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Who’s Minding the CIA?

Image has not been found. URL: /wp-content/uploads/2008/09/rockefeller-hayden.jpgSen. Kit Bond (R-Mo.) with Intelligence Committee chairman Sen. Jay Rockefeller (D-WVa.) after a briefing with CIA Director Michael Hayden on the destroyed CIA interrogation tapes. (Lauren Burke, WDCPix)

American intelligence has a serious problem.

But it is not that the former head of the Central Intelligence Agency’s clandestine services, Jose Rodriquez, allegedly destroyed, in 2005, the videotapes of the enhanced interrogations of terrorist detainees. No, the real problem is that institutional oversight of the intelligence community has failed. It is dysfunctional, perhaps irreparably so. There is no adult supervision of American intelligence or how the White House chooses to use it.

Spying.jpg
Spying.jpg

Illustration by: Matt Mahurin

Like many Washington stories, the fury over the destruction of the videotapes of CIA interrogations is misdirected. It has diverted to the usual demands to know who did what, how far up the ladder the blame game can be played, and when will we get to see a perp walk on cable news. Some fine American intelligence officers have lawyered up, and are looking ahead to big legal fees. Congressional and media outrage are cloaked in the usual sanctimony of a quest for accountability. Yet the outrage on Capitol Hill seems oddly muted — as if there is some bipartisan agreement in hoping it will go away. Perhaps, like many Washington dramas, this one, too, will just veer off and, ultimately, fade away.

That the tapes actually existed, but were destroyed under such questionable circumstances, makes the story all the more enticing; the perceptions of what was on the tapes are now limited only by the imagination. When I first heard that the so-called enhanced interrogation techniques had been videotaped, my first reaction was, “what were they thinking?” Is there simply no adult supervision left in Washington? How did we get from the glowing promise of a Pax Americana when the Berlin Wall fell to this sorry state?”

In short order, we have passed such unaccustomed American milestones as preemptive war, Abu Ghraib, enhanced interrogation techniques, allegations of torture and legal opinions downgrading the relevance of the Geneva Conventions. Americans and the world have been told repeatedly that “we don’t torture”, but such denials have fallen into the same sorting bin as Richard M. Nixon’s declaration, “I am not a crook.” History will only remember “torture” and “crook.”

The House and Senate committees that now oversee intelligence were established by Congress more than three decades ago, to deal with problems rooted in the abuse of executive power and the CIA. In the last 30 years, the system has worked only when government was split between the White House and Congress — and then only moderately well. It has worked far less well — or not at all — during periods of one-party rule, like the first six years of the Bush administration.

But other practices undermine attempts to maintain strong intelligence oversight. Under the rules, particularly sensitive activities, including most covert actions ordered by the president, can be briefed to just the chairs and ranking members of the two committees – the “gang of four.” These politically sensitive briefings are sometimes expanded to include the majority and minority leaders of both house of Congress — a so-called “gang of eight.” While perhaps not initially intended to weaken the oversight system, briefings to the gangs of four or eight now regularly do just that.

In such limited briefings, it is the administration’s call whether congressional staffers may be present, or even if the members are allowed to take notes. Without notes, transcripts or the recollections of congressional staffers, the result is, at best, confusion. This is not to suggest that members of Congress are either clueless or disinterested — rather, it is an acknowledgement that most members, when separated from their staffs and the written record, are, to be kind, disadvantaged.

Their disadvantage is compounded by the fact that the intelligence briefers are in control of the meeting agenda. They determine what facts are presented and in what light. In times of fear-driven national distress, like now, a briefing on getting tough with the people who wish us harm may be made to sound eminently reasonable — regardless of the realities involved in the fine print. If, later, there is an intelligence flap, the administration can say that Congress was briefed and on board. The members of Congress can cry foul. It all soon deteriorates into a “he said, she said” standoff.

This may be what has happened in the case of the destroyed videotapes. It appears there was, indeed, a “gang of eight” briefing on the enhanced interrogation techniques — but without notes or transcripts to fall back on. The Democrats have cried foul, but only faintly, since the administration and the Republicans can rightly say that they were briefed. We should not expect the Democrats to pursue the issue any more than we should expect the Justice Department to appoint a special prosecutor. Why investigate yourself? That could take a little courage, something in short supply on Capitol Hill.

Regardless of how the tapes case plays out, it is time to end the sleight-of-hand nonsense we now call oversight. It is time to give it some teeth — not only to keep our intelligence activities in line with our fundamental beliefs, but also to protect the men and women in the intelligence community. With the reasonable expectation that stretches of effectively one-party rule will occur, entirely new solutions will be needed. (We would be prudent to assume that there would be little difference if the Democrats take both ends of Pennsylvania Avenue next January. One-party rule has its way of corrupting.)

One might consider creating a select, non-partisan, independent committee outside Congress to augment the committees in the House and the Senate. Such a committee could be open to the “gang of eight,” and have a retired senior official from each of CIA, FBI, and the State, Defense and Justice Departments. There might also be a sitting federal judge, perhaps appointed by a previous administration.

In those instances where sensitive intelligence activities are to be briefed to the gangs of four or eight, the committee would also be briefed. It would have standing authority to maintain transcripts of the briefings. If there were disputes over any activity briefed to the committee by the White House, the committee would have the authority to take the issue to the full oversight committees of the House and Senate. It would also have the authority to take the contested issues to the White House. Any variation of this approach could be considered, as long as the result puts us back on course.

The beneficiaries of reestablishing genuine intelligence oversight would not only be the overall foreign policy of the United States and its badly tarnished international reputation. It would also benefit the men and women of the intelligence community, who, without some changes, will ultimately be left holding the bag. Twenty-six of their colleagues were indicted last year by NATO ally Italy. More will surely follow.

Milt Bearden, a 30-year veteran in the C.I.A.’s Directorate of Operations, served as senior manager for clandestine operations. He is the co-author with James Risen of ”The Main Enemy: The Inside Story of the C.I.A.’s Final Showdown with the K.G.B.”

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