CIA Agents Were Not Following "Orders"

by: Daniel De Groot

Sat Apr 18, 2009 at 16:11

Given what Paul has been discussing here today, I want to make a correction to the general debate about whether to prosecute the CIA operatives who directly participated in torturing detainees.  The CIA is a civilian agency, and that means its employees are not subject to prosecution for refusing to obey instructions (not "orders") from superiors in the agency.  They can quit, like anyone of conscience when asked to do something in conflict with their personal ethics.  

Inside I will elaborate on the implications of CIA's civilian status.  I believe it only strengthens the case for prosecution.  

Daniel De Groot :: CIA Agents Were Not Following "Orders"
The CIA was created by the National Security Act of 1947.  It replaced the (too-blandly named) wartime military Office of Strategic Services (OSS) and was deliberately concieved of as a civilian, non-law enforcement agency.  From the act:

(d) HEAD OF THE CENTRAL INTELLIGENCE AGENCY. - In the Director's capacity as head of the Central Intelligence Agency, the Director shall -

(1) collect intelligence through human sources and by other appropriate means, except that the Agency shall have no police, subpoena, or law enforcement powers or internal security functions;

They were also concerned about miltiary officers being placed in charge of the Agency:

(c) MILITARY STATUS OF DIRECTOR AND DEPUTY DIRECTORS. -(1)(A) Not more than one of the individuals serving in the positions specified in subparagraph (B) may be a commissioned officer of the Armed Forces, whether in active or retired status.

Which required that at most one of the top 3 jobs at CIA could be a serving military officer.  These limits are no relic, either, as they survived into the post-9/11 era in the Intelligence reforms of the 9/11 Commission, passed in 2004, which created the Director (and principal Deputy Director) of National Intelligence (DNI) and placed this limit:

''(c) MILITARY STATUS OF DIRECTOR OF NATIONAL INTELLIGENCE AND PRINCIPAL DEPUTY DIRECTOR OF NATIONAL INTELLIGENCE.-(1) Not more than one of the individuals serving in the positions specified in paragraph (2) may be a commissioned officer of the Armed Forces in active status.

In 2006, after Porter Goss resigned as head of the CIA, Bush appointed serving Air Force General Hayden to replace him.  Most of the controvery about that appointment stemmed from Hayden's wire tapping activities as head of the NSA (which is always headed by a military officer).  However, there was substantial concern (including from Republicans) that Hayden's military status made him a less suitable pick for CIA in the wake of the intelligence failures that led to the Iraq war.

"This is a civilian agency," said Sen. Dianne Feinstein, D-Calif. "And it's meant to be a civilian agency. So, you know, he might think about resigning his commission if he's going to do this," the senator, who sits on the Senate Intelligence Committee, told ABC News' "This Week With George Stephanopoulos."

In its 60-year history, the CIA has been run by a half dozen military men -- three while still on active duty -- but the Republican chairman of the House Intelligence Committee says it would be unwise to put a general in change now.

"He's the wrong person, the wrong place, at the wrong time," Rep. Peter Hoekstra R- Mich., said on "Fox News Sunday." "We should not have a military person leading a civilian agency at this time."

Hayden would be confirmed 78-15 (with Feinstein voting "yea" of course).  One of those 15 nays was Dodd, who said of his vote (in part):

But today when the Senate voted on his nomination to be Director of the CIA , these two circumstances were significantly different. First, issues like the potentially illegal wiretapping of American citizens' phone lines by the National Security Agency--a program which General Hayden reportedly designed and ran--have come to light. And second, he will no longer be serving as a deputy but as head of one of our Nation's premier intelligence agencies--yet he is not resigning his commission as a uniformed officer. That raises the question of whether and to what degree he will be independent from decisions made at the Pentagon.

  Some of my colleagues have insisted that Secretary of Defense Donald Rumsfeld will no longer be in the chain of command overseeing General Hayden in his position at the CIA . Certainly, there is precedent for uniformed officers serving as head of the CIA . However, when we look at this precedent we also have to realize that circumstances have changed. A not insignificant part of the reason that we invaded Iraq is because our Nation's intelligence was politicized, and because intelligence activities were manipulated to justify a predetermined conclusion--that Iraq had weapons of mass destruction.

The point of all this is that for 60 years, Congress has been very deliberate in trying to maintain a strong level of civilian control over the process and activities of intelligence gathering.  This is a vital wall of seperation, due to the great power an agency like CIA can wield.  I'm sure the example of the KGB and the domestic abuses of other totalitarian intelligence agencies was a large part of Congress' reasoning in keeping CIA in the realm of dirty civies.  This isn't a minor matter, as from a pragmatic standpoint of intelligence gathering there is much to be said for consolidating all intelligence gathering into the military or FBI.  FBI is technically civilian, but the powers of domestic federal law enforcement are dangerous enough without adding spying to the mix.

All of this was to both protect society from CIA, and to protect the CIA.  CIA agents cannot be "ordered" to do anything in the legal sense, since they are mere civilian employees of a federal agency.  They can quit and should do so when instructed to do things contrary to the Laws of War and numerous international treaties.  These aren't scared 18 year old kids being intimidated into following Lt Calley into atrocity, nor do they go through months of indoctrination into a culture of rigid discipline as is done in the military.  They are independent moral agents, and should not get any kind of pass for this.

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Thanks (4.00 / 2)
for the clarity.

Montani semper liberi

Really excellent (0.00 / 0)
point and well argued.

Naive (4.00 / 1)
The intelligence agencies answer to no one. Just look at how the NSA has continued with its illegal spying activities in spite of laws against it.

If one orders them to cease some activity how would you know that they had done so? They are the ones who are going to report back.

Employees of the agencies are not only sworn to secrecy, but have restrictions placed upon them for the rest of their lives even after they have left government. Do you know if they are threatened with actions which will make it impossible for them to work elsewhere? Since they can't, usually, say that they worked for a spy agency on their resume, they need a cover story when seeking a new job. What if the agency refuses to provide it, or only gives poor references.

Look at a simpler case - Enron. Out of thousands of employees only one was willing to blow the whistle. All they would have suffered was the loss of their job (presumably). But we see cases all the time where whistle blowers are taken to court by vengeful firms (or even the government) and ruined financially.

Finally many in these agencies think they are doing the right thing and bending the rules is necessary. Oliver North is the best example of someone who has been willing to state this openly.

I'm not excusing illegal behavior, but getting people to refuse and ruin their livelihoods is not as simple as you imply.

Policies not Politics

I find your (4.00 / 1)
scenario pretty unconvincing.

I don't know exactly what the real consequences are of a refusal to obey instructions in this context are, and I'd certainly like to get the accurate details here.

But my expectation, given what I know about the culture of defense organizations, is that your suggestion is far off the mark.

I would expect quite to the contrary that, on matters of conscience, CIA agents are allowed to be reassigned within the organization. When it comes to governmental civilian agencies, it is in general no trivial matter to terminate an employee, and, despite the secrecy of what the CIA must engage in, I'm sure there is a complicated process that must be followed before termination is enabled.

In general, the entire process of getting a security clearance, and of performing sensitive and/or risky work is deliberately made to be highly consensual. It would violate that ethic in the extreme not to allow an operative a way out of an assignment on a matter of conscience if they so chose, except, perhaps, under conditions in which only they could perform that assignment. I don't see how any particular operative or official could be, in that sense, indispensable for the role of performing torture.

I expect that the real consequences of a refusal on the grounds of conscience would be to damage one's career path within the organization itself. This may not be an entirely trivial consequence, but it hardly is equivalent to ruining one's entire life.

And of course such a refusal is NOT the equivalent of being a "whistleblower". Whistleblowers, in this context, are going outside the agency and, presumably, breaking the law. That is a very different matter.

Again, I'd like to see what the true binding constraints are here on agents out in the field. Maybe as this issue progresses, we will get that information.


[ Parent ]
Ok. (4.00 / 5)
But if there are subtle forms of coercion being employed, let's bring it out into the open, and have the agents raise that sort of thing as an affirmative defence.  Maybe it should mitigate their offence, but right now we're in the realm of speculation.

Reading the memos, it appears to me CIA was not being dragged kicking and screaming into this stuff.  It may be that the CIA HQ staff was more eager than the underlings, but DoJ didn't come up with the idea of putting a man with an insect phobia into a tiny dark box and putting an insect in with him.

The threatened mass resignations at DoJ were enough to scale back the TSP, so at least 1 agency did have enough gumption to resist what they saw as illegal in the Bush admin.    

[ Parent ]
You Mean The President Is NOT The "Commander In Chief" (4.00 / 2)
of every American?

What next?

The First Amendment is not "just an Amendment"?

"You know what they say -- those of us who fail history... doomed to repeat it in summer school." -- Buffy The Vampire Slayer, Season 6, Episode 3

as for me... (4.00 / 4)
I get annoyed when I see Obama (or Bush) return the salute the Marines who guard him (and should he really have Marines guarding him?)

The militarization of the US government is really worrisome.  It's probably a symptom and not a cause, but I'd like it to be at least noticed and not just taken as par for the course.

[ Parent ]
Civilians easily become too subservient... (0.00 / 0)
San Diego down under is a military town first and foremost.  Growing up there and still to this day, I've always been amazed and disgusted with those that capitulate their rights and even their identities over in blind reverence to some they perceive as more powerful than themselves.

That may be the bug that bit Obama.


Nationalism is not the same thing as terrorism, and an adversary is not the same thing as an enemy.

[ Parent ]
You make a good point when you argue that (4.00 / 1)
These aren't scared 18 year old kids being intimidated into following Lt Calley into atrocity, nor do they go through months of indoctrination into a culture of rigid discipline as is done in the military.  They are independent moral agents, and should not get any kind of pass for this.
The CIA agents who tortured prisoners definitely aren't the equivalent of the low-level Lynndie England/Charles Graner types who took the rap for Abu Ghraib.  On the other hand, I still have more sympathy for the spooks who carried out the orders than for the ones who gave them (whether they were legal orders or not).  Certainly, it's easy for me to pardon them since I wasn't the one being waterboarded, but there's even a certain scientific basis for letting them off the hook. Look at the Milgram experiment: most people, if they had been put in the place of the CIA agents being ordered to torture prisoners, would probably have gone ahead and done it.  This doesn't absolve them morally, but it's more difficult to reproach them for something that most people would have done in their place.  If you need more evidence, look how easy it was for "normal" people to become torturers and executioners in Cambodia or Argentina.  

The people who really deserve to be prosecuted and locked up are the ones who were sitting behind desks in Washington calling the shots: high-level CIA officers, not to mention Bybee, Yoo, Addington, Cheney and Bush.  Unfortunately it's a lot more difficult to pursue people higher up in the chain of command, or the ones who were only giving their "legal advice."  We've already seen this with the Abu Ghraib scandal, where I'm pretty sure nobody above the rank of Sergeant ever faced prosecution.  That said, Obama's order apparently covers everyone relying on Justice Department's legal advice, which covers everyone from the bottom up.  There's a case for giving immunity to the people who actually did the torturing, who probably stood to lose their careers if they objected, with the knowledge that someone else would do the torturing for them.  But there's no excuse for not prosecuting the people who authorized the torture or blindly passed on the orders.

As a corollary (4.00 / 2)
I think pretty much everyone would agree that prosecuting the agents who did the torturing without prosecuting their superiors who gave the order/directive. Under the circumstances, it could be argued that unless Bush and Cheney are to be prosecuted, nobody should be prosecuted. I think there are higher-ups lower than Bush and Cheney who are 100% culpable and should be prosecuted even if Bush and Cheney are not - for instance, who made the request for legal clarification regarding the precise methods of "non-torture"? But if only the CIA agents who actually carried out the torture were to be prosecuted, that would be a travesty.

This really is the reason for the international court. It does turn out to be quite difficult for a country to prosecute its own war criminals. And regarding the Nuremberg comparison, it's worth noting that the Nuremberg Principles all refer to international law - the facts of the case at the time being that the criminals were to be prosecuted and punished in an international court because it was deemed unlikely that they could be prosecuted in German courts.

It would be nice if Obama took a hard line on Bush administration criminal behavior, but I'll be perfectly happy if he simply avoids too much obstruction of international courts that decide to weigh in. The Spanish court proceedings will therefore be the next big test for Obama in this regard.

[ Parent ]

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