31/12/2005 - "LA STAMPA", Pag. 1
SE QUESTA E' VERA DEMOCRAZIA
di: BARBARA SPINELLI
www.difesa.it/files/rassegnastampa/051231/9I3KY.pdf
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WASHINGTON POST
Covert CIA Program Withstands New Furor
Anti-Terror Effort Continues to Grow
By Dana Priest
Washington Post Staff Writer
Friday, December 30, 2005; Page A01
The effort President Bush authorized shortly after Sept. 11, 2001, to fight
al Qaeda has grown into the largest CIA covert action program since the height
of the Cold War, expanding in size and ambition despite a growing outcry
at home and abroad over its clandestine tactics, according to former and
current intelligence officials and congressional and administration sources.
The broad-based effort, known within the agency by the initials GST, is compartmentalized
into dozens of highly classified individual programs, details of which are
known mainly to those directly involved.
GST includes programs allowing the CIA to capture al Qaeda suspects with
help from foreign intelligence services, to maintain secret prisons abroad,
to use interrogation techniques that some lawyers say violate international
treaties, and to maintain a fleet of aircraft to move detainees around the
globe. Other compartments within GST give the CIA enhanced ability to mine
international financial records and eavesdrop on suspects anywhere in the
world.
Over the past two years, as aspects of this umbrella effort have burst into
public view, the revelations have prompted protests and official investigations
in countries that work with the United States, as well as condemnation by
international human rights activists and criticism by members of Congress.
Still, virtually all the programs continue to operate largely as they were
set up, according to current and former officials. These sources say Bush's
personal commitment to maintaining the GST program and his belief in its
legality have been key to resisting any pressure to change course.
"In the past, presidents set up buffers to distance themselves from covert
action," said A. John Radsan, assistant general counsel at the CIA from 2002
to 2004. "But this president, who is breaking down the boundaries between
covert action and conventional war, seems to relish the secret findings and
the dirty details of operations."
The administration's decisions to rely on a small circle of lawyers for legal
interpretations that justify the CIA's covert programs and not to consult
widely with Congress on them have also helped insulate the efforts from the
growing furor, said several sources who have been involved.
Bush has never publicly confirmed the existence of a covert program, but
he was recently forced to defend the approach in general terms, citing his
wartime responsibilities to protect the nation. In November, responding to
questions about the CIA's clandestine prisons, he said the nation must defend
against an enemy that "lurks and plots and plans and wants to hurt America
again."
This month he went into more detail, defending the National Security Agency's
warrantless eavesdropping within the United States. That program is separate
from the GST program, but three lawyers involved said the legal rationale
for the NSA program is essentially the same one used to support GST, which
is an abbreviation of a classified code name for the umbrella covert action
program.
The administration contends it is still acting in self-defense after the
Sept. 11 attacks, that the battlefield is worldwide, and that everything
it has approved is consistent with the demands made by Congress on Sept.
14, 2001, when it passed a resolution authorizing "all necessary and appropriate
force against those nations, organizations, or persons [the president] determines
planned, authorized, committed, or aided the terrorist attacks."
"Everything is done in the name of self-defense, so they can do anything
because nothing is forbidden in the war powers act," said one official who
was briefed on the CIA's original cover program and who is skeptical of its
legal underpinnings. "It's an amazing legal justification that allows them
to do anything," said the official, who like others spoke on the condition
of anonymity because of the sensitivity of the issues.
The interpretation undergirds the administration's determination not to waver
under public protests or the threat of legislative action. For example, after
The Washington Post disclosed the existence of secret prisons in several
Eastern European democracies, the CIA closed them down because of an uproar
in Europe. But the detainees were moved elsewhere to similar CIA prisons,
referred to as "black sites" in classified documents.
The CIA has stuck with its overall approaches, defending and in some cases
refining them. The agency is working to establish procedures in the event
a prisoner dies in custody. One proposal circulating among mid-level officers
calls for rushing in a CIA pathologist to perform an autopsy and then quickly
burning the body, according to two sources.
In June, the CIA temporarily suspended its interrogation program after a
controversy over the disclosure of an Aug. 1, 2002, memorandum from the Justice
Department's Office of Legal Counsel that defined torture in an unconventional
way. The White House withdrew and replaced the memo. But the hold on the
CIA's interrogation activities was eventually removed, several intelligence
officials said.
The authorized techniques include "waterboarding" and "water dousing," both
meant to make prisoners think they are drowning; hard slapping; isolation;
sleep deprivation; liquid diets; and stress positions -- often used, intelligence
officials say, in combination to enhance the effect.
Behind the scenes, CIA Director Porter J. Goss -- until last year the Republican
chairman of the House intelligence committee -- has gathered ammunition to
defend the program.
After a CIA inspector general's report in the spring of 2004 stated that
some authorized interrogation techniques violated international law, Goss
asked two national security experts to study the program's effectiveness.
Gardner Peckham, an adviser to then-House Speaker Newt Gingrich (R-Ga.),
concluded that the interrogation techniques had been effective, said an intelligence
official familiar with the result. John J. Hamre, deputy defense secretary
under President Bill Clinton, offered a more ambiguous conclusion. Both declined
to comment.
The only apparent roadblock that could yet prompt significant change in the
CIA's approach is a law passed this month prohibiting torture and cruel and
inhumane treatment of prisoners in U.S. custody, including in CIA hands.
It is still unclear how the law, sponsored by Sen. John McCain (R-Ariz.),
will be implemented. But two intelligence experts said the CIA will be required
to draw up clear guidelines and to get all special interrogation techniques
approved by a wider range of government lawyers who hold a more conventional
interpretation of international treaty obligations.
"The executive branch will not pull back unless it has to," said a former
Justice Department lawyer involved in the initial discussions on executive
power. "Because if it pulls back unilaterally and another attack occurs,
it will get blamed."
The Origins
The top-secret presidential finding Bush signed six days after the Sept.
11 attacks empowered the intelligence agencies in a way not seen since World
War II, and it ordered them to create what would become the GST program.
Written findings are required by the National Security Act of 1947 before
the CIA can undertake a covert action. A covert action may not violate the
Constitution or any U.S. law. But such actions can, and often do, violate
laws of the foreign countries in which they take place, said intelligence
experts.
The CIA faced the day after the 2001 attacks with few al Qaeda informants,
a tiny paramilitary division and no interrogators, much less a system for
transporting terrorism suspects and keeping them hidden for interrogation.
Besides fighting the war in Afghanistan, the agency set about to put in place
an intelligence-gathering network that relies heavily on foreign security
services and their deeper knowledge of local terrorist groups. With billions
of dollars appropriated each year by Congress, the CIA has established joint
counterterrorism intelligence centers in more than two dozen countries, and
it has enlisted at least eight countries, including several in Eastern Europe,
to allow secret prisons on their soil.
Working behind the scenes, the CIA has gained approval from foreign governments
to whisk terrorism suspects off the streets or out of police custody into
a clandestine prison system that includes the CIA's black sites and facilities
run by intelligence agencies in other countries.
The presidential finding also permitted the CIA to create paramilitary teams
to hunt and kill designated individuals anywhere in the world, according
to a dozen current and former intelligence officials and congressional and
executive branch sources.
In four years, the GST has become larger than the CIA's covert action programs
in Afghanistan and Central America in the 1980s, according to current and
former intelligence officials. Indeed, the CIA, working with foreign counterparts,
has been responsible for virtually all of the success the United States has
had in capturing or killing al Qaeda leaders since Sept. 11, 2001.
Bush delegated much of the day-to-day decision-making and the creation of
individual components to then-CIA Director George J. Tenet, according to
congressional and intelligence officials who were briefed on the finding
at the time.
"George could decide, even on killings," one of these officials said, referring
to Tenet. "That was pushed down to him. George had the authority on who was
going to get it."
The Lawyers
Tenet, according to half a dozen former intelligence officials, delegated
most of the decision making on lethal action to the CIA's Counterterrorist
Center. Killing an al Qaeda leader with a Hellfire missile fired from a remote-controlled
drone might have been considered assassination in a prior era and therefore
banned by law.
But after Sept. 11, four former government lawyers said, it was classified
as an act of self-defense and therefore was not an assassination. "If it
was an al Qaeda person, it wouldn't be an assassination," said one lawyer
involved.
This month, Pakistani intelligence sources said, Hamza Rabia, a top operational
planner for al Qaeda, was killed along with four others by a missile fired
by U.S. operatives using an unmanned Predator drone, although there were
conflicting reports on whether a missile was used. In May, another al Qaeda
member, Haitham Yemeni, was reported killed by a Predator drone missile in
northwest Pakistan.
Refining what constitutes an assassination was just one of many legal interpretations
made by Bush administration lawyers. Time and again, the administration asked
government lawyers to draw up new rules and reinterpret old ones to approve
activities once banned or discouraged under the congressional reforms beginning
in the 1970s, according to these officials and seven lawyers who once worked
on these matters.
Gen. Michael V. Hayden, deputy director of national intelligence, has described
the administration's philosophy in public and private meetings, including
a session with human rights groups.
"We're going to live on the edge," Hayden told the groups, according to notes
taken by Human Rights Watch and confirmed by Hayden's office. "My spikes
will have chalk on them. . . . We're pretty aggressive within the law. As
a professional, I'm troubled if I'm not using the full authority allowed
by law."
Not stopping another attack not only will be a professional failure, he argued,
but also "will move the line" again on acceptable legal limits to counterterrorism.
When the CIA wanted new rules for interrogating important terrorism suspects
the White House gave the task to a small group of lawyers within the Justice
Department's Office of Legal Counsel who believed in an aggressive interpretation
of presidential power.
The White House tightened the circle of participants involved in these most
sensitive new areas. It initially cut out the State Department's general
counsel, most of the judge advocates general of the military services and
the Justice Department's criminal division, which traditionally dealt with
international terrorism.
"The Bush administration did not seek a broad debate on whether commander-in-chief
powers can trump international conventions and domestic statutes in our struggle
against terrorism," said Radsan, the former CIA lawyer, who is a professor
at William Mitchell College of Law in St. Paul, Minn. "They could have separated
the big question from classified details to operations and had an open debate.
Instead, an inner circle of lawyers and advisers worked around the dissenters
in the administration and one-upped each other with extreme arguments."
At the CIA, the White House allowed the general counsel's job, traditionally
filled from outside the CIA by someone who functioned in a sort of oversight
role, to be held by John Rizzo, a career CIA lawyer with a fondness for flashy
suits and ties who worked for years in the Directorate of Operations, or
D.O.
"John Rizzo is a classic D.O. lawyer. He understands the culture, the intelligence
business," Radsan said. "He admires the case officers. And they trust him
to work out tough issues in the gray with them. He is like a corporate lawyer
who knows how to make the deal happen."
These lawyers have written legal justifications for holding suspects picked
up outside Afghanistan without a court order, without granting traditional
legal rights and without giving them access to the International Committee
of the Red Cross.
CIA and Office of Legal Counsel lawyers also determined that it was legal
for suspects to be secretly detained in one country and transferred to another
for the purposes of interrogation and detention -- a process known as "rendition."
Lawyers involved in the decision making acknowledge the uncharted nature
of their work. "I did what I thought the best reading of the law was," one
lawyer said. "These lines are not obvious. It was a judgment."
Credit and Blame
One way the White House limited debate over its program was to virtually
shut out Congress during the early years. Congress, for its part, raised
only weak and sporadic protests. The administration sometimes refused to
give the committees charged with overseeing intelligence agencies the details
they requested. It also cut the number of members of Congress routinely briefed
on these matters, usually to four members -- the chairmen and ranking Democratic
members of the House and Senate intelligence panels.
John D. Rockefeller IV (W.Va.), ranking Democrat on the Senate Select Committee
on Intelligence, complained in a 2003 letter to Vice President Cheney that
his briefing on the NSA eavesdropping was unsatisfactory. "Given the security
restrictions associated with this information, and my inability to consult
staff or counsel on my own, I feel unable to fully evaluate, much less endorse,
these activities," he wrote.
Rockefeller made similar complaints about the CIA's refusal to allow the
full committee to see the backup material supporting a skeptical report by
the CIA inspector general in 2004 on detentions and interrogations that questioned
the legal basis for renditions.
Some former CIA officers now worry that the agency alone will be held responsible
for actions authorized by Bush and approved by the White House's lawyers.
Attacking the CIA is common when covert programs are exposed and controversial,
said Gerald Haines, a former CIA historian who is a scholar in residence
at the University of Virginia. "It seems to me the agency is taking the brunt
of all the recent criticism."
Duane R. "Dewey" Clarridge, who directed the CIA's covert efforts to support
the Nicaraguan contras in the 1980s, said the nature of CIA work overseas
is, and should be, risky and sometimes ugly. "You have a spy agency because
the spy agency is going to break laws overseas. If you don't want it to do
those dastardly things, don't have it. You can have the State Department."
But a former CIA officer said the agency "lost its way" after Sept. 11, rarely
refusing or questioning an administration request. The unorthodox measures
"have got to be flushed out of the system," the former officer said. "That's
how it works in this country."
Researcher Julie Tate contributed to this report.