Unleashing the rogue elephant: September 11 and letting the CIA be the CIA.

• Author: Hitz, Frederick P.

Media outlets have argued that the United States has had an "intelligence failure", decrying the intelligence community for failing to warn the American people of the September 11 attacks on the World Trade Center in New York and on the Pentagon in Virginia. In addition, there is constant clamor that the Central Intelligence Agency (CIA) has been unwisely stifled since the Church Committee hearings of 1975-76 (1) and the resultant executive orders of Presidents Ford, Carter, and Reagan that sought to govern the conduct of intelligence activities. (2) There is a cry to unleash the CIA from its perceived legal and policy restrictions and permit it to fight the terrorist threat facing the United States on terms that will succeed against this pernicious force. Some of this impetus comes from a rash of recent studies such as the report of the bipartisan National Commission on Terrorism (NCT), which urged the Director of Central Intelligence (DCI) to modify the Agency's current guidelines restricting the recruitment of agents with spotty human fights records, when applied to terrorist informants, with the assertion that "one cannot prowl the back streets of states where terrorist incidents occur and recruit only nice people." (3)

Have the CIA and other intelligence community entities been unwisely constrained in their abilities to pursue the terrorist target by outmoded policies dating from the Cold War? This Article will examine four potential modifications to such policies. One possible change is to loosen restraints on the CIA in the recruitment of so-called "dirty assets". A second is to grant domestic law enforcement powers to the CIA to better pursue the terrorist target. Third, the government could repeal the prohibition in Executive Order 12,333 of assassination in peacetime. Finally, impediments could be removed that currently prevent the use of agents in special categories such as journalists, clerics, and academics, if the need is great and cooperation is voluntary. Each possibility will be addressed in turn.

The theme underlying this analysis will be one of balancing. Our need to gather better intelligence about threats posed to the United States and the international community by transnational terrorist groups must be weighed against the constraints imposed by current United States law and practice, the U.S. Constitution, and our status as a constitutional democracy.

1. RECRUITMENT OF "DIRTY ASSETS"

   To some degree, the argument over the use of unsavory assets is misleading. By definition, spies are liars, law-breakers, and traitors. They may not be violating U.S. law in supplying CIA spymasters with intelligence information about their own country's defenses or political decision-making, but they are surely violating the laws of the country that they are betraying. John Le Carre wrote with much accuracy when he crafted Alec Leamas' reply to his girlfriend's complaint about using a villain as an agent of East German intelligence: "What do you think spies are: priests, saints and martyrs? They're a squalid procession of vain fools, traitors too, yes; pansies, sadists and drunkards, people who play cowboys and Indians to brighten their rotten lives. Do you think they sit like monks in London, balancing the rights and wrongs?" (4)

   Guidelines were established in 1995 that directed CIA case officers in the field to balance human rights and other criminal violations committed by their agents against the positive intelligence supplied or likely to be supplied by these agents. The unintended intersection of several different global and domestic developments after the 1991 collapse of the Soviet Union has prompted confusion over these guidelines and their implementation.

   At the end of the Cold War, the then-Deputy Director of Operations (DDO) at the CIA, Richard Stolz, observed that the Directorate probably had more reporting agents on its payroll than it needed to deal with the new post-Soviet world. Always sensitive to the accusation from the ranks that the quantity of spy recruitments counted more than the quality, Mr. Stolz sought to reverse this perception by instituting an asset validation system. Under this asset validation system, pursuant to agreed principles relating to the value and number of intelligence reports produced by a given spy, the Directorate of Operations (DO) could trim its roster of non-reporting or marginally-reporting agents. Mr. Stolz retired before he could evaluate the results of his validation system, so the Inspector General (IG) of the CIA made it the subject of one of his periodic inspections of the Directorate of Operations in 1994. The Office of Inspector General (OIG) concluded in its 1994 inspection report that the Directorate had made a substantial start at validating its agent base and eliminating marginal producers in some offices, but there had not been complete buy-in by other offices. Thus, it was recommended that the DCI lend his support to the effort. (5)

   At about the same time, the New York Times reported that an agent on the CIA's payroll in Guatemala had been involved in the murder of an American citizen inn-keeper and the husband of an American citizen. (6) Even though subsequent investigations by the CIA OIG and the President's Intelligence Oversight Board both concluded that neither CIA employees nor Guatemalan Colonel Julio Alpirez had been involved in the murders of the two Americans, the reports found that CIA headquarters and the U.S. Congress had been inadequately informed about human rights violations by agents in Guatemala. The CIA had on its payroll several agents whose human rights records were notoriously poor, and they were not producing much positive intelligence information on drug trafficking or other post-Cold War targets to justify their salary or retention. (7) Out of these reports, and the disciplinary measures taken by DCI John Deutch pursuant to them, came the infamous 1995 guidelines concerning the recruitment of foreign intelligence assets with egregious human rights records. The CIA Office of General Counsel drafted a regulation requiring headquarters' involvement in the recruitment or retention of spies with unsatisfactory human rights records or a record of substantial criminal violations. (8) Although originally intended as a "sanity check" for field agents to enable them to advocate the retention of a spy with dirty hands who nonetheless had ample potential to aid U.S. intelligence collection, the regulation became an invitation to do nothing in an allegedly risk-averse CIA culture. Because spy runners had more on their plates overseas than they could possibly accomplish, it has apparently become easier not to seek a waiver (which in some instances had to go to the DCI for approval) and let the relationship with the malefactor expire.

   In any event, that is history. Congress urged the CIA to alter the "dirty hands" guidelines to encourage risk-taking in the recruitment of assets knowledgeable about terrorism after September 11. (9) The DCI has responded by eliminating the requirement of a DCI waiver in the recruitment or retention of dirty assets, leaving that to a dialogue between the field agent and the DDO. Importantly, however, the Agency has retained the requirement of an audit trail in these cases in recognition of a need for some explanation to headquarters why a dirty asset ought to be on the payroll. Left untouched is [section] 1.7(a) of E.O. 12,333 requiring senior officials of the intelligence community to "[r]eport to the Attorney General possible violations of federal criminal laws by employees and of specified criminal laws by any other person as provided in procedures agreed upon by the Attorney General and the head of the department or agency concerned, in a manner...