** There are five digits that a generation of CIA case officers must commit to heart: 12333, as in executive order 12333, which was issued by Ronald Reagan in 1981 and which banned political assassinations, albeit vaguely" "No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination." At the same time, 12333 states that "[n]o agency except the CIA (or the Armed Forces of the United States in time of war declared by Congress or during any period covered by a report from the President to the Congress under the War Powers Resolution (87 Stat. 855)1) may conduct any special activity unless the President determines that another agency is more likely to achieve a particular objective." The clause allows the CIA to help the DoD target the leaders of nations or entities (like a terrorist group) with whom we are at war. In theory, those operations are confined to a country where Congress has authorized the President to use force.
Secret intelligence services are indubitably among the most difficult institutions to reconcile with the values of modern, Democratic government. And yet, in the modern age, civilian intelligence gathering confers a decision advantage that our elected officials often use to reduce the likelihood of war or catastrophe. Should the intelligence agency be an independent truth-teller? Should it speak truth to power, serving as a check on policy-makers? Given the experience of the past nine years or so, it would be mighty tempting to say, Yes, of course. After all, it was the Bushies who manipulated intelligence to serve their policy goals, right?
This is too simple a story. The Bush administration did not trust the CIA and scapegoated the agency after the twin (collective) failures of 9/11 and the question of whether Saddam Hussein was concealing a weapons of mass deception program. (Former Vice President Dick Cheney and Defense Secretary Donald Rumsfeld set the tone for the rest of the office of the president by advising extreme caution whenever dealing with CIA.) For an administration so theoretically savvy about the dark arts, they made a hash out of the resources they had. The Pentagon assumed the principle intelligence gathering role for the government. And so, for a few years, the CIA kind of went rogue, functioning, to be sure, but functioning with an eye toward politics and toward preserving their budget and status. And so, for a few years, it seemed (to the administration) as if the CIA kind of went rogue, functioning, to be sure, but functioning with an eye toward politics and toward preserving their budget and status in an era when Congress was determined to implement the recommendations of the 9/11 commission, recommendations that stripped power from the agency. (This period ended in late 2006.)
One of the fascinating questions about the latest revelation from Langley -- that Dick Cheney ordered CIA chieftains not to brief Congress -- is stunning in the face of evidence that CIA officials in the latter Bush years routinely circumvented the wishes of the executive branch. A former very senior intelligence official who did not like Cheney told me today that Cheney never asked him not to brief Congress, and the program was small and never operational. It the content of the Al Qaeda hunt, the CIA did not believe that Congress would find a briefing useful. Another former intelligence official wonders whether Panetta was too eager to tell Congress, too eager to make a political gesture to House Democrats, that he over-briefed by telling members everything that program managers had contemplated, including the possibility -- never authorized and never put into practice -- of conducting assassination operations in countries not contiguous to battlefields.
The CIA was never set up to be an independent agency. It was set up to be a gatherer of relevant intelligence for the political branches, and chief among them, the president and the National Security Council. The CIA, in other words, is the ultimate presidential enabler. It is not set up to serve as a check on the executive branch; Congress is not sufficiently empowered, either constitutionally or statutorily, to provide the oversight that would be necessary were the CIA to be the independent agency that its longtime mandarins constructed it to be during the Bush administration. Trust between the executive branch and the CIA is crucial, as is effective Congressional oversight. The two trusts are often at odds.
By hook or by crook, the House of Representatives and the Central Intelligence Agency are on a collision course. It is hard to find a knowledgeable observer who will defend either institution's political conduct over the past six months, although, perhaps unsurprisingly, many find the CIA to be in an impossible position.
Leon Panetta, the CIA director, is in an impossible position. During the presidential transition, Obama was advised to select a CIA chief he could trust and one who would rebuild relations with Congress. After the trial balloon of John Brennan fell on flat ears in Congress -- Obama likes Brennan precisely because Brennan served the former president and had changed his mind, thus giving the former CIA operations officer a stake in getting it right -- Panetta emerged as the right model of a pick from the perspective of a president: the former chief of staff knows what intelligence can contribute to a functioning national security establishment. Panetta, of course, inherited a demoralized agency, one with a bone to pick about how it was treated over the past six years, an agency that worried about the sort of ex-post facto scrutiny that Democrats were bound to give it. The CIA believes it deserves the benefit of the doubt, but history counsels otherwise, as Shane Harris's recent National Journal cover story makes clear.
What will the House investigative? Here's a primer:
** It seems so simple -- a "capacity" to train assassination teams to kill Al Qaeda leaders. A presidential finding authorized the formation of these teams, but the Bush administration chose to use a different authority and a different agency -- the Department of Defense -- to carry out the stated goals of the finding. In an of itself, a small program designed to give the CIA an assassinations capacity against enemies of the state isn't controversial. What might be is whether the CIA program was ever intended to target Al Qaeda leaders who weren't in Afghanistan or Pakistan or Iraq; whether the CIA was preparing so-called "wet work" in allied or fremenistic countries without express permission from the host government. If that's the reason why CIA never implemented the program, then good for them.
** But George W. Bush wasn't the first president to contemplate or conduct offensive "special action" against terrorists operating anywhere in the world. President Clinton, in fact, signed Presidential Decision Directive 62, which directed the CIA to kidnap and even terminate (or "dirsupt") terrorist networks worldwide. At Steve Coll's Ghost Wars, the definitive intelligence history of the period, makes clear, the CIA acquiesced but balked, not wanting to empower the National Security Council (post-Iran contra) to run secret counterterrorist operations without the consent of Congress. Long story short: the CIA developed during the Clinton years the very same capacity that it was asked to develop during the Bush years.
** There has been astonishingly little legal or public debate about whether the President of the United States has the inherent authority to order his armed forces to preventatively detain or proactively assassinate suspected terrorist leaders anywhere in the world on the basis of intelligence collected. The best primer on the subject is Kenneth Anderson's, who has written most recently on the subject here. This is a debate worth having.