Sunday, January 08, 2006

Executive Orders

By Melissa Boyle Mahle

Americans are most familiar with Executive Orders in the context of new initiatives started by the US president that may or may not be followed up by new legislation. Presidents issue them fairly frequently as a way to make the government move in a desired direction. These are all public documents. Bush’ first Executive Order was on Faith-based and Community Initiatives. A vanilla topic. Right?

To the intelligence community (IC), they are marching orders. The most important guidelines for the IC are in the form of Executive Orders. EO 12333 signed by President Reagan in December 81 and subsequently updated a number of times. EO 12333 tells the IC what the missions are authorities. EO 12333 contains the language banning assassination, using American journalists and the Peace Corps for covert operations, among many other things.

For the IC, Executive Orders are just the tip of the iceberg. This is the part that is above water, transparent to all Americans. Secret presidential orders, the body of the iceberg, fill in the blanks, providing authorization to take specific actions. Covert Action, for example, requires presidential authorization in the form of a finding (or Memorandum of Notification). If the president wants to secretly overthrow the government in a foreign country, and he wants the CIA to do it, the CIA will draft a finding for the president’s signature. There is always a tension of language on findings. The CIA prefers precise language for organizational self-protection; the White House likes vague text for political deniability. The White House usually wins these struggles, given the power of balance—the CIA works for the President.

Do presidents ever ask the CIA to break US law? Yes. A historical example is during the time of the Nixon administration when Nixon asked the CIA to engage in domestic espionage related to Watergate. DCI Helms famously refused and became political toast.

Is President Bush getting ready to ask the CIA to break US law? Since President Bush and I do not chat on a regular, or irregular, basis, I can only speculate. The “signing statement” Bush issued when he signed McCain anti-torture law makes me wonder.

In essences, Bush is saying in the signing statement that as Commander-in-chief, he reserves the right to waive the law’s restrictions in the name of protecting national security. Or, when it comes to war, the president is above the law and can authorize the CIA to act above the law.

I bet there are some nervous folks over in Langley right now. Since the rather public fight between the CIA and the White House in the run up to the Iraq war and the months that followed, the CIA has been doing its utmost to mend fences and to show that the men and women of the CIA are indeed the president’s men. Director of the CIA Goss has been at the vanguard. How will Goss react if and when he gets pressure from the White House to continue harsh interrogation practices? How will the GS-10 in the prison cell interrogating the al-Qa’ida prisoner react?

I am currently preparing a paper for a conference on Ethics and Intelligence. One of the questions I ponder is what makes good people do bad things. My conclusion is that when an operations officer is called to the Seventh Floor and told that he is being sent out somewhere to do a particularly important and difficult interrogation, that officer is being set up for the ethics test of his life. He is told it is critical, the nation’s security could be at stake; break the guy and bring home the intelligence. The President wants it. I come from this culture and understand the unspoken message: duty, loyalty and mission accomplishment trumps all.

Will Goss take a page out of Helm’s book; or will he follow the path of Bill Casey, the DCI of Iran-Contra fame?

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