Stopping Intelligence Scandals Before They Start

Stopping Intelligence Scandals Before They Start

It’s clear now what should have been done to prevent the CIA torture mess.


By Daniel J. Gallington April 16, 2014 | 2:30 p.m. EDT + More

Reading the latest media leaks about the investigation into the CIA’s “enhanced interrogation” program undertaken by the Democratic staff of the Senate Select Committee on Intelligence confirms that I had this story right on in an op-ed I did almost five years ago. No reason to gloat, but in this business there are precious few times when one can say, “I told you so”.

Not only that, in a recent piece here I noted that the high likelihood for abuse, misreporting, non-reporting – i.e., lying – and record destruction in the execution of the program was the primary reason why it should not have been approved. Specifically, I asked: “Could it have perhaps been legal as it was initially described and become Illegal as it was carried out? Certainly. Could this have been a very good reason to have not approved enhanced interrogation in the first place? Oh yes!”

Politically, of course, the investigation is primarily designed to:

•Walk the Democrats totally away from the program. From my arms control days in the 1980’s, I learned the Russians had a good saying for this. It translates into, “We must now walk out of the water, but entirely dry.”

•Totally absolve Congress’ intelligence committees from oversight responsibility for the program. However, in order to do this, the investigation had to also absolve the George W. Bush Administration, and for the same reasons.

•In short, stick it to the CIA and its Bush administration senior leadership for the whole mess.

So assuming the Democrats on the Senate intelligence committee, and perhaps some committee Republicans, have accomplished their basic political objective with the investigation, who’s really to blame and can we prevent this kind of thing from happening again? The short answer: It was the “process,” or lack thereof, for the approval of the enhanced interrogation program that is most likely to blame, and, unfortunately, we probably can’t prevent it from happening again, but absolutely must try our best.

Here’s how this kind of mistake happens.

Recall that the enhanced interrogation program was approved shortly after the 9/11 attacks and early in the George W. Bush administration. We also know from open sources that there was active involvement by the then-CIA general counsel’s office and the Office of Legal Counsel at the Department of Justice because the program operated on the edge of the definition of “torture.”

Ironically perhaps, the process for National Security Council review and approval of especially sensitive intelligence activities was established by a presidential directive signed on the last day of the George H.W. Bush administration, which was kept in effect during the Clinton administration and most likely remained in effect when George W. Bush came into office. And, also ironically, this directive was intended to implement amendments to the National Security Act on “covert actions,” enacted by Congress in reaction to the Iran-Contra affair during the Reagan administration.

The learning curves of the senior people involved at the time enhanced interrogation was reviewed at the National Security Council, were, at best mixed. Recall, however, that we had a holdover from the Clinton administration as George W. Bush’s first director of the CIA, who was also the former Democratic staff director of the Senate intelligence committee and the former director of intelligence programs at the Clinton National Security Council during the 90’s, and as such chaired the NSC committee that reviewed covert action proposals. I represented the DOJ on that committee during most of those years.

So we can’t blame the CIA, at this point in time, for doing what it was supposed to be doing. We had been attacked and it was busy thinking about things it could do to support our response. The enhanced interrogation program, provided it followed strict internal guidelines that had been carefully reviewed and approved at the DOJ, was, possibly, a way to get valuable and unique human intelligence that could, for example, allow us to prevent another attack and learn other critical information about terrorist network planning. The old saying that “it seemed like a good idea at the time” comes to mind. Added to this urgency was a relatively new mix of Bush administration officials at the National Security Council, but a very proactive office of the vice president – and recall that Vice President Dick Cheney was a former secretary of defense.

Recently, of course, we’ve had both Bush and Cheney acknowledge that they personally approved the enhanced interrogation program; also we know that it was briefed to both intelligence committees of the Congress, at least the chairman and vice chairman of the Senate intelligence committee and the chairman and ranking member of the House intelligence committee. Also, if it was briefed as a “covert action” and the president chose to limit the notification to Congress, the Republican and Democratic leaders of both houses would also have been briefed.

So we have a very aggressive human intelligence operation in direct response to the 9/11 attacks. However, it was an operation that probably should not have been approved because it was, from the outset, effectively impossible to manage and keep within the very narrow boundaries of its definitional “legal charter.”

The next set of key questions is: How closely were the approved operations watched, how responsible (and senior) were the reporting chains and what intelligence was produced? Implicit in all these questions is that absolutely all the reporting from the field was complete, accurate and truthful.

If it wasn’t – and that was the inherent weakness of the program from the start – the whole operation was dirty, and seniors up and down the reporting chain should have known it. Furthermore, the very idea of destroying videos of the enhanced interrogations should have been confirmation that the program had turned into the worst possible operation, echoing the Army’s eerily similar scandal at the Abu Ghraib prison.

OK, but have we learned anything from this mess?

I hope so; however, naysayers are not popular in the intelligence business and never have been. It does not take hindsight to know that this program should have been tracked far more carefully, the results looked at daily, the program terminated if it wasn’t producing unique and valuable intelligence and that absolutely no records whatsoever should have been destroyed. Perhaps most importantly: Anyone lying about or misrepresenting any material aspect of the program should have been referred for prosecution or administrative action.

In addition, all the warts and scars of the program should have been briefed regularly to the intelligence committees as soon as they were learned. I have also been on both sides of this process; while sometimes awkward on each side, it is always the best policy for these briefings, and, in my experience, it also keeps the room very quiet.

The best thing we can say about the program? While it may be obvious to everyone now that we should have never done it, such was not obvious at the time. And this, in itself, is a lesson about the intelligence approval process that we must never forget.

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