spying outside of legal review as a policy, the intelligence community risks being viewed as a secret tool of domestic oppression. The policy must be defensible before the American public. On the wiretap controversy, Attorney General Alberto Gonzales acknowledged the conscious decision to not seek to change the FISA law to give NSA additional emergency provisions. During a 19 December 2005 press conference, Gonzales said:

“We have had discussions with Congress in the past – certain members of Congress – as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.”

Such a position begs the question of what else is the intelligence community secretly doing that the Administration is afraid to vet with the public? This is just the kind of question that makes intelligence officials quake in their boots because it is the first volley of a political mud-slinging contest on why we should not trust the political party in power and, by extension, the intelligence community under its control.

Inquiring minds might ask how should the issue of domestic wiretaps by NSA been treated? The first opportunity was in December 2002 when the intelligence oversight committees from both the House and the Senate submitted their joint report investigating the 9/11 attacks. The gap between foreign and domestic intelligence collection was clearly identified in relationship to NSA authorities. Based on the public findings in this report, the Administration could have sought to amend FISA. The opportunity came up again when the 9/11 Commission submitted its report, reaching similar conclusions. The Patriot Act could have been a legislative vehicle. There would have been no need to get down into the weeds on the targets or methods, which unfortunately are appearing in the press as investigative journalists tap into knowledgeable sources who are either outraged or defensive of the political maneuvering.

The legislative route on intelligence policy, however, was shut down. So was the Congressional oversight. As Senator John D. Rockefeller IV described the oversight briefing he, Senator Pat Roberts, Representatives Porter Goss and Jan Harman received, they were not given any avenue to actually exercise oversight because they were not permitted to do anything to look into the legality or advisability of the wiretap program. It reflects poorly on oversight system if the only path to registering concern is for a senator to write a memorandum for the file that is sealed from everyone’s knowledge because the security concerns. The intelligence community benefits from a robust oversight process by elected officials because it provides a democratic seal of approval as long as the American public has confidence that the process is real.

In summation, Mr. Boot, the NSA wiretapping leak has harmed the intelligence community because the leak exposed both secret policy and effective practices. Americans will justifiably have less confidence in, and demand more checks on, US intelligence; al-Qa’ida and other terrorists groups will be motivated to tighten security practices on telephone and electronic communications with cell members in the US making collection more difficult. Just like in the case of the political outing of Valerie Plame, which caused a well-qualified officer specialized in WMD to be removed from the playing field, our intelligence capabilities end up paying the price. This is why "high-minded" professionals take issue with commentators who play politics with intelligence.

Monday, December 19, 2005

I'm Shocked; I'm Shocked

By Melissa Boyle Mahle

I must admit that I find myself shocked at the recent disclosures on the NSA eavesdropping activities in the US, but not for the same reasons that are getting play in the press. First of all, was anybody listening to the recommendations of the 9/11 Commission Report and the Joint Congressional Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001? Both of these investigations cited the gap between foreign and domestic intelligence collection as a major weakness in the intelligence community and one of the reasons why 9/11 was not stopped.

The Joint Congressional Inquiry in particular looked at the NSA and the difficulties this eavesdropping organization had in countering emerging terrorism threats. Although most of the sections dealing with the NSA were not declassified, the Joint Congressional Inquiry report clearly said that even though it has the mission and authority to seek FISA court approvals, NSA was not collecting in the US because of fears of being accused of targeting US citizens. The NSA and FBI were not working together to insure NSA leads were followed up by the FBI. Congress and the American people asked President Bush to fix the intelligence problem.

Bush did. So what is the stink really about?

Bush authorized the NSA to collect in the US against US persons without going through the established procedure that provides judicial review. This has people who are concerned about civil liberties going nuts. What shocks me is that individuals in Congress, members who sit on the intelligence oversight committees apparently agreed to NSA’s expanded activities without the protection of judicial review, which is against US law. Congress gave the green light to cede the review responsibilities back to the intelligence community, allowing the proverbial fox to watch the hen house.

I do not doubt Administration statements that NSA has established a strict review process to ensure there is no undue infringement on US civil liberties. As the action organization, however, the NSA scale will have a tendency to tip towards national security interests, not civil protection interests, because of built in biases. It was for these very same reasons that when the FISA courts were established, they were not established as review boards within the FBI. But even this is not the point; the Executive Order is counter to the 1978 Foreign Intelligence Surveillance Act (FISA), which provides for domestic surveillance under extreme situations, but only with court approval.

Why did the Bush Administration decide against the FISA path? I don’t have any inside knowledge on this but I suspect the answer would have to do with cutting through red tape and giving NSA the agility to respond quickly to emerging threats. Think about it. If NSA is monitoring email correspondence of a terrorist operational planner overseas and suddenly this suspect starts sending messages back and forth with someone in the US. The emails move through a US-hosted ICP and are read by the intended recipient--a US person. This recipient then contacts several different people, all in the US, but in different areas, forwarding on parts of the messages. This would be considered significant intelligence activity that would require immediate follow up. But what if NSA had to turn off the system the minute the email started moving through US companies to US persons? If it took days or weeks to pass the intelligence to the FBI or to get FISA approvals, leads could be lost or things could go boom in the night.

Is this a sound argument? Perhaps, if it really does take days or weeks to put together a FISA request. But it doesn't. It can be done in one day. The FBI had a similar problem when monitoring the telephones of criminals. Smart criminals would use good telephone security by not using the same phone all the time, mixing it up with pay phones, newly acquired cell phones, or the phone of the neighborhood bar. The FBI succeeded in getting roving wiretap approvals so that the wire tap approval was on the individual, not the phone. Each time the criminal would use a different phone, that call could be monitored because of its connection to the criminal suspect. The FBI also has relatively new authority to initiate a wiretap in an emergency and then to seek FISA approval immediately afterwards. The FBI fixed the problem by refining the targeting method, not by cutting the FISA court out of the process. NSA should be able to use a similar approach for monitoring suspects. Plus, NSA should be working with the FBI on these operations in this new post 9/11 world of integration.

This case reveals once again the preference of the Bush Administration to establish secret policies under the guise of national security. This is very dangerous in a democracy. As I have argued before, it is defensible to have secret intelligence methods and operations, but intelligence policy must be transparent and subject to public debate, congressional oversight and judicial review. If the Bush Administration believes the FISA law is too restrictive, it should make its case in public to modify the law, and not break it under the cloak of secrecy and through Executive Order authorities.

Congress should take a second look at the expanded authorities of NSA for working inside the US and against US persons and determine if additional legislation is required and if there are sufficient safeguards built into the process so that protecting civil liberties does not become a discretionary practice or bureaucratic box checking exercise. There is a legitimate national security need here; let’s just deal with it in a democratic and legal way. Bush is simply wrong when he said, "An open debate would say to the enemy, 'Here is what we're doing to do.'" We are not talking about debating specific practices, but the policy. Bush's statement is akin to saying the National Security Act of 1947 should be classified.

One footnote on the FISA courts. I would not give them too much credit on the side of protecting civil liberties. Pre-9/11, these secret courts approved every FISA requested submitted to them by the FBI. It would be interesting to know if this batting average has continued post-9/11 as the numbers of FISA requests have dramatically increased.

For those interested, below are the relevent parts on the NSA from the “Joint Congressional Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001”.

Page xvi:

Finding 7: [Prior to September 11, the Intelligence Community’s ability to produce significant and timely signals intelligence on counterterrorism was limited by NSA’s failure to address modern communications technology aggressively, continuing conflict between Intelligence Community agencies, NSA’s cautious approach to any collection of intelligence relating to activities in the United States, and insufficient collaboration between NSA and the FBI regarding the potential for terrorist attacks within the United States].

Page 36:

[There were also gaps between NSA’s coverage of foreign communications and the FBI’s coverage of domestic communications that suggest a lack of sufficient attention to the domestic threat. Prior to September 11, neither agency focused on the importance of identifying and then ensuring coverage of communications between the United States and suspected terrorist-associated facilities abroad []. Consistent with its focus on communications abroad, NSA adopted a policy that avoided intercepting the communications between individuals in the United States and foreign countries].

NSA adopted this policy even though the collection of such communications is within its mission and it would have been possible for NSA to obtain FISA Court authorization for such collection. NSA Director Hayden testified to the Joint Inquiry that NSA did not want to be perceived as targeting individuals in the United States and believed that the FBI was instead responsible for conducting such surveillance. NSA did not, however, develop a plan with the FBI to collect and to ensure the dissemination of any relevant foreign intelligence to appropriate domestic agencies. This further evidences the slow response of the Intelligence Community to the developing transnational threat.


Page 73-75:

The inability to bring technical collection capabilities to bear in the counterterrorism area was particularly apparent in regard to signals intelligence that could have shed greater light on the potential for terrorist activity within the domestic United States. Both the NSA and the FBI have the authority, in certain circumstances, to intercept international communications, to include communications that have one communicant in the United States and one in a foreign country, for foreign intelligence purposes. While those authorities were intended to insure a seamless transition between U.S. foreign and domestic intelligence capabilities, significant gaps between those two spheres of intelligence coverage persisted and impeded domestic counterterrorist efforts.

Before September 11, it was NSA policy not to target terrorists in the United States, even though it could have obtained a Foreign Intelligence Surveillance Court order authorizing such collection. NSA Director Hayden testified that it was more appropriate for the FBI to conduct such surveillance because NSA does not want to be perceived as targeting individuals in this country and because the intelligence produced about communicants in the United States is likely to be about their domestic activities.

[As a result, NSA regularly provided information about these targets to the FBI – both in its regular reporting and in response to specific requests from the FBI – [ ] that NSA acquired in the course of its collection operations. The FBI used this information in its investigations and obtained FISA Court authorization for electronic surveillance [ ] when FBI officials determined that such surveillance was necessary to assist one of its intelligence or law enforcement investigations].

[One collection capability that was used by both NSA and FBI under approval of the FISA Court (the “FISA Court technique”) had a [ ] probability of collecting [ ] communications between individuals in the United States and foreign countries. NSA did not use the FISA Court technique against [ ], however, precisely because of this [ ] probability].

As NSA Director Hayden has testified to the Joint Inquiry, NSA believed it was the FBI’s responsibility to collect communications of individuals in the United States. General Hayden stated two reasons for this position. One is that, since the individual is in the United States, the information obtained is most likely to relate to domestic activity that is of primary interest to the FBI. The second reason is that NSA does not want to be viewed as targeting persons in the United States. Joint Inquiry interviews of a wide range of NSA personnel, from the Director down to analysts, revealed the consistent theme that NSA did not target individuals in the United States. This is so ingrained at NSA that one counterterrorism supervisor at NSA admitted that she had never even thought about using this technique against [ ].

Despite the NSA view that this category of intelligence collection was the FBI’s responsibility, NSA and the FBI did not develop any plan to ensure that the Bureau made an informed decision about whether to use the FISA Court technique to collect communications between the United States and foreign countries that NSA was not covering. Thus, a gap developed between the level of coverage of communications between the United States and foreign countries that was technically and legally available to the Intelligence Community and the actual use of that surveillance capability].

Sunday, December 11, 2005

Living in the Gray; Practicing Denial

By Melissa Boyle Mahle

In the world of intelligence, officers are used to operating in the gray. It is an area that offers the most flexibility and the least transparency. While it is appropriate for intelligence operations and method to be secret and opaque to the public, the principles guiding intelligence should be clear and transparent in a democracy. This past week, the White House entered the gray zone in explaining the US policy on torture, adherence to international conventions and respecting foreign sovereignty. Secretary Rice’s statements in Europe and the State Department’s press conference on December 7, 2005 have made the policy anything but clear and transparent.

The Bush Administration is saying that as a matter of policy, the US government does not practice or condone torture, whether in the US or overseas. According to the December 7 State Department press conference, this is not a change of policy, but existing policy. Deputy Spokesman Adam Ereli did back flips trying to evade answering the question “since when has this been the policy”. When asked about the interrogation rules only applying to interrogation in the US and if Rice’s statements were meant to expand the policy abroad, Ereli declined to give a timeline for the policy development, but said clearly that US policy is and was to not condone torture. Ereli kept on confusing the press corps by making statements to the effect that the US was on unfamiliar ground, engaged in a conflict with a new kind of enemy that acts outside the norms, seeming to suggest the US had to act outside the norms.

As Americans, we should be able to accept at face value a statement of policy from the Secretary of State and the President. The problem is that at the same time that these policy statements are being made, they share headlines with the case of Khalid el-Masri, a German citizen of Lebanese descent who was allegedly forcibly abducted by the CIA, held in a secret prison incommunicado, subjected to torture, before being released in middle-of-no-where, Albania, with a threat to never talk about what happened to him. El-Masri has filed a lawsuit in the US against former CIA-director George Tenet, the private airline company (Premier Executive Transport Services) that transported him in the alleged rendition operation, and unnamed CIA employees who seized, transported, detained and interrogated him.

Why should we worry about a gap between what our government says and does? Historically, when US practices strayed from stated policy, particularly when intelligence capabilities were involved, the stink had a way of growing, discrediting the administration in charge and the intelligence community. Iran-Contra comes to mind first. The US had a stated policy of not paying ransom to free hostages. In practice, the Reagan Administration permitted illegal arms sales to Iran to bribe the Iranians to free the hostages in Lebanon and with the ill-gotten gains, funded an illegal war in Nicaragua. The CIA was excoriated for its role and the backlash led to the dismantling of CIA capabilities throughout the 1990s, leaving the CIA ill-equipped to wage a real war on terrorism prior to 9/11. If the Bush Administration intends to keep the policy ambiguous so that after the fact if pushed into a corner Administration officials can say the intelligence community was to blame for excesses, we can expect the CIA to be further dismantled, perhaps to the point of closing up shop. I do not believe that is in the interests of US national security.

I recently attended a talk given by a retired Israeli intelligence official who recently headed up one of Israel’s main intelligence agencies. He spoke about the Israeli experience in dealing with terrorism in aggressive ways. He believed Israeli citizens have maintained confidence in the way in which Israeli security services counter terrorism by maintaining full transparency on counterterrorism policy, but secrecy on actual methods. Israeli courts have reviewed Shin Bet interrogation tactics and have ruled which tactics are not permissible and which are in extreme situations, such as ticking bomb scenarios in which the Chief of Shin Bet is authorized to approve the use of torture. The chain of command is explicit and transparent. The same is true for targeted killings. The Israeli Prime Minister must approve each targeted killing personally. These policies are public and enjoy the majority support of Israeli citizens.

Personally, I disagree with use of torture in any circumstances, but I see the benefit of transparency to the public on the policy. The majority of Israelis support the counterterrorism program, as exemplified by the repeated election of Israeli politicians who endorse an aggressive intelligence and military approach and who run on a security platform.

To the Bush Administration, I would suggest that a similar approach should be taken. If the Administration believes that certain counterterrorism methods are necessary in the global war on terror, then they should make their case to the American people. When the Bush Administration says it does not torture, but what it really means is that it does use methods that constitute “cruel, inhuman and degrading methods”, Administration officials should say that in order to clarify the lines. If the Administration believes kidnapping terrorist suspects and holding them incommunicado is necessary, then make the case. Denying methods being used and saying the US is in compliance with international obligations without offering proof is not consistent with American values or democracy.

As a footnote, let’s compare statements and law:

Torture and Cruel, Inhuman and Degrading Treatment (CID):

“We believe in the rule of law. And what I assured my European colleagues in my answer to Foreign Secretary Straw is that the United States intends and will fully live up to obligations under our international commitments as well as obligations under US law. We don’t condone torture.” (Rice, Interview with Anne Will of German TV One (ARD), 6 December 2005.)

“Well, I define torture probably the way most people would: in the eyes of the beholder. What we do does not come close because torture, in terms of inflicting pain or something like that, physical pain or causing a disability, those kinds of things that probably would be a common definition for most Americans, sort of, you know it when you see it, we don’t do that because it doesn’t get what you want.” (CIA Director, Porter Goss, Interviewed by Charles Gibson on ABC’s Good Morning America, 29 November 2005)

“After a drive of approximately one hour, the car came to a halt, and Mr. El-Masri could hear the sound of airplanes. He was removed from the vehicle, still handcuffed and blindfolded, and was led to a building. Inside, he was told that he would be medically examined. Instead, he was beaten severely from all sides with fists and what felt like a thick stick. His clothes were sliced from his body with scissors or a knife, leaving him in his underwear. He was told to remove his underwear and he refused. He was beaten again, and his underwear was forcibly removed. He heard the sound of pictures being taken. He was thrown to the floor. His hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus.” (Khaled El-Masri vs George J. Tenet, et. al., Complaint filed 6 December 2005 in the District Court for the Eastern District of Virginia)

“On his second night in the Salt Pit, Mr. El-Masri was woken by masked men and once again brought to the interrogation room. Again, six or eight masked, black-clad men were in the room. Mr. El-Masri was interrogated by a masked man who spoke Arabic with a South Lebanese accent. The man asked him if he knew why he had been detained; Mr. El-Masri said he did not. The man then stated that Mr. El-Masri was in a country with no laws, and that no one knew where he was, and asked whether Mr. El-Masri understood what that meant.” (Khaled El-Masri vs George J. Tenet, et. al., Complaint filed 6 December 2005 in the District Court for the Eastern District of Virginia)

“Mr. El-Masri was and remains deeply traumatized by his treatment during the couse of his seizure and detention. He was repeatedly beaten and threatened; had an object forced into his anus; was denied access to counsel, consular officials, or his family; was roughly interrogated on numerous occasions; and was secretly detained in squalid conditions for nearly half a year without charge or explanation.” (Khaled El-Masri vs George J. Tenet, et. al., Complaint filed 6 December 2005 in the District Court for the Eastern District of Virginia)

The United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which the US has signed and ratified, absolutely forbids torture under all circumstances:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

The CAT defines torture as:

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

In order to meet the CAT Article 4 requirement for criminalizing all acts of torture, the US enacted sections 2340 and 2340A of the US Criminal Code which prohibited torture occurring outside the US—torture inside the US was presumed to be prohibited under federal and state laws of general application prohibiting acts such as assault, battery, and murder. Torture is defined as “an act committed by a person acting under the color of the law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or control.”

A second category of proscribed conduct is cruel, inhuman and degrading (CID) practices. The CAT does not define CID, but it is referred to as on a continuum with torture. Article 16 of the CAT requires ratifying states to prevent “other actors of cruel, inhuman or degrading treatment or punishment which do not amount to torture”. When the US ratified the CAT, it did so with the reservation that the US considers itself bound by Article 16 insofar as CID treatment is understood to mean “the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and Fourteenth Amendments.

Torture and CID is also prohibited by Article 7 of the International Covenant on Civil and Political Rights (ICCPR) (ratified by the US in 1992)

The US could probably make the legal argument that el-Masri’s treatment did not constitute torture, but it would be more difficult to make a compelling argument that it did not constitute CID as prohibited by US law or international law.

Incommunicado Detention and Enforced Disappearance

“[W]e do hold and have made clear that we hold some al-Qaida detainees as unlawful combatants under the law of war. We do so because they have to be taken off the battlefield. We do so because they are valuable for the gathering of intelligence. But we also do so within U.S. law and within our international obligations. (Rice, Interview with Julie Etchingham of Sky News, 6 December 2005.)

“On December 31, 2003, Khaled El-Masri, a German citizen of Lebanese descent, was forcibly abducted while on holiday in Macedonia, detained incommunicado, handed over to United States agents, then beaten, drugged, and transported to a secret prison in Afghanistan, where he was subjected to inhumane conditions and coercive interrogation and was detained without charge or public disclosure for several months. Five months after his abduction, Mr. El-Masri was deposited at night, without explanation, on a hill in Albania.” (Khaled El-Masri vs George J. Tenet, et. al., Complaint filed 6 December 2005 in the District Court for the Eastern District of Virginia)

“Defendants subjected plaintiff [El-Masri] to prolonged arbitrary detention by detaining plaintiff without a warrant, probable cause, articulable (sic) suspicion, or notice of charges, and by failing to accord plaintiff due process or any legal, consular, or familial protection and support. Defendants’ prolonged arbitrary detention of plaintiff violates customary international law. The prohibition against prolonged arbitrary detention is a “specific, universal, and obligatory” norm of customary international law cognizible (sic) under the Alien Tort Statute.” (Khaled El-Masri vs George J. Tenet, et. al., Complaint filed 6 December 2005 in the District Court for the Eastern District of Virginia)

The International Covenant on Civil and Political Rights (ICCPR), which the US ratified in 1992, obligates the US to certain procedures for detainees:

To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends. To the same effect, the time and place of all interrogations should be recorded, together with the names of all those present and this information should also be available for purposes of judicial or administrative proceedings.

Additionally, transfer into secret detentions contravenes laws against disappearances. Disappearances, or forced disappearances as they are officially called, are considered one of the most serious violations of the fundamental rights of human beings and a grave and abominable offense against the inherent dignity of the human being, according to the United Nations.

The Declaration on the Protection of all Persons from Enforced Disappearances, adopted by the UN General Assembly in 1992—a convention that is not legally binding—states that enforced disappearances occur when

"persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, …followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law…"

The US, when assessing the human rights behavior of other countries in the annual State Department Country Reviews, includes a section on incommunicado detention as an abuse of human rights. Furthermore, the US has systematically condemned the practice of enforced disappearances, notably in Latin America during the period of the so-called “Dirty Wars” and even up to today in condemning the Libyan government for holding incommunicado those political activists calling for an end to Qadhafi’s regime. As 9/11 the US has adopted a practice that these standards do not pertain to the US in its actions against illegal combatants.

Sunday, December 04, 2005

The CIA and Torture

By Melissa Boyle Mahle


Washington, December 1, 2005

Secret prisons, renditions, torture—words now commonly associated with the CIA. Even national security hawks cringe at recent revelations of CIA activities. We have arrived at this juncture because the post-9/11 world of covert operational expediency has run smack into the reality of American democratic deliberations. In short, the American people are questioning if the CIA has crossed the red lines of democracy, rule of law and ethos of freedom and liberty in the name of fighting terror.

In light of these accusations, people like me who support a strong and capable CIA worry about a public backlash that might significantly undermine the CIA’s ability to meet its counterterrorism mission and keep Americans safe. I believe it is time to talk honesty and openly about rendition, torture and secret detention policies because attempting to hide them under the cloak of secrecy will only feed fears and prompt inappropriate reactions.

As a former CIA case officer, I support renditions, the practice of secretly getting a terrorist off the streets of a foreign country, immediately shutting down whatever operation he (or she) was planning, and perhaps flushing out previously unknown cell members as they scurry about seeking information on their missing co-plotter. Renditions should be conducted in the shadows for optimal impact and should not, I must add, leave elephant-sized footprints so as to not embarrass our allies in Europe. During my career at the CIA I was involved in these types of operations and know first hand that they can save American lives.

Supporting renditions does not mean supporting torture. Not only is torture immoral, it is damaging to the standing of any organization, entity or government that openly or secretly condones it. As a professional intelligence official, I firmly believe the practice of torture brings far more dangers than gains in the global war on terror. Subjected to torture, individuals will say whatever it takes to make the pain and humiliation stop. The intelligence take is a mixture of truth and lies; differentiating between the two in a timely and systematic way is impossible. Arguments in support of torture in the case of “ticking bomb” scenarios—an immediate threat that might be stopped if only the detainee would immediately spill the beans—are fallacious. Professional interrogators will tell you that torture is a faulty shortcut that can never produce the same quality of results that a systematic and sustained interrogation can produce.

Why has the rendition policy been caught up in a controversy over torture and secret prisons? Because the US turns over some of these snatched individuals to governments that may not respect human rights and holds others incommunicado in secret locations around the world.

The practice of rendering terrorists to third countries started for specific reasons in the 1990s. While the preference was to bring the individual to the US for prosecution under US laws, it was not always possible to obtain an indictment or a conviction because of legal standards. Take the case Musa Abu Marzook, the Hamas “political leader and fund-raiser” who was rendered to the US in 1995. He sat is a US jail for two years while the legal case against him floundered. Eventually, he was deported to Jordan. From there, he traveled to Syria where he joined his terrorist cohorts, free once again to incite terror against Israeli civilians. The US learned an important lesson from this case. Given the choice of letting the terrorist roam free or snatching and transferring him to a third country where criminal proceedings are a sure thing, it is understandable why the US has gravitated to third country renditions.

The war on terror dramatically increased the number of terrorist suspects picked up in war zones or rendered from around the globe. This presented a practical problem of where and how to hold these suspects so that their full intelligence value could be exploited, without violating US laws and without exposing intelligence methods—i.e. how the spies do their clandestine jobs—to legal discovery in criminal prosecutions. A decision to keep the entire enterprise completely in the black for maximum flexibility was made, frankly because it was easy and met the immediate national security needs.

Field expediency seldom makes good long term policy.

Our world has changed dramatically since 9/11. The Patriot Act and criminalization of a broad category of actions supporting terrorism infrastructure have provided important new legal and intelligence tools to combat terrorism. Where indictments and convictions in the past were not attainable, they are now. The CIA and Department of Justice need to revisit the rationale for renditions to third countries and secret detentions in light of these changes. Prosecution of the terrorist suspects under US law will also go a long way to ensure the US uses legal methods for detention and interrogation and protect the nation from slipping into indefensible policies under the cloak of secrecy and field expediency. Creating a pathway for the transfer of secret detainees to US military and criminal justice systems in a way that will protect intelligence methods will relieve the CIA from the burden of being jail keepers.

This is not a case of choosing between protecting intelligence capabilities and letting terrorists roam free. Nor should it be a case of choosing between our values and our safety. We have the laws we need to support our counterterrorism strategy, we just need the political will to use them.