Discussion 5
Understanding the Intelligence Component
A. Bureaucratic and Legal Framework
American intelligence gathering and counterintelligence pre-date the Republic.
Nathan Hale’s service and sacrifice as a revolutionary war spy is celebrated in statue at
the Central Intelligence Agency, outside the Department of Justice, and at Yale
University, from which he graduated in the class of 1773. Major Andre’s trial as a British
spy during the same war is depicted in lithograph in the offices of judge advocates
throughout the U.S. Armed Forces with the regularity of a photograph of the commander
in chief. But Hale and Andre were one-mission spies. As noted in Chapter 5, Benjamin
Franklin, the colonial envoy to France, although less noted, was far more successful as an
intelligence agent. Employing tradecraft such as secret writing and dead drops, Franklin
organized an espionage ring, planted disinformation in the Paris press, and organized
clandestine arms shipments to the colonies.
The president’s intelligence powers are derived from his enumerated national
security authorities described in Chapter 4. This authority is recognized in longstanding
executive practice (Frankfurter’s practice and gloss), as well as in those few Supreme
Court decisions that address intelligence, such as Totten, Doe, Curtiss-Wright, Snepp,
and Nixon, although generally, the intelligence references are oblique as in Nixon and
Curtiss-Wright. This authority has also been recognized in statute at least since the
National Security Act of 1947 recognized the president’s central intelligence role. Until
World War II, the United States did not have a national and professional intelligence
service, structure, or outlook. Intelligence remained the professional domain of the
military services and the informal domain of ad hoc presidential agents and confidants.5
The OSS, and subsequently the CIA, and more broadly a national intelligence framework
emerged after Pearl Harbor, was shaped by World War II, and was subsequently
transformed into a permanent national security tool with the advent of the Cold War. A
corresponding bureaucracy and statutory intelligence framework followed.
Although there are a number of statutes that address intelligence (if one includes
those containing intelligence exceptions, there are numerous statutes), the National
Security Act of 1947, as amended, remains the bedrock intelligence law. Over time there
have been important amendments to the Act. The Intelligence Authorization Act of 1991,
for example, included the first statutory definition of covert action. The Intelligence
Reform and Terrorism Prevention Act of 2004 (Reform Act), among other things,
established a new position of director of national intelligence (DNI), permitting the CIA
director to focus on human intelligence collection.6 Of course, intelligence law is also
found in unclassified (e.g., E.O. 12333) and classified (e.g., the Attorney General
Guidelines, intelligence community directives), and executive and presidential directives.
The National Security Act creates and defines the national intelligence mission of
the United States, recognizing both a strategic (geopolitical) need and a tactical military
need. The Act established the Central Intelligence Agency and, along with the CIA Act of
1949, serves as the Agency’s statutory foundation. In addition, the Act created the
position of director of central intelligence, who until 2004 was designated “the principal
adviser to the president for intelligence matters related to the national security,” and
served as head of the U.S. intelligence community, as well as head of the CIA. However,
in response to September 11, and recommendations by the 9/11 Commission, as well as
intelligence shortcomings identified by the president’s Weapons of Mass Destruction
Commission, the Congress amended the Act in 2004 to create the position of director of
national intelligence. The DNI has three principal statutory responsibilities: (1) to “serve
as head of the intelligence community”; (2) to “act as the principal advisor to the
president, to the National Security Council, and the Homeland Security Council for
intelligence matters related to national security”; and, (3) to “oversee and direct the
implementation of the National Intelligence Program.”
In addition, the DNI is responsible for providing national intelligence to the
president, the heads of departments and agencies, the Chairman of the Joint Chiefs of
Staff and senior military commanders, and the Congress.10 The DNI is also charged with
overseeing the National Intelligence Council, the Non-Proliferation Center, the
Counterintelligence Center, and the CounterTerrorism Center. Each “center” existed in
some form prior to 9/11, but now functions under national (DNI) as opposed to agency
(CIA) auspices. The DNI is also responsible for reporting to the president and the
Congress each year on any legal impediments to his functions or legal requirements.11
Although one might hope that this function would be performed in any event, this
provision is noteworthy. It creates a requirement – a tripwire – for the DNI to appraise
the state of the law each year and its impact on the intelligence function. It also places the
DNI on record as to the results and then places the Congress on the hook for responding
to the DNI’s report. If intelligence officers are not satisfied with their authority to recruit,
then here is a vehicle in which to communicate that concern internally, and if necessary,
externally to the legislative branch. There is no excuse for identifying a legal obstacle
after the fact.
Importantly, the Act confirms the special relationship between the president and
the intelligence function. Thus, among other things, as originally enacted the Act charged
the head of the Central Intelligence Agency to “perform such other functions and duties
related to intelligence affecting national security as the president or the National Security
Council may direct.”13 When originally used in the National Security Act of 1947, this
description was understood to encompass the conduct of covert action. Such “special
activities” were subsequently recognized in the 1974 HughesRyan Amendment to the
Foreign Assistance Act, the 1980 Intelligence Oversight Act, and most expressly, in the
Intelligence Authorization Act of 1991, amending the National Security Act. The
president’s central role is also recognized in the Reform Act, which assigns to the
president responsibility for implementing and overseeing what the Act refers to as an
“information sharing environment” (ISE).14 In plain English, the president is supposed to
ensure that national security information is identified, shared, evaluated, and
disseminated in a timely and effective manner between government agencies and within
government agencies. The president has assigned this function to the DNI, but the
responsibility remains with the president.
Congress responded by passing, among other laws, the Intelligence Oversight Act
and the Foreign Intelligence Surveillance Act (discussed earlier), as well as by
establishing two permanent select committees to authorize intelligence budgets and
oversee intelligence activities. Presidents have taken other enduring actions by executive
order, in part, to forestall legislation that might later bind the president’s hand. Notable in
this category was President Ford’s 1976 order prohibiting “assassination” presently
documented in E.O. 12333. As with the war power, Congress’s authority over the
intelligence function is found in the funding power, the necessary and proper clause, its
general legislative power, as well as the enumerated authorities the Congress possesses
over national defense. But contrast Congress’s portrayal of its constitutional authority
over the military instrument in the War Powers Resolution with its authority over the
intelligence instrument in the National Security Act. In the War Powers Resolution, the
93rd Congress imposed a requirement for prior consultation (“in every possible
instance”) before use of the military instrument. Further, the resolution purports to
exercise Congress’s war power on a contingent basis by limiting certain military
deployments to sixty days or less absent subsequent congressional authorization. In
contrast, with covert action the Congress receives “prior notification,” and consistent
with sources and methods is kept fully and currently informed of ongoing intelligence
activities. Moreover, with covert action, the law acknowledges the possibility that the
Congress may not receive even that.
For sure, each act captures a constitutional moment in time, representing the
majority views of a particular Congress, and not necessarily settled constitutional law.
But the differences are noteworthy as is the fact that both statutes were passed in the
wake of presidential “scandal” where the constitutional perspective of the legislative
branch was ascendant. Indeed, all three branches, as noted earlier, have recognized the
president’s special relationship to the intelligence function. In an area where few outside
the executive branch can assert policy insight based on access to intelligence information,
members of the intelligence committees are better situated to test programs, audit
funding, and validate clandestine executive actions, and where appropriate, inform the
public that they have done so. Whether this role has been performed effectively is, and
has been, a matter of debate, and sometimes distraction. What is certain is that
Congress’s role in intelligence is a permanent one. As discussed in Chapter 3, in a system
of shared powers and separate branches the Congress can provide a source of legitimacy
and constitutional safeguard to intelligence activities that are generally conducted outside
the reach of public knowledge and review. At times, the committee members and staff
may be the only persons outside the NSC process and the relevant intelligence agencies
aware of an activity. Certainly, the witting members of the intelligence committees may
be the only actors in the know without a direct policy stake in the success or funding of
the activity other than the executive branch lawyers involved. Therefore, whether their
views are desired or not, they may be the only source of “outside” perspective and
validation, particularly with respect to whether an activity is worth the risk.
From the beginning, intelligence in both qualitative and quantitative measure
contained a significant, and some would argue, predominant military perspective, even as
the public increasingly identified “intelligence” with the CIA, and then,
disproportionately so with a subordinate fraction of the intelligence mission – covert
action. The National Security Act recognizes the special role of the military in generating
and using both tactical and strategic intelligence. Thus, Congress originally expressed its
sense that either the director or the deputy director of central intelligence be a
commissioned military officer, or have comparable experience, but that both positions
could not be occupied by military officers at the same time. Comparable language was
included in the 2004 Reform Act. Thus, “not more than one of the individuals serving in
the positions of DNI or principal deputy DNI may be a commissioned officer of the
Armed Forces in active status.” Further, the law expresses the sense of the Congress that,
under ordinary circumstances, it is desirable that one of the individuals serving in these
positions be an active duty officer, or “have by training or experience, an appreciation of
military intelligence activities and requirements.”
The Reform Act recognizes the theoretical importance of fusing a military need
for tactical and strategic intelligence with a policy need for political and strategic
intelligence.21 However, the law also incorporates a tense (rather than settled)
compromise between proponents of a single centralized source of control over the
nation’s intelligence capabilities, and advocates of bifurcated military control over
military intelligence. (Neither camp places much emphasis on the role of the president as
the centralized source of control.) For example, the law adopts a bifurcation in
responsibility over the day-to-day intelligence function between the secretary of defense
and the director of national intelligence. Thus, the Act designates the DNI as the head of
the intelligence community responsible for “establishing the requirements and priorities
to govern national intelligence.” At the same time it assigns the secretary of defense line
and budget authority over a majority of intelligence agencies including the National
Security Agency. This authority is generally exercised through the undersecretary of
defense for intelligence. In fact, eight of the sixteen intelligence community components
are subject to the direction of the secretary of defense, not the DNI. By another measure
the secretary of defense, and not the DNI, controls 80–85 percent of the intelligence
budget and most of its personnel.
But the Reform Act, as the law always has, divides cabinet-level control over the
intelligence instrument. That may not in itself prove dysfunctional. However, there is
danger that in creating the position of DNI the Congress has created the impression, or
worse yet convinced itself, that the intelligence puzzle is solved through bureaucratic
shuffling and the position of DNI. We should have more concern if the president (and
therefore also the national security advisor) believes this as well, and fails to realize the
president’s central role.
In addition to knowing the law, government lawyers must also understand the
bureaucracy. This allows lawyers to guide policymakers more effectively. It also allows
lawyers to garner the information necessary to apply fact to law and ask the right
questions in doing so more effectively. The intelligence community (IC) consists of more
than the headline agencies within the Department of Defense and the CIA. To start,
“community” is a misnomer. Community is a concept, not necessarily a condition.
Membership in the community improves, but does not guarantee, informational
connectivity, the opportunity for budget input, and potentially a place at the decision-
making table.
Executive Order 12333, as amended, designates sixteen agencies or components
of agencies as members of the “intelligence community.” Subsequent to 9/11, the Coast
Guard joined the IC in recognition of its homeland defense mission and the significance
of maritime intelligence. Intelligence community components within larger agencies are
often the point of entry for intelligence issues, where classification and cultural barriers
are more easily addressed. Of course, the number of intelligence elements is less
important than an understanding of their existence and their function. (The number of
community members will likely change again as the structure of the Homeland Security
Department is modified and amended.) Understanding this breadth and the range of
bureaucratic cultures within the community, one will also understand the leadership and
bureaucratic challenge for the DNI and the president. Whereas the military operates
under a unified chain of command, with a clear start and finish that is known to lance
corporals as well as lawyers, in the intelligence context there is sometimes only a top.
The chain of command starts with the president and moves either to the secretary of
defense, the DNI, or perhaps the attorney general. But from there, the lines of authority
(and responsibility) disperse into a myriad of programs and compartments known only to
those possessing access and a need to know.
B. The Five Intelligence Functions
However the IC is defined, if “intelligence” is information relevant to national
security decision-making, then intelligence is generated and analyzed by virtually every
component of national government as well as many components of state and local
government as well as the private sector.25 On the national level, the authority to collect
is found in delegated presidential authority reflected in executive directives as well as in
individual agency enabling legislation. Critical to this task is an understanding as to
which information is indeed important to the national security. With homeland security,
for example, the agricultural meat inspector or the private doctor may provide the first
indication of a terrorist attack, not a radar station located in Thule, Greenland. The
existence of certain intelligence sources and methods is generally known and
popularized. The basic methods of collection are described on the Office of the Director
of National Intelligence (ODNI) website. Among other things, agencies collect
information through clandestine as well as open means and from technical as well as
human sources (human intelligence or “humint”). In contrast to the general methods,
specific capabilities and the targets of collection are preserved secrets.
Of course, limitations and permits contained within an executive order, which are
not otherwise implementing law, may be amended and interpreted by the president,
including in secret manner. Nonetheless, the provisions of 12333 create important
baseline expectations. Moreover, the text offers the lawyer insight that the critical legal
instruments in this area include the Attorney General Guidelines applicable in the context
presented. Within the United States and overseas distinct rules apply to intelligence
collection that directly or incidentally target “U.S. persons.” For example, as discussed in
Chapter 5, electronic surveillance that captures the conversations of U.S. persons who are
not themselves the target of collection is subject to “minimization” procedures. That is,
information can only be retained, analyzed, and disseminated in delineated instances,
such as when it relates to the purpose and target of lawful surveillance, where consent is
given, where the surveillance evidences a crime, or where the U.S. person’s name is
necessary to understand the information collected.29 Executive Order 12333 contains
further limitations. As a threshold, “[a]gencies within the Intelligence Community are
authorized to collect, retain or disseminate information concerning United States persons
only in accordance with procedures established by the head of the agency concerned and
approved by the Attorney General.” (Para. 2.3). Internal directives, such as U.S. Signals
Intelligence Directives, provide further detail regarding these limitations
When intelligence falls short, debate often follows as to whether the intelligence
community was relying on the right mix of technical and human means of collection.
Conventional wisdom assumes the United States relies too heavily on technical rather
than human methods of collection. This may be true in context. Some targets lend
themselves to technical collection, for example, the monitoring of a weapons test,
although the human source may provide the critical indication that a test is imminent. It
may also be true where technical means provide the only viable methods of gathering
intelligence. In other words, the United States may rely on technical means not as a
matter of choice, but for want of a horse.
The qualitative value of intelligence gathered against the jihadist target depends
on finding the optimum degree of risk in three areas. First, intelligence decisionmakers
will have to find the optimum balance between counterintelligence risk and collection
need. Effective penetration of targets requires the employment or utilization of persons
with necessary ethnic and cultural background. These persons may not be U.S. citizens,
and if they are, the ordinary degree of background inquiry may not be available as a
result of the applicant’s place of birth or prior residences. If we assume too little risk of
counterintelligence penetration, we may forgo important opportunity to recruit and train
the sort of case officers or agents who can either penetrate the target themselves or
achieve sufficient access to an agent base that is able to do so. If we assume too much
counterintelligence risk, we may find our agents and officers dead and singular avenues
of intelligence approach compromised.
Second, the humint mission requires modulation of the risk the United States is
prepared to assume in introducing U.S. personnel into high-risk environments, with the
encompassing risk they will be captured or killed. Intelligence collection on the
battlefield, including the global terrorist battlefield, is exceptionally dangerous where the
opponent does not “play” by the “rules of the road” that state intelligence services
generally observed during the Cold War. In this conflict, exposed intelligence personnel
are not declared persona non grata and expelled. But if one works back from the threat of
a nuclear weapon detonated in a major U.S. city, then national security officials must
continuously consider whether we have applied the necessary degree of policy (but not
personal) tolerance for intelligence casualties. These same officials must consider
whether such tolerance should exceed that tolerated during the Cold War, and if so, by
how much. Intelligence policy and law will also have to factor in the risk of moral or
legal compromise. To penetrate criminal networks or solve violent crimes law
enforcement agencies employ confidential informants that law enforcement personnel
know engage in crime themselves. This is an integral part of the criminal investigative
process. An informant’s criminal conduct may provide the basis for his access to the
target, or at the very least serve as “cover.” However, in context, there may be a thin line
between informed tolerance and encouragement, or even government sanction of criminal
conduct. As a result, the FBI and state and local police have guidelines on the handling of
informants to address these moral and legal concerns.
The same issues arise in spades in the intelligence arena. But the moral tension is
more severe in light of the subject matter and the timelines involved. Obviously an
intelligence service cannot penetrate a terrorist network or illicit arms network through
the front door. There is no front door. Moreover, such networks have their own
mechanisms to test the bona fides of their members, assets, and contacts. Further,
intelligence services are usually in the business of collection rather than disruption or
arrest. That means that the moral and legal issues associated with “the friends we keep”
may persist over time. In a democracy, intelligence law and policy must account for these
tensions and provide a meaningful mechanism for effectively, secretly, and rapidly
assessing these risks and doing so on an ongoing basis.
These guidelines were subsequently attacked for chilling the recruitment process,
particularly in the terrorist context where the potential agent pool is characterized by
persons of dubious background who might themselves have engaged in terrorist acts. In
context, one can see that such guidelines might chill. A case officer on the brink of
recruitment, or engaged in a chance encounter, could not close the deal, or might be
hesitant in closing the deal, without checking with headquarters first. He or she might
also be hesitant to string the contact out for fear of operational exposure. The guidelines
might also have been perceived in the field as a vehicle to second-guess the case officer,
rather than a method to buttress risk-taking. In any event, in the wake of 9/11 some case
officers argued that the guidelines had constrained the recruitment of agents, a complaint
apparently not made before 9/11, or if so, in muted fashion. Of course, the fundamental
problem was that the terrorist target was and is a hard target. Where the guidelines may
have deterred the recruitment of borderline colonels with marginal information, they
surely did not bar recruitment of Bin Laden’s aides. Guidelines or not, the desire for more
and better human intelligence was loud and clear and remains so.
The cadre of professional intelligence officers and potential (meaningful) agents
is small, exceptionally small if one considers those officers and assets able to penetrate
the zone of hard target recruitment and collection. For these reasons, leadership of the
intelligence function will entail difficult choices between intelligence necessity and the
three risks identified above. It will also require constant appraisal as to whether the
United States has effectively calibrated the risk of penetration, the risk of casualties, the
risk of values compromise, and the risk of attack. No amount of law or structural
reorganization can provide access to a human intelligence source or spark the intellect of
an analyst. What bureaucratic and legal structure can do is improve the opportunity for
success. In the area of analysis, for example, the law, or internal directives that can more
readily be adjusted, can provide for efficient redundancy so that more than one person
has a crack at the problem in a process that invites debate and records dissent. For humint
collection, the law can incorporate incentives to increase the possibility of success. The
law can authorize rewards, improve personnel practices, increase salaries and benefits to
survivors, and offer incentives for particular skill sets, especially language skills. While
the community has not lacked insight on the need for human intelligence, the function
seems repeatedly to fall short in delivering a redundant capacity in critical language
areas, including Arabic and Farsi. This is an area where the law can be used to set
numeric thresholds and to create personnel incentives to master certain skill sets. Of
course, for some assignments there will be no substitute for native capacity, which is part
of the challenge.
The law can also require clear processes of authorization, and clear parameters for
recruitment tailored to need so that risk takers in the field know that they will be
protected from recrimination in the event of failure or compromise. In other words,
standards for recruitment should not be uniform, any more than the potential value of
each agent recruited is uniform. There is a difference between a Guatemalan colonel and
Bin Laden’s bodyguard. As military personnel operate with standing rules of
engagement, case officers can do the same, without necessity of headquarters approval.
Ultimately, however, intelligence is not dependent on the law. It depends on what
Graham Greene called “the human factor”: a president who asks the right question; a
national security advisor who pushes open every intelligence door (and then pushes some
more); the analyst who finds the entrance to a clandestine arms facility from a pile of
photos of valleys; and, with human intelligence, the source who turns the corner of
betrayal for ego, for ideology, for family, for anger, or for money.
It is also useful to remember that much human intelligence is inductive. Definitive
judgments are hard to draw from a single point of data, rather than deductively from
empirical data or multiple points of reference. So too, facts are easier to fix than intent.
Our most important Politburo spy, Oleg Penkovskiy, was a colonel, with a colonel’s
access and understanding of Politburo intent. However well placed, a staff member will
have only so much access to and knowledge of the intentions of a state’s or terrorist cell’s
leaders, especially when the state or the cell is structured to limit external exposure and
penetration. Intelligence analysts speak in terms of mosaics, but in many intelligence
scenarios these are ancient mosaics, broken, scattered, and buried, with few pieces in
place. Resources are also finite. Just as the United States cannot have military forces on
station in every location, the intelligence agencies cannot treat every country with the
priority of the Soviet Union. Unfortunately, a geographically fluid conflict with terrorists
will find this out in ways a cold war against a geographically fixed opponent did not.
Terrorists, like water, will seek the path of least resistance. That means that collection
requires both an ability to surge to meet the need of the day and a deep base in the
fundamentals, such as Arabic language, South Asian, and African dialects.
Information is of little value if it is not sorted, prioritized, translated, and
disseminated to the actionable level of decision. Some information cries out for action;
other information only does so when fitted into a larger canvas. All of it must be gleaned
from an enormous volume of intake, much of it apparently alarming, and some of which
is never translated or processed. In some cases these tasks can initially be performed by
computer, as persons familiar with Internet search engines or the use of voice recognition
technology will discern. However, intelligence assessment ultimately depends on human
evaluation and judgment – the person who confirms that an image projects a military
rather than a civilian aircraft, the person who links one report with another, or the person
who links fact with a judgment about intent. Analysis is what makes most raw
intelligence “actionable”; that is, information requiring an affirmative response or
affirmative decision not to respond.
Once identified as national security information, intelligence is either
disseminated in raw form or analyzed and disseminated as a product. Formal analysis
intended for interagency distribution at the national level is produced by the National
Intelligence Council (NIC), CIA’s Directorate of Intelligence (DI), the Defense
Intelligence Agency (DIA), and the State Department’s Bureau of Intelligence and
Research (INR), among other entities. (Informal analysis is, of course, provided by
anyone who consumes the information.) In this way, policymakers are exposed to a range
of views, and in theory, institutional or personal bias will be balanced by other analysts in
parallel bureaucracies. However, this is only true if each analyst is exposed to the same
information stream, as opposed to perceiving the same event differently because each is
looking at different information. And it is only true if critical concurrences and dissents
are included as information travels up the chain of command to the actionable level of
decision.
The pinnacle of the analytic process is the National Intelligence Council.
Operating under the bureaucratic direction of the DNI, the NIC is composed of
government and academic analysts. The senior officer in each discipline is designated the
National Intelligence Officer for that subject. The NIC is charged with producing, among
other things, National Intelligence Estimates produced on an ad hoc or as-requested basis,
addressing particularized policy issues or questions. National Intelligence Estimates
(NIE), in theory, represent the best in the collective wisdom and views of the intelligence
community, drawing on all relevant sources of information and viewpoints. In theory, as
well, they have the strength of comprehension, but NIEs can also have the inherent
pitfalls of committee drafting.
In addition, the president receives a daily intelligence update known as the
President’s Daily Brief (PDB). In contrast to other national products, the PDB is more
likely to include the source of the information and relate directly to the president’s
interests, inquiries, and matters pertaining to immediate crisis. Depending on the
particular style of the president, this brief may be delivered in person by the DNI or a
presidential briefer. In this way, the brief becomes iterative in nature as the president asks
questions and influences the shape of the next day’s brief. Both Presidents Bush are
known to have preferred oral briefings. Some presidents, including Presidents Reagan
and Clinton, limited their briefings to a written PDB product, with only occasional oral
input. In such cases, presidential feedback is more likely to occur in the form of
marginalia than direct comment, or through the national security advisor. Whether
written or oral, presidents and their advisors must ensure that cryptic comments and
asides are not received as commands and directives unless they are intended as such.
Regardless of presidential style, the national security advisor serves as the president’s
intelligence alter ego, a conduit to the intelligence community translating and tempering
presidential input into the intelligence process. Significantly, given the divided nature of
intelligence authority between agencies and principals, the national security advisor must
ensure the president receives a comprehensive intelligence picture, which at minimum
should include the facts and views of the DNI, the secretary of defense, the attorney
general and the director of the FBI, and the secretary of homeland security. The
president, operating through the national security advisor, alone has the capacity to fuse
all sources of executive information and do so in a timely or urgent manner.
In the case of a 1996 congressional inquiry involving Iranian arms shipments to
Bosnia, the chairman and ranking members of the ad hoc committee of Congress
conducting the inquiry were orally briefed on the contents of PDB entries pertaining to
Bosnia. In that case, a NSC lawyer representing the president orally described for the
members the substance of each PDB entry on Bosnia and in doing so demonstrated the
absence of information relevant to the members’ inquiry. Of course, this effort at
balancing the constitutional interests of both branches of government depended on the
members’ accepting the integrity of the briefing process. Had material information been
identified, the committee members might have pressed for additional access. The balance
between the executive’s need for an honest and direct deliberative process and the
legislature’s interest in specific fact would have changed, perhaps warranting additional
executive accommodation of the legislative need.
Whether or not the PDB is itself shared with the Congress, presidents and their
staff should consciously consider whether to share the underlying data with the Congress
as a matter of constitutional process and as a product of the National Security Act’s
reporting provisions. For that matter, persons with access to the PDB and its data should
consider whether additional members of the executive branch should be aware of portions
of the brief or facts identified within. In the context of the PDB, it is not the intelligence
information that is privileged (although it could be privileged as a state secret if it came
from a source like a Penkovskiy), but rather the fact and manner of its communication to
the president. As a result, it is often possible to accommodate the legitimate informational
needs of the Congress while preserving the president’s ability to run an intelligence
process that allows senior advisors to give their best judgments to the president without
risk of public recrimination or second-guessing. At the same time, it is important to
realize that such cold data may not come with essential nuance or the background with
which it is received in the executive branch.
However, as a general rule, the government is more inclined toward risk in
gathering information than in disseminating it. Nonetheless, in multilateral, United
Nations, or unilateral contexts, effective dissemination of intelligence information may
make the difference between public support or opposition. Therefore, the government
should put as much effort into the external use of intelligence as into its generation,
including its packaging, dissemination, and declassification, if appropriate. Intelligence
producers and consumers should not only instinctively ask who should see this, in what
form, and how soon, but also how, and in what form, can they then use this information?
Are there ways of generating the same information from a sanitized or open source so
that it can be publicly used? For example, in a homeland security context, the specific
identification of threat information will have far more impact on public behavior than
recantation of color codes to a public exposed to continuous exhortations of alert. In an
international setting, such an observation may invoke images of Adlai Stevenson at the
UN with pictures of Soviet missiles in Cuba. However, that is an easy scenario because it
implicates a source of intelligence already known to the opposition (the Cubans shot
down one of the U-2 planes over Cuba). More frequently, such scenarios will arise where
the intelligence source is unknown to the target and could continue to supply information
unless exposed, thereby raising more difficult issues of authority and balance.
Informal deliveries may not always bear the same careful bureaucratic
manifestations of a written product, particularly if the policy side is testing and probing.
This is evident in the remark by then DCI Tenet that the intelligence regarding Iraq’s
possession of WMD weapons was a “slam dunk,” whereas the underlying National
Intelligence Estimate reached more calculated conclusions regarding the state of the
intelligence. Mr. Tenet’s oral presentation surely included something more than those
two words. However, intelligence officers like lawyers must remain vigilant lest
policymakers hear only what they want to hear, focus on the bottom lines, forum shop,
and skip the nuance when they get to “yes.”
The most important intelligence exchanges may not be on the piece of paper the
DNI delivers, but the question-and-answer session that follows. Such informal exchange
may reveal what is not known and how reliable the information is that we do know, as
well as include additional mosaic pieces drawn from other sources. In this informal
process, the national security advisor plays a critical role in communicating and
translating presidential views to the intelligence process. Thus, whether one is looking
proactively at intelligence design or retroactively at intelligence performance, a complete
picture can only follow from a review of the informal process as well as the formal
intelligence mechanisms. Further, where the public and the Congress may ultimately see
the finished intelligence product or the base conclusion found in a policy talking point,
this informal measure of exchange, on which executive decisions so often depend, is
rarely seen or disclosed.
A third intelligence function is counterintelligence. The classic
counterintelligence function is “spy catching,” the work of Le Carre’s fictional George
Smiley and the very real James Angleton, who ran CIA’s counterintelligence arm at the
height of the Cold War. Counterintelligence also includes the full range of defensive
efforts to prevent technical or human penetration of the U.S. government, force
protection in the field, and the protection of critical infrastructures from hostile
penetration and misuse. It also encompasses the process of vetting employees before,
during, and after employment, as well as the vetting and validation of field assets. Four
points merit note. First, unlike other areas of intelligence law, there is a considerable
amount of unclassified black-letter law relevant to counterintelligence. This includes an
array of personnel regulations pertaining to security clearances and vetting processes,
such as Executive Order 12968, as amended, “Access to Classified Information” (August
2, 1995). There are also classified regulations pertaining to particular agencies and
classified Attorney General Guidelines that may apply in context. In addition, statutory
law includes ample investigative authorities for agency as well as law enforcement
authorities to engage in counterintelligence, including and in particular the FBI’s
authority to obtain administrative records pertaining to financial, travel, and other records
of employees.
Nevertheless, counterintelligence has traditionally played second fiddle, or fifth
fiddle, to other intelligence functions; that is, until a spy like Aldrich Ames or Robert
Hansen comes along, at which point there is an external commission, an internal task
force, and a search for new authority. Clearly, sustained commitment is central to this
field, not just from the career professionals but also from the senior leadership who fund,
lead, and appraise the function. For lawyers, sustained commitment means constant
appraisal of the law and the impact of the law on the counterintelligence function to
ensure the law is effective and fairly used. Finally, there is a tension between
counterintelligence and homeland security. Counterintelligence favors compartments and
stovepipes; homeland security requires informational integration and the qualitative
assessment of sources to know when in fact to “stand to” on alert. Counterintelligence is
for secure phones; homeland security is about cell phones. Thus, as we improve
homeland security we must ensure that counterintelligence adjusts to these changes, not
by creating compartments, but by creating and funding review mechanisms that work in
context. As in so many other areas, ongoing appraisal is critical.
During the Cold War, the United States engaged in a number of “overt-covert
actions,” such as the landings at the Bay of Pigs, the supply of the so-called Contras, and
provision of support to the Afghan mujahadeen. Such “covert” mechanisms allowed
proxies to engage in hot war, while the great power conflict remained “cold.” (However,
most covert activities, then and now, are secret and remain so.) Although covert action
has historically claimed a small part of the overall intelligence budget and intelligence
missions it has played a disproportionately large role in defining public perceptions of
“intelligence,”39 in shaping congressional oversight, and in policy impact. This reflects
the reality that covert activities bear particular policy and legal risks as well as benefits.
Consider, for example, the short- and long-term benefits and costs of U.S. Cold War
actions in support of the coup against the elected Prime Minister of Iran in 1953, or the
covert support for the mujahadeen against Soviet forces in Afghanistan. We live with the
ramifications of both today. Of course, smaller scale actions like the placement of
favorable press in the post-war Italian media had both fewer policy benefits and risks.
In a global conflict against nonstate actors intent on high-intensity attack,
clandestine activities of the sort historically conducted as “covert action” will play an
important role. Indeed, the instrument is well suited to address a nonstate opponent,
acting outside the laws of armed conflict, and operating without necessity of a particular
territory, base, or chain of command. In theory, and in law, and sometimes in practice,
covert action is fast and flexible, allowing prompt response and proactive use against a
mobile opponent within states either unwilling or unable to effect their capture. And, in
theory and in law, and often in practice, covert action is nonattributable and secret. This
allows “assisting states” to otherwise deny complicity in necessary, but locally unpopular
actions. It also removes the “made in America” label, where for example, an audience
might otherwise be receptive to the message, but not the messenger. For these reasons,
the law related to the authorization and review of covert activity is on the front line of
counterterrorism. For these same reasons, the law, process, and practice of covert action
will surely evolve from Cold War understandings and applications. However, it is also
wise to remember that covert action is no more a silver bullet than it was during the Cold
War. It is an important but supplementary tool.
As with much else in national security law, the statutory point of departure for
covert action is the National Security Act of 1947. Although, historically, covert action
was conducted pursuant to the president’s constitutional authority (considered in
Chapters 4 and 5), the Act served as a statutory basis as well until passage of the Hughes-
Ryan Amendment in 1974. As a result, historical practice is particularly relevant to legal
interpretation, albeit hard to ascertain using ordinary methods of research. The legislative
history also is particularly important in fleshing out the meaning of “traditional” activities
exempt from the definition’s reach. Notably, the definition is act-based, not actor-based.
Where the HughesRyan Amendment addressed only activities conducted by the CIA, this
definition potentially applies across the agency board. Thus, the activities of the
Department of Defense and the Federal Bureau of Investigation, for example, might
constitute covert action, provided a contemplated activity fits the positive definition of
covert action and is not otherwise excluded by the negative definition because the activity
is “traditional.”
The Act also recognizes the president’s policy responsibility for covert action.
The president is required to find that “an action is necessary to support identifiable
foreign policy objectives of the United States and is important to the national security of
the United States.”46 Findings must be in writing, “unless immediate action by the
United States is required,” in which case a contemporaneous notation of the president’s
decision shall be made and a written finding produced within forty-eight hours.
Reflecting some of the issues identified in the Iran-Contra context, findings must also
specify the department or agencies authorized to fund or participate “in any significant
way” in an action as well as specify whether the participation of third parties (e.g., third
countries or persons) is contemplated.
Finally, the Act implicitly authorizes the president to withhold notification
altogether by stating that “whenever a finding is not reported [in one of the first two
manners], the president shall fully inform the intelligence committees in a timely fashion
and shall provide a statement of the reasons.”50 There is no public indication of whether
this provision has ever been invoked. However, at the time the legislation was
considered, President Carter’s DCI, Stansfield Turner, described in The Washington Post
certain covert activities undertaken by the CIA during preparation for the 1980 Iran
hostage rescue mission. These activities included the infiltration into Tehran of officers to
arrange for vehicles and safe houses, as well as flights undertaken by CIA officers to the
Desert One transit site to determine its capacity to handle military aircraft. At the time,
President Carter heeded Turner’s advice and withheld notification of these activities from
the Congress (under the Hughes-Ryan Amendment) until after the failed raid and safe
extraction of clandestine U.S. personnel. Amendments to the law, Turner argued, should
contemplate similar contexts warranting post facto notification. This view prevailed. The
statute contemplates such a scenario, indicating, as noted above, that in situations in
which the president does not provide prior notification to the committees or the Gang of
Eight he should notify the committees as soon after initiation of an activity as possible
and indicate the reasons. This provision was the subject of lengthy negotiation at the
time.
The impasse was broken when, in a side letter to the chairmen of the intelligence
committees, President George H.W. Bush undertook as a matter of practice not to
withhold notification to the Congress “beyond a few days” after signing a finding. This
was understood, or interpreted, on the Hill as meaning within forty-eight hours.51 Of
course, “the forty-eight-hour rule” is lore, not law neither is it binding on future
presidents, but it is a good example of informal constitutional process in intelligence
context. When President Bush signed the 1991 Intelligence Authorization Act into law,
he stated his constitutional view that he was not required to report findings in advance or
at all. But an informal constitutional mark was set.
In addition to determining whether presidential approval is required, as a parallel
matter, the definition of covert action triggers specific classified processes of executive
review. As noted above, in the wake of the IranContra scandal, President Reagan issued
and released NSD-286, “Approval and Review of Special Activities.” The document
describes a process with covert action proposals reviewed at the working group level and
then by the Deputies Committee and Principals Committee before submission to the
president. The public record also reflects that in establishing his National Security
Council system, President Clinton directed that “the Attorney General shall be invited to
attend meetings pertaining to his jurisdiction, including covert actions.”56 Where the
president has directed that a particular process of review occur, then the president must
authorize deviation from that process, or otherwise delegate the authority to do so. Law
or not, certainly the president should be informed when expected or important views are
omitted from NSC consideration.
In addition to authorizing covert activities the law imposes certain constraints on
the conduct of those activities. Relevant law is also found in classified presidential and
executive directives. “A finding may not authorize any action that would violate the
Constitution or any statute of the United States.”57 This means that an intelligence
activity must comply with U.S. law unless the law exempts the government or
intelligence actors from its reach or is otherwise inapplicable. This would include
international law to the extent such law is incorporated into U.S. law. As evidenced by
parallel executive statements, similar conclusions were reached at the time of the 1986
U.S. air strikes on Tripoli, which included a tent used at times by Colonel Qaddafi, and in
spring 2003 when the United States targeted buildings where Saddam Hussein was
thought to be located. In addition, “[n]o covert action may be conducted which is
intended to influence United States political processes, public opinion, policies, or
media.”
Heretofore, the National Security Act has successfully served as an agreed
mechanism between branches for addressing covert action. The Act incorporates the
ultimate constitutional positions of both branches (prior reporting and no reporting),
without either side having conceded ultimate authority. The Act leaves the political
branches to work through the constitutional principles and tensions in an informal and
contextual manner. In this way, the statute has played an overlooked, but important
constitutional role by defining expectations and suggesting limits; that is, setting the
constitutional “rules of the road” between the president and the Congress on the meaning
and reporting requirements for covert action.
Concerns for security, speed, and flexibility may also drive activities that
heretofore received internal and external appraisal as covert action into policy and legal
pockets subject to less executive preview and review. The same result may occur as a
product of the good faith application of law to fact. For example, activities historically
considered covert actions may become commonplace in a global conflict with jihadists
and thus legitimately constitute “traditional military, law enforcement, and diplomatic
activities.” These same activities may also properly fall within the construct of “liaison,”
discussed in the next section. In the case of military operations, the effect may be
significant, potentially removing some military activities from meaningful interagency
review (including review by Principals) and eliminating a legal requirement to notify the
Congress. As noted above the definition of covert action is act rather than actor based.
However, uniformed military operations have historically not been considered or treated
as covert activities. Thus, even if the definition is act based, the exception for “traditional
military activities” may effectively remove clandestine military operations from its reach.
This legal paradigm is reinforced by the military’s longstanding cultural aversion to
“covert action.” This antipathy may reflect a desire to avoid the additional internal and
external oversight that accrues to covert action, as well as a desire to avoid the tarnish
that sometimes emerges from the retrospective consideration of certain covert activities.
It may also emulate the traditional differences in military outlook and focus between
Special Forces and regular units.
Policymakers and lawyers must also consider the measure of detail to include in a
finding or MON. There exists a tension between the generic authorizing instrument that
provides flexibility and the too specific instrument that may need amendment with every
change in the field. From the standpoint of legal policy, such documents should be
crafted with sufficient specificity so that it is clear to the president what he is approving
and the policy implications and risks of doing so, including the risks of taking no action.
Where flexibility is required, for example, where the geographic foci of activity may
shift, there should also be sufficient authority to adjust in the field or a viable process to
garner prompt policy consideration; for example, approval by the Principals or Deputies
Committees or an appropriate subset of the committees. Operators will almost always
push for more flexibility as those familiar with headquarters-field relationships will
appreciate. A worldwide threat from jihadists requires worldwide authority to respond
and to do so on short or immediate time fuses.
However, presidents should be careful they do not go too far, and surrender
authority over the actual substance of decision. For you cannot have effective appraisal
and accountability if there is no discernible standard against which to measure result.
Moreover, presidential decision is an essential source of democratic legitimacy for
actions taken in secret with limited or no external input or review. At the same time, field
operatives should press for sufficient detail so that the policy intent is clear and
operatives are protected from second-guessing in the event of failure, and therefore will
take greater risks in accomplishing the intended objectives. Moreover, clear direction also
helps to militate against the conscious and subconscious bias toward risk taking or risk
aversion that individual field officers may possess.
Liaison is a critical tool in any context dependent on human intelligence
collection, such as a global contest against jihadist terrorists. Liaison involves the formal
and informal ties among allied, like-minded, or contextually likeminded intelligence
services. In response to the president’s veto, this element was dropped from the
subsequent definition signed into law as part of the Intelligence Authorization Act of
1991. In signing the Act (and definition) into law, the president stated that he would
interpret the Act’s statutory definition of covert action including the exemption of
traditional diplomatic activities in a manner consistent with the president’s broad
authority over the conduct of foreign affairs. This authority, the president indicated,
extended to diplomatic communications where the president requested or urged third
states to undertake clandestine actions. Such actions, without more, in the president’s
view, would not amount to U.S. covert action, but rather would fall within the president’s
constitutional exercise of the diplomatic instrument.
Liaison can carry all the policy implications, benefits, and risks of a covert
activity. (Our liaison counterparts would not be any good at intelligence if they were not
getting something in return for their assistance other than goodwill.) This is noteworthy
as U.S. liaison relationships may extend beyond a predictable ring of democracies.
Moreover, there is additional policy risk with liaison, because, in general, liaison
activities receive less formal executive review than covert action. Most intelligence
liaison is considered an internal intelligence agency activity. The legal policy question is,
are liaison activities subject to an adequate measure of preview and review to confirm
that (1) we are accomplishing all that we can accomplish but (2) that we do so cognizant
of the policy and legal risks involved and where appropriate that we mitigate, curtail, or
eliminate those risks? The importance of finding the optimum process is illustrated with
reference to rendition, regardless of whether rendition is conducted using law
enforcement or intelligence authorities.
C. Extradition, Rendition, and Extraordinary Rendition
Extradition is the ordinary treaty-based process by which one state surrenders a
fugitive to another state for purposes of prosecution. The United States has more than 100
bilateral extradition treaties and is party to approximately 10 multilateral treaties that
incorporate “extradite or prosecute” formulas for persons accused of certain acts of
violence, without regard to motive.66 (A list of operative agreements can be found a
compendium called Treaties in Force, available on the Internet.) U.S. extradition practice
is subject to a number of legal constraints. As a general matter, for example, the United
States will only extradite on the basis of a treaty, a statutory principle found in 18 U.S.C.
3183 and known in practice as “the Rule of Valentine.”67 The principle of dual
criminality limits extradition to those offenses that are criminal in both the sending and
receiving states. This is determined in older treaties by reference to lists of offenses
(hence reference to these treaties as “list” treaties). Model and modern treaties
incorporate the principle of dual criminality by reference to the conduct as defined by the
elements of offense and not specific terminology or choice of title. This recognizes the
varied manner in which similar offenses are treated in different national codes as well as
the emergence in modern codes of offenses not recognized at the time of treaty
negotiation.
The rule of specialty bars a receiving state from prosecuting an extraditee for an
offense(s) other than the one(s) for which the sending state executed extradition. As with
much of extradition law, the rule is intended to protect a state’s treaty right, not provide
the individual with a right of action. Thus, the rule may be waived by the sending state.
The political offense exception to extradition has historically been intended to prevent
extradition in cases where the receiving state intended to prosecute a fugitive for what are
considered political crimes, such as treason, desertion, and statements of opposition to the
government. However, the modern trend, driven by concerns about terrorism, has been to
limit the political offense exception, if not eliminate it altogether in the case of violent
offenses. Thus, the multilateral terrorism conventions adopted in the 1970s and later68
have adopted a “prosecute or extradite” obligation for certain acts of violence without
consideration of motive or characterization of the acts as “terrorism.” On a parallel
bilateral basis, to address court rulings applying the political offense exception to British
requests for IRA suspects, the United States and the United Kingdom amended their
bilateral extradition treaty to exempt from the political offense exception a majority of
violent crimes associated with terrorism.
The process of extradition is far more solicitous of state interests than individual
interests. And, while marked by diplomatic notes with ribbons, the process itself can
show both flexibility as well as rigidity. States that wish to extradite will work hard to do
so. The United States, for example, in the absence of a bilateral treaty with Egypt, relied
on a nineteenth-century treaty with the Ottoman Empire to obtain custody over a fugitive.
Conversely, states that do not wish to extradite will find in the extradition process
opportunities to erect legal obstacles or to delay a process sufficiently to dampen
requesting state enthusiasm. Ultimately, like much of international law, extradition
practice is based on reciprocity. If the United States does not honor its commitments to
extradite, our partners may abstain from honoring their commitments, and vice versa. In
short, the sanction for noncompliance is noncompliance.
These are the basic rules. However, terrorism is different. Since 1996,
amendments to the code permit the transfer of fugitives from the United States in the
absence of a treaty of persons other than U.S. citizens, nationals, or permanent resident
aliens, who have committed crimes of violence against U.S. nationals. Such extra-treaty
transfers require certification by the attorney general that, in effect, the principle of dual
criminality and the political offense exception would not be applicable if the fugitive
were transferred pursuant to treaty.72 The amendment reflects and recognizes the treaty
basis for extradition, the historical practice of states to differentiate between their own
nationals and those of other states, and the importance of terrorism in driving changes to
the practice of extradition as well as other means of transferring fugitives and suspects.
Under the Ker-Frisbie doctrine, U.S. courts will not look to the manner in which a
defendant came before the court so long as the court has personal jurisdiction and
substantive jurisdiction over the charged offense.73 However, where the manner of
apprehension “shocks the conscience” and the U.S. government is complicit in such
conduct, a court may divest itself of jurisdiction and order the accused returned to his or
her status quo ante.74 This exception to the Ker-Frisbie doctrine is known for the lead
case in the area Toscanino. However, in practice Toscanino has not deterred U.S. practice
in seizing fugitives abroad for national security purposes. Moreover, these doctrines
recognize the availability of informal assistance, with or without a treaty, for obtaining
custody of fugitives.
In the national security area, extraordinary renditions are not extraordinary at all.
Informal processes of transfer are the prevalent method for obtaining custody over
fugitives abroad. This reflects the security risk inherent in initiating formal extradition
requests. It also permits governments who are either unwilling or unable to transfer
fugitives publicly via extradition to do so through quiet means. Rendition also affords
governments with domestic constituencies who may disagree with a particular transfer or
oppose the United States generally an opportunity to do so without notice as well as to
transfer nationals outside legal frameworks that do not permit such extradition. Finally,
rendition in any form is inherently faster than extradition, which can make all the
difference where critical information may be forthcoming as part of the process of plea
negotiation or threat of re-transfer to a third country.
Rendition is not a new practice.76 Public testimony of former DCI Tenet
indicates that there were at least seventy such renditions before 9/11, and the Department
of State has posted a list of renditions on its website. But there is also no question that
after 9/11 the United States has increased the practice of so-called third-party renditions,
where the United States facilitates the transfer of a fugitive from one state to a third state,
in lieu of obtaining custody of the fugitive itself. If one includes transfers to and from the
U.S. facilities at Guantanamo Bay, Cuba, and perhaps elsewhere, the number of U.S.
third-party renditions is easily measured in the hundreds, perhaps more. Third-party
renditions may occur where the subject(s) is known to have committed acts of violence
associated with terrorism, but over which the United States may not have jurisdiction or
may not have adequate evidence to detain the individual. Such transfers may also occur
where the sending state may not wish to be seen surrendering the subject to U.S. custody,
but is prepared to send the subject to a third state, without U.S. fingerprints on the
operation. Further, as occurs between concurrent jurisdictions in the United States (e.g.,
federal and local prosecutors), governments may themselves opt to send fugitives to
“preferred” locations, where the rules of evidence may be relaxed or penalties more
severe.
There is also no question that the practice of rendition, especially after 9/11, raises
legal and policy concerns not present in ordinary extradition practice. First, persons
rendered to certain third countries may indeed be subjected to treatment considered
abhorrent or unlawful in the United States or by the international community on whose
assistance the United States depends. According to the government of Canada, this has
occurred. The question is how often, not whether. Moreover, because terrorist renditions
are usually accomplished in secret, ordinary safeguards that might exist through judicial
or even media oversight are absent. Second, in the absence of the procedural safeguards
incumbent in ordinary extradition practice, subjects of rendition may be incorrectly
identified and innocent persons transferred. Moreover, even where the correct person is
rendered, the predicate information for doing so is unlikely to be subject to the same
measure of validation as in the case of extradition. In contrast, extradition warrants are
subject to independent judicial (as well as adversarial) review as well as executive review
by Justice and State Department lawyers. Moreover, the warrants are ultimately signed by
the secretary of state, who is unequivocally accountable for what happens.78 Each of
these factors elevates the importance of effective internal executive process in reviewing
rendition practice.
Whatever moral judgments are made about the practice of rendition during a
conflict with jihadist terrorism, lawyers must consider in context whether U.S.
involvement is of a qualitative nature to implicate U.S. statutes and international legal
norms that would bar such transfers, or alter the manner and conditions under which
transfers occur. The legal template of review should include three areas of law: domestic,
international, and foreign. First, a rendition must comply with U.S. law. That means as a
threshold, the operation must be properly authorized. Depending on the facts, an
extraordinary rendition might constitute covert action, a liaison activity, or a traditional
law enforcement activity. If the operation constitutes covert action, then the president
must authorize the activity, or it must fall within the parameters of an existing
authorization. If the rendition falls under existing authority, then lawyers would need to
consider if the activity nonetheless constitutes a significant undertaking requiring
additional authorization.
If not covert action, the operation must still be approved in a manner consistent
with internal U.S. directives, unclassified in the case of the United States Attorney’s
Manual, but otherwise generally classified. An operation that involves special means or
assets, special risks to U.S. persons or to bilateral relations, or includes the violation of
the territory of an unwitting state, should be subject to special processes and mechanisms
of review and decision. Depending on the circumstances of the rendition, congressional
notification may also be warranted, or required (perhaps in the event an action is deemed
a significant undertaking pursuant to existing covert action authority). Rendition may also
implicate U.S. criminal law, including Title 18, section 2340, which prohibits torture, and
section 2441, which addresses certain war crimes, subject to the applicable provisions of
the Military Commissions Act of 2006. In addition to these laws relating to torture and
war crimes, other U.S. criminal laws may be implicated depending on the operational
nature of the rendition contemplated. For example, if the subject is intended to be brought
to the United States for prosecution then lawyers will need to consider whether and how
Fifth Amendment rights and procedures might apply as a matter of law or legal policy.
As an unclassified benchmark, a lawyer might consider the rendition of Fawaz Yunis
from Beirut to the United States in 1987 recounted in numerous court opinions.79 And, to
take an extreme hypothetical, if the rendition is to be accomplished by storming a civilian
aircraft on the tarmac at a civil airport, then lawyers would have to consider whether U.S.
criminal statutes applicable to the safety of civil aircraft were implicated.
Where U.S. criminal law relating to torture is implicated the U.S. government has
stated that it seeks assurances regarding the treatment of the subject from the receiving
state, including regarding the manner of the subject’s interrogation, prosecution, and U.S.
access to the subject as well as the information obtained from interrogation. In context,
assurances from the receiving state may be required as a matter of U.S. law, depending in
part on the degree of U.S. involvement and direction during and after the rendition. It
should also depend on the track record of the country in question, both with respect to its
treatment of prisoners and its adherence to prior assurances.
Renditions also implicate international and foreign law. Under international law
kidnapping (a.k.a., snatches without the consent of the host government) is viewed as a
violation of the territorial integrity of the host state (and in all likelihood a violation of
local foreign law as well). However, as a matter of international law, the violation of
sovereignty implicates the rights of the host state and not necessarily the rights of the
subject of rendition. Call this “the Eichmann rule,” after Adolf Eichmann, a principal
Nazi architect of the Holocaust, who was abducted by Israeli agents in Argentina in 1960.
The government of Argentina protested the violation of its territorial integrity and
requested a meeting of the Security Council to protest. The Security Council
subsequently passed a resolution stating that “acts such as that under consideration . . .
may, if repeated, endanger international peace and security.” In addition, Israel was
requested to “make appropriate reparation in accordance with the UN Charter and the
rules of international law.”
What is new is the multidimensional application of foreign law. In addition to
local criminal laws, lawyers must consider the possible application of foreign laws
implicating international conventions on torture, war crimes, and other offenses, as well
as the multiple forums that might assert jurisdiction over such allegations. For example,
the fact that U.S. lawyers or presidents take the view that an activity does not constitute
torture, or that assurances are adequate as a matter of U.S. law, does not mean that a
foreign state will have implemented the Torture Convention with the same interpretation
in mind. Moreover, the U.S. view of the law may be predicated on principles of
constitutional rather than international law, which would not apply in foreign context. In
addition, good faith interpretations may vary depending on context, including the degree
to which the foreign state’s view of the law is informed by the same national security
imperatives and pressures as the U.S. view.
The threat of WMD terrorism, and in particular the use of a nuclear device, will
place extreme pressure on the intelligence function and its ability to find facts and predict
intent. Intelligence is the fuel of counter-terrorism. It is the predicate for anticipatory self-
defense and it is at the root of rendition practice. The conflict with jihadist terrorism may
not be won on the library shelves of America, but it may be lost there if we lack the
contingent authority to find an essential connection in the intelligence mosaic. This
means that a successful campaign against terrorism requires broad and flexible authority
to gather and integrate information. However, the sine qua non for such authority should
be a meaningful process of appraisal, meaning the considered application of
constitutional structure, executive process, legal substance, and the review of decisions,
both before and after they occur. The successful use of the intelligence instrument will
require constant appraisal and reappraisal of risk, including the risk to our legal values
and therefore our public image and capacity to deter the next generation of jihad.
