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Of “Wet Work” and Congressional Reporting: The Scandal That (Apparently) Isn’t

The latest kerfluffle in Congress over intelligence oversight – which some Democrats apparently see as a way to make up political ground lost by the embarrassing antics of the opportunistically amnesiac Nancy Pelosi – concerns what the newspapers claim was a plan to unleash secret CIA hit teams against al-Qa’ida terrorist leaders around the world.  This is not a debate about the legality or morality of assassination, for no one seems to question the idea that it is permitted to target enemy combatants who have taken up arms against you.  (That is just warfare, not “assassination.”)  Rather, the debate is about a very inside-the-beltway sort of problem: compliance with the Congressional reporting requirements of the National Security Act of 1947 regarding covert activities.

What did the law require when the CIA is said to have begun looking into setting up teams of what the Washington Post breathlessly called “specially trained assassins”?  The National Security Act defined “covert action” as an activity meant to influence political, economic, or military conditions abroad, where it is intended that the U.S. role will not be revealed.  Targeted killings of terrorist enemy combatants by the CIA clearly qualified.  In order to authorize such activity, the President had formally to make a special written “finding” setting out his reasons.  According to media reports, at least, President Bush made just such a finding in late 2001, authorizing the U.S. Intelligence Community (IC) to capture or kill members of al-Qa’ida.  This finding was the basis upon which the CIA proceeded with its now well-known program of killing terrorists with Hellfire missiles launched from unmanned Predator aircraft.

If recent reports are to be believed, while the innovative and unprecedented “death drone” program was getting underway, the CIA began looking into the option of using teams of real-live humans to kill terrorists as well.  The use of such hit squads is common in espionage fiction, of course, and they have been used in the counter-terrorist arena for many years by other countries, not least by Israel.  In a sense, therefore, it would have been shocking had the CIA not at least considered the use of such teams.

From my position on the staff of the Senate Select Committee on Intelligence at the time, in fact, I was surprised to have seen no reports of such planning.  I feared that the Agency had become so intimidated by years of Congressional punishment for its limited (and bungled) assassination plots of the 1950s and 1960s that the idea of actually using people to kill people had frightened risk-averse IC bureaucrats out of their wits.  We apparently now know, however, that the CIA did at least consider the idea after the terrorist attacks of September 2001 – though perhaps I was not entirely wrong about Washington’s timidity.  (According to press reports, the CIA didn’t do much in eight years of such planning, and the very notion seems to have horrified CIA Director Leon Panetta and his masters in the Obama Administration – who immediately canceled the program.  The new team in Washington is happy to continue raining mayhem upon terrorists in antiseptic push-button attacks from unmanned aircraft, but apparently lacks the stomach to send killers to do such sanguinary work face to face.)

The question over which Congressional Democrats began screaming in July 2009, in their efforts to discredit the counter-terrorism legacy of the Bush Administration, seems to be simply whether the CIA properly reported to Congress those specific aspects of its work that concerned such hit teams.  There does not appear to be any dispute that the Agency properly notified Congress of the 2001 finding itself, nor of the fact that actual killings were underway through the use of Predator aircraft.  How seriously should we take their complaints that this is “just another” instance of the Bush Administration’s contempt for the law?  If you ask me, the clear answer is: “Not very.”

The National Security Act provided that the IC had to keep the Congressional intelligence committees “fully and currently informed of all covert actions.”  If a covert action were particularly sensitive, however, the President was authorized to limit reporting to the majority and minority leaders of both congressional chambers and of the House and Senate intelligence committees – eight persons in total.  In the most extraordinary of circumstances, in fact, the President may have had some flexibility also to delay Congressional reporting until after the fact.  The Act envisioned – and indeed “otherwise provided” – that in some situations, a covert action finding might not be reported pursuant ahead of time.  In such case, the President “shall fully inform the intelligence committees in a timely fashion and shall provide a statement of the reasons for not giving prior notice.”

To evaluate what the CIA should have been expected to do in reporting its activities under the 2001 finding, it is worth understanding what a deliberately ambiguous and flexible system was established under these provisions of the Act.  To begin with, it has always been clear that the requirement to keep Congress “fully and currently informed of all covert actions” simply cannot be taken literally.  As with similar provisions requiring that Congress be “fully and currently informed of all intelligence activities,” it would clearly be both impossible and undesirable for the Executive Branch to try to fulfill this requirement to the letter.  Even were it possible to do so in ways consistent with security, telling the oversight committees everything about every activity in real time would yield a torrent of data that would overwhelm the committees’ capacity to do anything with it.  This is an old litigator’s trick: respond to document discovery requests by flooding one’s adversary with more paper than he can possibly read.

Oversight on such terms would be no oversight at all, so both the Executive Branch and Congress long ago reached an implicit agreement that being kept fully and currently informed of all activities doesn’t literally mean being fully and currently informed of all activities.  Rather, as is the case with relationships between coordinate branches of our government in some other areas of national security law (e.g., war powers), the two sides have been content to live out the specific and sometimes quite flexible parameters of their statutorily-bounded relationship through an iterated game of informal rule definition based in ongoing practice.  This is not an area of law in which there are too many “bright line” rules, and there probably shouldn’t be.

Don’t get me wrong.  There is a good deal of ambiguity that is necessarily built into such a system, and it is clearly a process that is highly deferential to the national security discretion of the Executive Branch, but this does not mean that the IC never plays fast and loose with reporting requirements.  IC briefers have for years restricted reporting of some sensitive “ordinary” (i.e., not covert action) intelligence activities to the “Gang of Eight,” for example, even though the National Security Act only provides express authority to do so in cases of covert action.  The Executive Branch does this ostensibly – and not always unreasonably – for reasons of security, but also in part because this is a way to undercut Congress’ ability to exercise its oversight functions.  It is terribly difficult for top-level “Gang of Eight” legislators to put information in context and do any meaningful follow-up if they only learn about something in a private one-on-one briefing, cannot keep any notes they take, and cannot inform or involve any of the experts on their staffs.  Too often, such restrictive procedures allow the IC to say it briefed Congress without Congress having been really informed in any particularly useful way.  Unfortunately, however, our legislators have long acquiesced in this, so it’s hard to blame the spies too much for continuing the practice.

But the current purported “scandal” isn’t about such reporting games: it is about whether the CIA should have told Congress anything at all about its purported work to develop counter-terrorist hit squads.  Apparently, it said nothing for eight years, until Panetta cancelled the program.  How does the CIA’s performance measure up against the framework established by the National Security Act?

To some extent, this question is presently unanswerable in public – and probably should remain so.  Too little has been revealed about the precise contours of the alleged program and how far it progressed.  It is possible to offer some basic guidance, however, to help make sense of whatever details do emerge as our congenitally loose-lipped government officials fight yet another political and bureaucratic battle of press leaks and selective media “spin” using classified information.

If all the CIA managed to do was to drag out the alleged hit squad program as some kind of extended feasibility study, it would be hard to argue that Congressional briefings were required.  The underlying finding itself was apparently properly reported, and the oversight committees knew that targeted killings were underway (by Predators).  Congress knew that the Agency was back in the business of killing people.  Moreover, since the first much-reported swarm of CIA and military Special Forces personnel into Afghanistan in late 2001 and early 2002, the whole world knew that at least some U.S. personnel were out there hunting, in person, for al-Qa’ida combatants.  (Remember all those Congressional Democrats who poured derision upon President Bush for not being able to find and kill Osama bin Laden?)  It beggars belief that the CIA would have been under any obligation to report a mere feasibility study for such an unsurprising additional foray into what the Soviet KGB used to call “wet work.”

Similarly, merely gathering information in support of possible targeted killings would probably not require Congressional reporting either.  Everyone already knew, and the U.S. Government freely admitted, that we were trying to find al-Qa’ida’s leaders.  And we weren’t just trying to bring them before a judge.  As President Bush so memorably put it, the idea was quite openly either to bring our terrorist attackers to justice or to “bring justice to them.”  In any event, the National Security Act expressly defined out of the covert action reporting requirements any activities “the primary purpose of which is to acquire intelligence.”  (The location of your enemies is quintessentially intelligence information.)

According to some recent reports, the CIA program may have gotten to the point of beginning to train agents for such missions.  This would be much more in the “gray area” of Congressional reporting than merely a feasibility study, but the case is by no means cut and dried.  The argument for reporting would be stronger still if the reputed program had progressed all the way to operational status – or of actually trying to kill someone – but no press account to date has suggested that things got this far.  In any event, even here there is room for flexibility.  As we have seen, it might have been possible, as expressly contemplated in the National Security Act, for the President to send the CIA after a target and to tell Congress only afterwards.  Indeed, if the program were cancelled before anything actually transpired, “afterwards” could simply mean “never.”

All in all, therefore, there seems to be much less to this intelligence oversight “scandal” than one would think from reading overheated accounts of Congressional critics trying to score post hoc political points against the previous administration.  There is room for lively debate about what the details of this alleged program actually were, and about precisely what should have been reported to whom.  This debate, however, is less a legal debate than a policy one: on present information, it is hard to point to any specific reporting requirement that was traduced by George Tenet’s CIA.

This episode will be another data point in the evolving history of Congressional-Executive relations in intelligence oversight, and each side may well adjust its future dealings with the other in light of the controversy.  Let no one pretend, however, that this squabble is about “lawlessness” by the IC or by the Bush Administration.  So far, the only actual contempt for intelligence oversight law that has been on display comes from those who care more about finding political advantage in opportunistic finger-pointing than in really understanding the legal framework of covert action reporting requirements.

-- Christopher Ford


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