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The Center for International Policy [1] sponsored a seminar this morning on the theme The National Security State: Part II: Intelligence Gathering And Its Challenges for Human Rights. Melvin Goodman [2], the Director of the National Security Program at the Center moderated the discussions.
The program brought together:
Admiral Stansfield Turner, former Director of the CIA [3]
Mike Posner, the President of Human Rights First [4]
David Cole, Professor, Georgetown Law Center, Legal Affairs correspondent of the Nation [5]
David Wise, author, "The Invisible Government," and many other books on intelligence. [6]
by Chris White
cross-posted from E Pluribus Media
more below...
This distinguished panel did not consider itself bound by the formal remit of the program, and instead focused for three hours on the question of the Supreme Court's recent decision in the Hamdan case, and what that decision will mean for the executive and legislative branches of government as well as the intelligence community. Out of this discussion came a series of bench-mark indicators, or let's say, stuff to keep an eye on during the weeks and months ahead.
Integrity in public service
These include tests for Congress, such as the just beginning efforts to draft legislation to deal with the consequences of the Hamdan decision, and how the body handles further revelations about Bush's illegal programs, including the ones not known to the public yet, for the executive branch in the way it is going to deal with intelligence questions, for congress and the public, as myths which have made possible the shifts that have occurred under Bush, are exploded. As the panel progressed, it became clear, that each of the speakers in their own way, viewed such questions as an aspect of a much broader matter. For each of them, the question of integrity in public service, or in life as a whole, is the key to everything. It is integrity as a moral characteristic that permits the individual to develop the strength to resist the blandishments and manipulations, threats and fears which have been brought to bear to secure submission to the arbitrary diktats of another. "Are you sure that's what the intelligence says? Are you really sure?"
Such a view of integrity proceeds from an vigorous commitment to the revival of the moral quality of public service based on encouraging public officials to stand up for what they believe. This was kind of the agenda which organizes the agenda, and emerged, from the panelists, as the means by which the country can begin to restore both its relations with other nations, and its image, in an increasingly hostile world.
[Note: If you all don't mind me editorializing, it is really refreshing to find discussion taking place in this way, because it strengthens it will spread, and because it will spread, it will continue to strengthen.]
The quality needed was indicated in two anecdotes told by David Wise who has been writing about the intelligence community for 40 years and more, from a time it was pointed out, when there was almost nothing known about the CIA. First he told of a statement made by George Tenet on August 11th 2003. The background was this. In the first week of July, David Kay, weapons inspector, who had been sent to Iraq to find the WMD, realized that there was nothing there. He sent an e-mail back to the Agency. "There's nothing here." He promptly received a phone call from Deputy Director McLaughlin (spelling), "we must be careful how we handle this" was what he was told. Although Kay's report was finished earlier he didn't get to testify before Congress on this until January of the next year. What Tenet meanwhile said in August was "we stand by the judgment of the National Intelligence Estimate as well as our analyses."
Wise's other emblematic incident was the case of the notorious aluminum tubes. According to him, the CIA had an analyst, Joe T. who was convinced the tubs were for centrifuges for enriching uranium. The Department of Energy, where responsibility for U.S. nuclear weapons programs is localized, said "No way" They though the tubes were to be used to make a rocket launcher like the Italian Medusa system. He cited another statement from Tenet:
...we need to point out that DOE is not the only agency that has experts on this issue. The CIA has its own experts.
Meanwhile, over at DOE there was Houston G. Wood III founder of the Oakridge Centrifuge Physics Dept.
I don't know of any centrifuge experts who would think it easy to make centrifuges of such tubes.
There is such a thing after all as competence in whatever chosen field, and competence and qualifications need to be defended against ignorance no matter how highly ranked Integrity and competence go together in that sense against political pressure and the fear of bucking group think and established opinion. One of the starting points of intelligent life in almost every sphere of human activity is the separation of what one knows from what one knows one does not know.
Law
David Cole set the scene with his discussion of the Hamdan case. He contrasted two statements: one from an interrogator at Guantanamo, as reported, he said, in the press, "There is no law here," the interrogator said to a prisoner, "we are the law." The other from the Supreme Court's decision in the Hamdan case.
the executive branch is bound by the Rule of Law that governs in this jurisdiction.
He thought this ought not to be a radical notion. But because the Bush administration has been so radical it is.
He summarized the administration's attitude on Presidential powers as the same as that expressed by the underling at Guantanamo, "unilateral and uncheckable", that the President's powers to select the "means and methods of engaging the enemy" are "absolute and unrestricted". The other two branches of government have nothing to say. He pointed to the Justice Department memos of August 2002, where it was argued that in selecting "means and methods" the President cannot be bound. [7].
His view of the 187 page decision is that all 9 of the Justices reject this view of presidential power, even though on predicated issues there are different views. He bases this on the six Justices who ruled that Habeas corpus does apply, plus the 3 dissenters who argued that while Congress could extend judicial review, in this case, it has not. So the majority and the dissenters are both defending their own and Congressional prerogatives against the Bush view of the Presidency.
Cole argued that the decision has set up an interesting conundrum for Bush and his supporters in the Congress. The Court wants tribunals which are set up in a way consistent with courts martial except where impractical. But common article 3 of the Geneva conventions applies [8]. If Congress acts as rubber-stamp for Bush in its upcoming redraft, the result would function in the context of U.S. domestic law, but it would violate common article 3, and be a war crime. The article governs even conflicts between nation and non-nation. The guarantees involved were deemed necessary by civilized nations, said Cole.
Unless the new rules conform we will be proceeding in violation of Article 3.
For Cole this means that we need to revive the notion that we care about international law. He contrasted this view with that of the National Defense Strategy document published in March of 2005, where this was written
the strength of the nation state will continue to be challenged by the weak using international for a, judicial processes and terrorism[9].
What a travesty that the administration sees international law as an ally of terrorism, not as a weapon on behalf of the victory of civilization over terrorism.
Dissent and dialogue
Integrity was the compass for Stansfield Turner. He told of a memo he wrote for Jimmy Carter,
Your director of intelligence believes the following... no one else agrees with him.
He said he encouraged dissenting views during his tenure. Others present agreed. He and they point to the benefits of fostering dialogue and dissent against the formaldehyde of bureaucratic top down control and other organizational methods and procedures which aim at establishing uniformity and by so doing undermine competence.
Turner has two priorities for the intelligence community. First in importance for him, is Russia, the one power which has an arsenal of nuclear weapons which can destroy the U.S.
We need to know what's going on. We need to know what they are planning and what they are thinking. He described this as a defensive strategy, as developing intelligence to encourage arms reduction. The 1,000's of war-heads we and they have are, in his view, excessive. They increase the risk of advertant or inadvertent use. But we can't reduce without knowing what the Russians are doing.
Nuclear attack from Russia, he stressed, is the greatest threat we face. It should be our number 1 priority.
Terrorism is number 2 on the list. Terrorism cannot be handled without good intelligence. Good intelligence comes from collaboration with others, who know cultures and situations and histories that we do not. We cannot do it alone he emphasized. We need all the help we can get. We need to build an international network. The question is
how much will we trust others with our secrets, and how can we persuade sharers given our own problem with leaks.
He argued that it is a question of responsibility against over-caution, and that achieving the "right balance" is the job of the Director of Intelligence.
Mike Posner identified 5 areas where he thought we need to make progress from where we are now. They were, first, ending secret detention, world-wide. Second, defining one set of rules for every interrogator and everyone in the leadership of any detention center, and those rules should include provision of a clean room, time, and a relaxed atmosphere in which the interrogator can develop trust. This would be to move away from the line on the floor, chalk on the boots approach to rules which a questioner later pointed out was linked to General Hayden newly confirmed at CIA. I want to know where the line is, so I can go right up to it, get chalk on my boots, and not go over. For Posner that is so wrong, how do you go right up to torture or cruel treatment, and not do torture or cruel treatment? Third would be the ending of extraordinary rendition. Fourth the revisiting of the military commissions or courts martial. And fifth ending the view pushed around by TV shows like that involving Jack Power where the good guys torture the bad guys and it is ok. It isn't ok.
He introduced this, his set of requirements, by discussing some myths and false choices which are used to confuse people, such as the idea that we have to choose between security and liberty. It is a false choice, and undermines both security and liberty. As this one demonstrates the common feature really is that fear encourages and permits one to do things which will not work, but will make everything worse. Where the integrity of leadership is corroded by fear incompetence is the result, breeding more fear, and more incompetence. Thus the argument for torture using the "ticking time bomb" problem. It is the only way to get the information. Well, guess what, it isn't, and it doesn't work. Or that treaty obligations apply domestically, and do not constitute affirmative obligations world-wide. Or that Al-Qaeda isn't covered by the Geneva protocols, because Al-Qaeda didn't sign them. Or that there is some kind of dichotomy between law and war, that there are law-free zones out there in a legal equivalent of outer space. What Cheney once called "the new normal" [10]
For Posner "the new normal" is the 15,000 still held in U.S custody, not just the night shift at Abu Ghraib, or the 400 hundred or so at Guantanamo, but as Human Rights First's report on Command Responsibility showed, the 98 cases where people in US custody died, the 34 cases which were classified as criminal homicide by the Pentagon's own investigation, and the 9 cases were individuals were tortured to death. The massive votes in the Senate and the House on behalf of the McCain amendment, and against Cheney and Bush, show that the law-free zones can be brought back under the control of civilization.
Summary
I'd like to wrap up by summarizing the main points covered in the kind of what to look for going forward category.
Legal Cases. There is another set of cases held at the Appeals court level which deal with the legality of the combatant status question, and the review tribunals, not the military tribunals, but the tribunals which were Pentagon designed to review Guantanamo prisoners' status. The domestic cases are expected to move more slowly. On the NSA warrantless surveillance cases the administration is expected to use its state secrets tactic to argue that courts can't decide because the matters are state secrets which can't be discussed. This type of approach will move things in the direction of constitutional crisis over presidential powers it was thought.
Congress. The thinking was that Congress will have to take up these issues, the military tribunals, which may result in re-authorization with fairer procedures, by way of affirming congress's law-making powers against presidential over-ride. The matter of disclosure of information highlighted by Hoekstra's recent letter referencing the unknown secret programs, and Roberts in the Senate blowing off Hoekstra's whistle blower with the statement "we are not cleared to know what you want to tell us" Indeed. So there is an issue of disclosure and access to information which Congress will have to deal with. Congress is also going to have to confront the question of what is the war on terror, and how long should it last, or how do you know when it has ended, or what would constitute victory?
Intelligence. On the Intelligence side, lot of concern about Negroponte as DNI flying under the radar of public scrutiny, building a large organization, more than 1,000, recruiting out of others (Mary Margaret Graham former CIA station chief in NYC and Counter-Intelligence specialist), centralizing under himself. Some say "too soon to tell". Others say "he has his own integrity issues" Too close to the WH and Executive Branch. State Dept INR is losing independence to him, with a weak outside appointment coming in, someone who signed the petition in support of Bolton as UN Ambassador. This appointment, by tradition should go to the Senate Foreign Relations Committee, because it involves State and foreign Affairs, but Negroponte has shifted it to Roberts at senate intelligence. Others say, "Do we really need a DNI? He is not improving co-ordination. What is going on?
There is no such discussion about Hayden. CIA Director should be a strategic intelligence type. Hayden is a technical man, furthermore a technical man who violated the law by agreeing to do the warrantless surveillance. Therefore not the required integrity, no overseas experience, thinks on a lower career platform than expected of the director.
Much concern expressed about all the young people who are being recruited into the intelligence community in droves because there are jobs for them, and what on earth is going to happen to them.
Oh, and watch the White House on press censorship. This is an issue emerging from the times stuff. Tony Snow is pointing things that way, worries about his remarks to the effect that there's a precedent here, it is war-time and the press has to go along. Of course, this crowd thinks the press has buckled. After all. the Times held the NSA story for a year. There was no dispute with the proposition that it is the job of the government to keep secrets. But equally Emerson's rule about cats applies. Its kind of hard to put them back in the bag once they get out.
For the first time that I've heard people began to talk in concrete terms about the effect of the last few years on our position in the world. How Moubarak of Eygpt is now free to say that America finally understands what we have been saying. They are doing it our way. How Mugabe in Zimbabwe began to talk about his political opponents as "enemy combatants" and locked them up. How our imitators in Sudan's Darfur province call their prison, Abu Ghraib.
Such examples posed again the question of the kind of principles of leadership that need to be fought for anew, and what the country has to do to gain allies for all that needs doing. There was a firm consensus, I thought, that the freedom to dissent provides one of the best indices of the freedom of a country, and its ability to provide leadership of the kind required.
Footnotes
[1] Center For International Policy
1717 Massachusetts Ave, NW, Suite 801, Washington DC 20036
[2] Background in strategic intelligence since the 1970's.
[3] Admiral Turner's distinguished career is profiled at wikipedia
[4]Mike Posner has been working for Human rights for over 30 years
[5] A brief profile of David Cole's career, with references to some of his publications can be found at answers.com
[6] David Wise is one of the leading experts, and authors on the intelligence community
[7] This discussion refers to the revived nomination hearings for the appointment of WJ Haynes II to the 4th circuit Court of Appeals. Haynes as Pentagon General counsel was one of the drafters of this memo. Also see Newsweek for 2004 views of the significance of these memos when first made public.
[8] The text of the Geneva Conventions, and common article 3.
[9] This document was released to the press by Bush.
[10] This analysis situates the "new normal" in light of both its origins and broader social signifcance