As the outset, let me say that I am an attorney. I am also one of "those people" who agrees with Glenn Greenwald. This means:
* I do not believe that it is Constitutional or legal for the US Government to maintain "black prisons" inside or outside the USA for the indefinite detention of non-uniformed prisoners captured off the battlefield.
* I do not believe that it is Constitutional or legal for the US government to surreptitiously record telephone conversations without a warrant or probable cause, except under the exingencies described by FISA.
* I am very disappointed with the Obama administration's latest positions with regard to these issues.
I tell you all of this because I want to propose a hypothetical from the intelligence world and see how the Kossacks address the question. Follow me after the jump.
The hypothetical is as follows (and please pardon my attempts to give the various peoiple described below somewhat authentic-sounding names):
You are an assistant legal affairs advisor to a U.S. intelligence agency. You are advising domestic operations officer and an in-country case officer regarding the legality and/or constitutionality of their actions and the actions of various agents taking place outside the USA.
The domestic operations officer tells you that an agency action is taking place in three countries -- X (a country friendly to the United States), Y (a country which is more neutral to the United States dominated by Country Z) and Z (an autocratic country unfriendly to the United States from which several terrorist groups operate). These three countries are all geographically proximate.
From domestic sources (ie, sources within the United States, relayed by the FBI), there is reliable intelligence that a domestic group has offered to sell a large amount of nitrate-based explosives to a member of a terrorist group (known as "The Hand of God"), who plan to park these explosives at a large shopping mall and explode the bomb as an act of terror. The supposed leader of the Hand of God is Abdul Al-Zira, who is currently at large and believed to be operating in Country Y or Country Z.
Abdul Al-Zira does not deliver his orders directly to his minions. Instead, his orders are passed through trusted lieutenants (who help him plan his actions). The truck bomb plan is under the control of one of these liutenants, Baruk Bal-Nasir, who was actually born in Pakistan.
Another individual-- Cari Al-alhazred, a rival liuetenant of Baruk Bal-Nasir -- told a person he knew to be in the CIA in country X that the Hand of God had made contact with this domestic seller of explosives. Cari said that he offered the information in exchange for information on the whereabouts of his brother, who was captured by Country X. Cari says he does not know the target or the exact location of Abdul.
The agent who took this information cannot ascertain Cari's true motives. He could be willfully spreading disinformation; he could be duped into spreading false information; he could be offering the information to cause the death of a rival; he could be offering fake information in an effort to get information about his brother; he could be offering real information about his brother.
Abdul keeps his headquarters in the desert of country Y, in an area controlled by local tribesmen. There is no way to follow Baruk to the meeting -- he quite literally takes a bus to a farming community and then hitchhikes and/or walks up into the hills for a good two or three days. He then comes back by the same way, takes a bus to downtown in a city controlled by Y, and from there, he delivers his orders by an unknown method to other members of the Hand of God.
CIA agents trail Baruk to the bus and to the drop-off point, but, once he leaves the village where he has been dropped off, they cannot follow him. Efforts to place a tracking device upon him fail (he bathes in the village and changes clothes, taking nothing from the city with him to the desert). Right on time he comes back, takes the bus back into the city, and then gets off the bus. He is followed every step of the way from the moment he gets back into the village until the moment he leaves the bus; in fact, an agent is on the bus with him.
When he returns to the city in Y, he gets off the bus and goes up to a cab driver named Daouid al-Sadr. He is observed saying something to Daouid, who shakes his head. He then goes up to another cab. At this point, agents of Country Z (which dominates Country Y) appear and identify themselves. They attempt to stop Baruk from leaving; he pulls a pistol and resists, trying to flee. They shoot him in the street. Baruk dies.
One of our agents on the scene jumped into Dauoid's cab and asked to be taken "away from this craziness." Dauoid drove the cab away, looking frightened, and took the agent on a ride to a distant hotel approximately one hour away. The agent will arrive at that hotel in approximately 15 minutes.
Country Z's news has issued a statement that Country Z's agent attmepted to arrest Baruk on charges that he was involved in the assassination of an official from Country Z. Other information suggests that Baruk may have been buying weapons from the deceased person; perhaps there was a business deal that went wrong; perhaps Baruk was innocent of the charges; perhaps Baruk was killed because Country Z did not want him involved in terroism against the USA.
The only person who Baruk spoke with, so far as can be ascertained, is Daouid the cab driver. Dauoid has not spoken with any other person (he has not had time). Baruk is dead; he cannot provide any useful information. Baruk probably did not communicate with anyone else on the walk back to the village where he picked up the bus for his return trip -- after all, if there was another way for him to receive his orders, he wouldn't have needed to hike up into the hinterlands.
The bombing plot may have died with Baruk...or the orders may have been transmitted to Dauoid, who could be the conduit.
The Domestic Operations officer wants to know the legality and/or constitutionality of the following:
- Can the CIA kidnap Dauoid and interrogate him consistent with US law?
- Can he be held at an undisclosed location consistent with US law?
- Can he be held indefinately?
- Can he be killed at the end of the interrogation in order to prevent the identification of agents?
What say you all? I've tried to give what appears to me to be a relatively realistic scenario from the world of intelligence operations (of which I admit I have no formal background). This is not a "ticking time bomb" scenario -- we have no way of knowing whether there is a real threat, or whether it is a ruse. We have no way of truly knowing whether Dauoid is an innocent, a pawn, a cut-out, an agent, or even a victim of bad luck.