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Covert CIA Program Withstands New Furor
Anti-Terror Effort Continues to Grow
By Dana Priest
Washington Post Staff Writer
12/30/05 "Washington
Post" -- -- The effort President Bush
authorized shortly after Sept. 11, 2001, to fight al Qaeda has grown
into the largest CIA covert action program since the height of the
Cold War, expanding in size and ambition despite a growing outcry at
home and abroad over its clandestine tactics, according to former
and current intelligence officials and congressional and
administration sources.
The broad-based effort, known within the agency by the initials GST,
is compartmentalized into dozens of highly classified individual
programs, details of which are known mainly to those directly
involved.
GST includes programs allowing the CIA to capture al Qaeda suspects
with help from foreign intelligence services, to maintain secret
prisons abroad, to use interrogation techniques that some lawyers
say violate international treaties, and to maintain a fleet of
aircraft to move detainees around the globe. Other compartments
within GST give the CIA enhanced ability to mine international
financial records and eavesdrop on suspects anywhere in the world.
Over the past two years, as aspects of this umbrella effort have
burst into public view, the revelations have prompted protests and
official investigations in countries that work with the United
States, as well as condemnation by international human rights
activists and criticism by members of Congress.
Still, virtually all the programs continue to operate largely as
they were set up, according to current and former officials. These
sources say Bush's personal commitment to maintaining the GST
program and his belief in its legality have been key to resisting
any pressure to change course.
"In the past, presidents set up buffers to distance themselves from
covert action," said A. John Radsan, assistant general counsel at
the CIA from 2002 to 2004. "But this president, who is breaking down
the boundaries between covert action and conventional war, seems to
relish the secret findings and the dirty details of operations."
The administration's decisions to rely on a small circle of lawyers
for legal interpretations that justify the CIA's covert programs and
not to consult widely with Congress on them have also helped
insulate the efforts from the growing furor, said several sources
who have been involved.
Bush has never publicly confirmed the existence of a covert program,
but he was recently forced to defend the approach in general terms,
citing his wartime responsibilities to protect the nation. In
November, responding to questions about the CIA's clandestine
prisons, he said the nation must defend against an enemy that "lurks
and plots and plans and wants to hurt America again."
This month he went into more detail, defending the National Security
Agency's warrantless eavesdropping within the United States. That
program is separate from the GST program, but three lawyers involved
said the legal rationale for the NSA program is essentially the same
one used to support GST, which is an abbreviation of a classified
code name for the umbrella covert action program.
The administration contends it is still acting in self-defense after
the Sept. 11 attacks, that the battlefield is worldwide, and that
everything it has approved is consistent with the demands made by
Congress on Sept. 14, 2001, when it passed a resolution authorizing
"all necessary and appropriate force against those nations,
organizations, or persons [the president] determines planned,
authorized, committed, or aided the terrorist attacks."
"Everything is done in the name of self-defense, so they can do
anything because nothing is forbidden in the war powers act," said
one official who was briefed on the CIA's original cover program and
who is skeptical of its legal underpinnings. "It's an amazing legal
justification that allows them to do anything," said the official,
who like others spoke on the condition of anonymity because of the
sensitivity of the issues.
The interpretation undergirds the administration's determination not
to waver under public protests or the threat of legislative action.
For example, after The Washington Post disclosed the existence of
secret prisons in several Eastern European democracies, the CIA
closed them down because of an uproar in Europe. But the detainees
were moved elsewhere to similar CIA prisons, referred to as "black
sites" in classified documents.
The CIA has stuck with its overall approaches, defending and in some
cases refining them. The agency is working to establish procedures
in the event a prisoner dies in custody. One proposal circulating
among mid-level officers calls for rushing in a CIA pathologist to
perform an autopsy and then quickly burning the body, according to
two sources.
In June, the CIA temporarily suspended its interrogation program
after a controversy over the disclosure of an Aug. 1, 2002,
memorandum from the Justice Department's Office of Legal Counsel
that defined torture in an unconventional way. The White House
withdrew and replaced the memo. But the hold on the CIA's
interrogation activities was eventually removed, several
intelligence officials said.
The authorized techniques include "waterboarding" and "water
dousing," both meant to make prisoners think they are drowning; hard
slapping; isolation; sleep deprivation; liquid diets; and stress
positions -- often used, intelligence officials say, in combination
to enhance the effect.
Behind the scenes, CIA Director Porter J. Goss -- until last year
the Republican chairman of the House intelligence committee -- has
gathered ammunition to defend the program.
After a CIA inspector general's report in the spring of 2004 stated
that some authorized interrogation techniques violated international
law, Goss asked two national security experts to study the program's
effectiveness.
Gardner Peckham, an adviser to then-House Speaker Newt Gingrich (R-Ga.),
concluded that the interrogation techniques had been effective, said
an intelligence official familiar with the result. John J. Hamre,
deputy defense secretary under President Bill Clinton, offered a
more ambiguous conclusion. Both declined to comment.
The only apparent roadblock that could yet prompt significant change
in the CIA's approach is a law passed this month prohibiting torture
and cruel and inhumane treatment of prisoners in U.S. custody,
including in CIA hands.
It is still unclear how the law, sponsored by Sen. John McCain (R-Ariz.),
will be implemented. But two intelligence experts said the CIA will
be required to draw up clear guidelines and to get all special
interrogation techniques approved by a wider range of government
lawyers who hold a more conventional interpretation of international
treaty obligations.
"The executive branch will not pull back unless it has to," said a
former Justice Department lawyer involved in the initial discussions
on executive power. "Because if it pulls back unilaterally and
another attack occurs, it will get blamed."
The Origins
The top-secret presidential finding Bush signed six days after the
Sept. 11 attacks empowered the intelligence agencies in a way not
seen since World War II, and it ordered them to create what would
become the GST program.
Written findings are required by the National Security Act of 1947
before the CIA can undertake a covert action. A covert action may
not violate the Constitution or any U.S. law. But such actions can,
and often do, violate laws of the foreign countries in which they
take place, said intelligence experts.
The CIA faced the day after the 2001 attacks with few al Qaeda
informants, a tiny paramilitary division and no interrogators, much
less a system for transporting terrorism suspects and keeping them
hidden for interrogation.
Besides fighting the war in Afghanistan, the agency set about to put
in place an intelligence-gathering network that relies heavily on
foreign security services and their deeper knowledge of local
terrorist groups. With billions of dollars appropriated each year by
Congress, the CIA has established joint counterterrorism
intelligence centers in more than two dozen countries, and it has
enlisted at least eight countries, including several in Eastern
Europe, to allow secret prisons on their soil.
Working behind the scenes, the CIA has gained approval from foreign
governments to whisk terrorism suspects off the streets or out of
police custody into a clandestine prison system that includes the
CIA's black sites and facilities run by intelligence agencies in
other countries.
The presidential finding also permitted the CIA to create
paramilitary teams to hunt and kill designated individuals anywhere
in the world, according to a dozen current and former intelligence
officials and congressional and executive branch sources.
In four years, the GST has become larger than the CIA's covert
action programs in Afghanistan and Central America in the 1980s,
according to current and former intelligence officials. Indeed, the
CIA, working with foreign counterparts, has been responsible for
virtually all of the success the United States has had in capturing
or killing al Qaeda leaders since Sept. 11, 2001.
Bush delegated much of the day-to-day decision-making and the
creation of individual components to then-CIA Director George J.
Tenet, according to congressional and intelligence officials who
were briefed on the finding at the time.
"George could decide, even on killings," one of these officials
said, referring to Tenet. "That was pushed down to him. George had
the authority on who was going to get it."
The Lawyers
Tenet, according to half a dozen former intelligence officials,
delegated most of the decision making on lethal action to the CIA's
Counterterrorist Center. Killing an al Qaeda leader with a Hellfire
missile fired from a remote-controlled drone might have been
considered assassination in a prior era and therefore banned by law.
But after Sept. 11, four former government lawyers said, it was
classified as an act of self-defense and therefore was not an
assassination. "If it was an al Qaeda person, it wouldn't be an
assassination," said one lawyer involved.
This month, Pakistani intelligence sources said, Hamza Rabia, a top
operational planner for al Qaeda, was killed along with four others
by a missile fired by U.S. operatives using an unmanned Predator
drone, although there were conflicting reports on whether a missile
was used. In May, another al Qaeda member, Haitham Yemeni, was
reported killed by a Predator drone missile in northwest Pakistan.
Refining what constitutes an assassination was just one of many
legal interpretations made by Bush administration lawyers. Time and
again, the administration asked government lawyers to draw up new
rules and reinterpret old ones to approve activities once banned or
discouraged under the congressional reforms beginning in the 1970s,
according to these officials and seven lawyers who once worked on
these matters.
Gen. Michael V. Hayden, deputy director of national intelligence,
has described the administration's philosophy in public and private
meetings, including a session with human rights groups.
"We're going to live on the edge," Hayden told the groups, according
to notes taken by Human Rights Watch and confirmed by Hayden's
office. "My spikes will have chalk on them. . . . We're pretty
aggressive within the law. As a professional, I'm troubled if I'm
not using the full authority allowed by law."
Not stopping another attack not only will be a professional failure,
he argued, but also "will move the line" again on acceptable legal
limits to counterterrorism.
When the CIA wanted new rules for interrogating important terrorism
suspects the White House gave the task to a small group of lawyers
within the Justice Department's Office of Legal Counsel who believed
in an aggressive interpretation of presidential power.
The White House tightened the circle of participants involved in
these most sensitive new areas. It initially cut out the State
Department's general counsel, most of the judge advocates general of
the military services and the Justice Department's criminal
division, which traditionally dealt with international terrorism.
"The Bush administration did not seek a broad debate on whether
commander-in-chief powers can trump international conventions and
domestic statutes in our struggle against terrorism," said Radsan,
the former CIA lawyer, who is a professor at William Mitchell
College of Law in St. Paul, Minn. "They could have separated the big
question from classified details to operations and had an open
debate. Instead, an inner circle of lawyers and advisers worked
around the dissenters in the administration and one-upped each other
with extreme arguments."
At the CIA, the White House allowed the general counsel's job,
traditionally filled from outside the CIA by someone who functioned
in a sort of oversight role, to be held by John Rizzo, a career CIA
lawyer with a fondness for flashy suits and ties who worked for
years in the Directorate of Operations, or D.O.
"John Rizzo is a classic D.O. lawyer. He understands the culture,
the intelligence business," Radsan said. "He admires the case
officers. And they trust him to work out tough issues in the gray
with them. He is like a corporate lawyer who knows how to make the
deal happen."
These lawyers have written legal justifications for holding suspects
picked up outside Afghanistan without a court order, without
granting traditional legal rights and without giving them access to
the International Committee of the Red Cross.
CIA and Office of Legal Counsel lawyers also determined that it was
legal for suspects to be secretly detained in one country and
transferred to another for the purposes of interrogation and
detention -- a process known as "rendition."
Lawyers involved in the decision making acknowledge the uncharted
nature of their work. "I did what I thought the best reading of the
law was," one lawyer said. "These lines are not obvious. It was a
judgment."
Credit and Blame
One way the White House limited debate over its program was to
virtually shut out Congress during the early years. Congress, for
its part, raised only weak and sporadic protests. The administration
sometimes refused to give the committees charged with overseeing
intelligence agencies the details they requested. It also cut the
number of members of Congress routinely briefed on these matters,
usually to four members -- the chairmen and ranking Democratic
members of the House and Senate intelligence panels.
John D. Rockefeller IV (W.Va.), ranking Democrat on the Senate
Select Committee on Intelligence, complained in a 2003 letter to
Vice President Cheney that his briefing on the NSA eavesdropping was
unsatisfactory. "Given the security restrictions associated with
this information, and my inability to consult staff or counsel on my
own, I feel unable to fully evaluate, much less endorse, these
activities," he wrote.
Rockefeller made similar complaints about the CIA's refusal to allow
the full committee to see the backup material supporting a skeptical
report by the CIA inspector general in 2004 on detentions and
interrogations that questioned the legal basis for renditions.
Some former CIA officers now worry that the agency alone will be
held responsible for actions authorized by Bush and approved by the
White House's lawyers.
Attacking the CIA is common when covert programs are exposed and
controversial, said Gerald Haines, a former CIA historian who is a
scholar in residence at the University of Virginia. "It seems to me
the agency is taking the brunt of all the recent criticism."
Duane R. "Dewey" Clarridge, who directed the CIA's covert efforts to
support the Nicaraguan contras in the 1980s, said the nature of CIA
work overseas is, and should be, risky and sometimes ugly. "You have
a spy agency because the spy agency is going to break laws overseas.
If you don't want it to do those dastardly things, don't have it.
You can have the State Department."
But a former CIA officer said the agency "lost its way" after Sept.
11, rarely refusing or questioning an administration request. The
unorthodox measures "have got to be flushed out of the system," the
former officer said. "That's how it works in this country."
Researcher Julie Tate contributed to this report.
© 2005 The Washington Post Company
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