We have been watching the running battle between the CIA and the Senate Intelligence Committee over the investigation of torture at Guantanamo and elsewhere. Now there is evidence that the FBI and the CIA have attempted to interfere with the military court proceedings being conducted at Guantanamo. It seems plausible that their reasons for doing so may have more to do with protecting themselves from possible prosecution that protecting Americans from terrorism.
Two weeks ago, a pair of F.B.I. agents appeared unannounced at the door of a member of the defense team for one of the men accused of plotting the 9/11 terrorist attacks. As a contractor working with the defense team at Guantánamo Bay, Cuba, the man was bound by the same confidentiality rules as a lawyer. But the agents wanted to talk.There was an earlier incident that revealed interference by the CIA.
They asked questions, lawyers say, about the legal teams for Ramzi bin al-Shibh, Khalid Shaikh Mohammed and other accused terrorists who will eventually stand trial before a military tribunal at Guantánamo. Before they left, the agents asked the contractor to sign an agreement promising not to tell anyone about the conversation.
With that signature, Mr. bin al-Shibh’s lawyers say, the government turned a member of their team into an F.B.I. informant.
The F.B.I.’s inquiry became the focus of the pretrial hearings at Guantánamo this week, after the contractor disclosed it to the defense team. It was a reminder that, no matter how much the proceedings at the island military prison resemble a familiar American trial, the invisible hand of the United States government is at work there in ways unlike anything seen in typical courtrooms.
Last year, as a lawyer for Mr. Mohammed was speaking during another hearing, a red light began flashing. Then the videofeed from the courtroom abruptly cut out. The emergency censorship system had been activated. But why? And by whom? The defense lawyer had said nothing classified. And the court officer responsible for protecting state secrets had not triggered the system. Days later, the military judge, Col. James L. Pohl, announced that he had been told that an “original classification authority” — meaning the C.I.A. — was secretly monitoring the proceedings. Unknown to everyone else, the agency had its own button, which the judge swiftly and angrily disconnected.The FBI and the CIA have long been the prime movers of the security state. As the turmoil of the 1960s and then the Watergate era unfolded, the American public became convinced that the activities of both of these agencies had passed the bounds of anything that could be considered as reasonable and necessary for the protection of the public interest. The Church Commission conducted an investigation which resulted in legislation imposing some restrictions. They weren't very forceful restrictions and they could be got round without great effort. However, they were an insult to the spirit of Machiavellian machismo. The security establishment remained on the lookout for an opportunity to cast off its fetters. It fell into their lap with the events of 9/11. The Patriot Act which was hastily pushed through contained unnoticed provisions providing broad new loopholes.
The Bush-Cheney war machine took full advantage of the national mood of anxiety to expand the reach of the security state beyond anything that had ever been practiced in the US before. The prison at Guantanamo was one of their cleverest creations. By placing it outside of US territory they hoped to make the activities conducted there immune from the supervision of US courts and any limits imposed by the US constitution. They developed legal policy statements justifying the use of torture. SCOTUS began to impose some control over the proceedings.
When President Obama took office one of his first undertakings was an attempt to find some sort of "settlement" of the security overreach by the previous administration. He rescinded authorization for some of the practices and announced plans to close Guantanamo. In an effort to balance these actions he declared a moratorium on prosecution of members of the CIA for actions taken that were consistent with government policy at the time. However, Obama's plan to turn the page has not worked out.
There was a bipartisan drive in congress to block the closure of Guantanamo. Now 5 1/2 years into the administration there is a continuing saga of the security state popping out from under the rug. The revelation about the NSA reveal that that operation has continued to expand its reach. Now we see efforts by the CIA and FBI to interfere in and block investigations and prosecutions.
In theory these are agencies of the executive branch and thus accountable to the POTUS. There are historical glimpses from previous administrations of the tendency for them to operate on their own initiative. The career of J. Edgar Hoover is the most glaring example. I honestly don't know what the situation is for Obama. The truth will have to be sorted out by future historians who have access to information that is not presently available to the public. However, there are immediate political problems with all of this and they are not going to go away.