Law CIa
Law CIa
Law CIa
For those working at the confluence of law and national security, the
President has made clear that ours is a nation of laws, and that an abiding
respect for the rule of law is one of our country’s greatest strengths, even
against an enemy with only contempt for the law. This is so for the Central
Intelligence Agency no less than any other instrument of national power
engaged in the fight against al Qaeda and its militant allies or otherwise
seeking to protect the United States from foreign adversaries. And that is
the central point of this piece: Just as ours is a nation of laws, the CIA is an
institution of laws, and the rule of law is integral to Agency operations.
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destruction, the conduct of non-state actors and rogue states outside the
community of nations, cyber security, or the rise of new powers. The
nation’s leaders cannot fully understand these issues or make informed
policy on these issues without first-rate intelligence.
Putting these two dynamics together – the multitude of different
national security issues and the fact that intelligence is critical to almost all
of them – it may be that intelligence has never been more important than it
is today. At the very least, the intel business is booming.
So what does the CIA do? Our work boils down to three jobs. To
quote from the National Security Act of 1947:
If that is, in essence, the business of the CIA, what about the rule of
law? And, in particular, why do I say that the rule of law is integral to
Agency operations? The answer is that all intelligence activities of the
Agency must be properly authorized pursuant to, and must be conducted in
accordance with, the full body of national security law that has been put in
place over the six-plus decades since the creation of the CIA. And all such
activities are subject to strict internal and external scrutiny. This breaks
down into three propositions:
First, all intelligence activities of the Agency must be properly
authorized pursuant to the law. In this respect, the constraints on the
Agency exceed those on virtually any organization in the private sector. A
business enterprise is free to do whatever it wants in pursuit of profit,
shareholder value, or what-have-you, provided it does not violate the
proscriptions of positive law. By contrast, the CIA cannot do anything
without an affirmative grant of legal authority to engage in that activity. In
some cases, such as foreign intelligence collection, the grant may be broad;
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in others, such as covert action, the grant of authority might be quite narrow
and specific, and subject to numerous conditions. In any event, before any
step is taken, the threshold question asked when considering a contemplated
activity is, do we have the legal authority to act?
Second, all intelligence activities of the Agency must be conducted in
accordance with the law. Assuming there is legal authority to act in the first
place, all steps taken must comply with applicable prohibitions and
limitations embodied in the U.S. Constitution, federal statutes, Executive
Orders and other Presidential directives, and Agency regulations. To single
out some of them:
It is true that a lot of what the CIA does is shielded from public view,
and for good reason: much of what the CIA does is a secret! Secrecy is
absolutely essential to a functioning intelligence service, and a functioning
intelligence service is absolutely essential to national security, today no less
than in the past. This is not lost on the federal judiciary. The courts have
long recognized the state secrets privilege and have consistently upheld its
proper invocation to protect intelligence sources and methods from
disclosure. Moreover, federal judges have dismissed cases on justiciability
or political question grounds, acknowledging that the courts are, at times,
institutionally ill-equipped and constitutionally incapable of reviewing
national security decisions committed to the President and the political
branches.
While public and judicial scrutiny may be limited in some respects, it
simply does not follow that Agency activities are immune from meaningful
oversight. First, there is direct supervision by the National Security Council
and the President, who, after all, not only is constitutionally responsible for
keeping the American people safe, but also “shall take Care that the Laws
be faithfully executed.” Beyond that, consider this catalog of Agency
overseers:
I have described the legal regime in which CIA operates. Now I would
like to illustrate how the law is applied in practice, by reference to a
hypothetical case.
Suppose that the CIA is directed to engage in activities to influence
conditions abroad, and that the hand of the U.S. Government is to remain
hidden – in other words covert action – and suppose that those activities
may include the use of force, including lethal force. How would such a
program be structured so as to ensure that it is entirely lawful? Approaches
will, of course, vary depending on the circumstances – there is no single,
cookie-cutter approach – but I conceive of the task in terms of a very simple
matrix. First is the issue of whether there is legal authority to act in the first
place. Second, there is the issue of compliance with the law in carrying out
the action. For each of these issues, we would look first, and foremost, to
U.S. law. But we would also look to international law principles. So
envision a four-box matrix with “U.S. Law” and “International Law” across
the top, and “Authority to Act” and “Compliance in Execution” down the
side. With a thorough legal review directed at each of the four boxes, we
would make certain that all potentially relevant law is properly considered
in a systematic and comprehensive fashion.
When I say “we,” I don’t mean to suggest that these judgments are
confined to the Agency. To the contrary, as the authority for covert action
is ultimately the President’s, and covert action programs are carried out by
the Director and the Agency at and subject to the President’s direction,
Agency counsel share their responsibilities with respect to any covert action
with their counterparts at the National Security Council. When warranted
by circumstances, we – CIA and NSC – may refer a legal issue to the
Department of Justice. Or we may solicit input from our colleagues at the
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Switching gears, let us consider a real world case in point: the operation
against Osama bin Laden in Abbottabad, Pakistan, on May 2nd [local time].
My purpose is not to illustrate our hypothetical program, but to show that
the rule of law reaches the most sensitive activities in which the Agency is
engaged.
The bin Laden operation was, of course, a critically important event in
the fight against al Qaeda. Much has been said and written about the
operation in this regard, and I won’t dwell on it now. Rather, I want to
focus on the legal aspect of the operation. But if you will indulge me, there
are a few other aspects of this historic event that warrant mention up front.
First, finding bin Laden was truly a triumph of intelligence. It’s a long
story – too long to tell here – but it begins nine years earlier, with the nom
de guerre of an al Qaeda courier. Through painstaking collection and
analysis over several years, the Agency and its partners in the Intelligence
Community determined his true name. Finding the courier and then his
residence in Abbottabad took another year of hard work. Instead of a small
house from which the Agency hoped to follow him to bin Laden, the
Abbottabad compound suggested immediately the possibility that bin Laden
was living there. Extraordinarily high walls, barbed wire, no telephone or
Internet service, trash burned instead of put out for collection like
everybody else’s, children not going to school. Then we learned that an
additional family matching the expected profile of bin Laden’s family in
flight was living at the compound, never left it, and was unknown to the
neighbors. And we learned that the courier was, nine years later, still
working for al Qaeda. It all added up – the only conclusion that made sense
of it all was that bin Laden was there. But there was no positive ID.
Which leads to the next point: This was also an example of difficult and
momentous Presidential decision-making. There was strong circumstantial
evidence that bin Laden was there, but not one iota of direct evidence. No
eyes-on identification. And the risks and potential consequences of
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CONCLUSION
When I talk about the CIA and the rule of law, I speak of the business
of the Agency and sometimes draw an analogy between the Agency and a
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