CIA General Counsel Speech at Harvard Law School

by Kenneth Anderson

I will post analytically about this when I get a moment, but the General Counsel to the CIA, Stephen Preston, delivered an address today at Harvard Law School on the CIA and the Rule of Law.  Lawfare has posted up the full text, but here is a bit of the introduction.  I’ll come back to comment for real later, but I want to commend Mr. Preston for having looking for ways in which the senior lawyer(s) of the Agency can say something publicly about their work and the legal framework in which they approach things that are sometimes genuinely secret, sometimes plausibly, implausibly or, as I mischievously remarked in a panel last week, “preposterously plausible.”

There are reasons for these gradations – particularly, consent for US operations in a country might well be secret and subject to some level of deniability.  But they make it difficult for CIA officials and lawyers even to acknowledge the topics in the abstract.  There will be lots of disagreement, no doubt, about what can or should be made public by executive branch lawyers, whether through DOJ, CIA, DOD, DOS, or other agencies – but I would like to commend Mr. Preston for seeking to find ways to address these issues, to the extent that he and others in the executive believe they can or should do so publicly.

Remarks of the Honorable Stephen W. Preston
General Counsel
Central Intelligence Agency

Harvard Law School
Cambridge, Massachusetts
Tuesday, April 10, 2012

“CIA and the Rule of Law”

AS PREPARED FOR DELIVERY

For those working at the confluence of law and national security, the President has made clear that ours is a nation of laws and that an abiding respect for the rule of law is one of our country’s greatest strengths, even against an enemy with only contempt for the law. This is so for the Central Intelligence Agency no less than any other instrument of national power engaged in the fight against al-Qa’ida and its militant allies or otherwise seeking to protect the United States from foreign adversaries. And that is the central point of my remarks this afternoon: Just as ours is a nation of laws, the CIA is an institution of laws and the rule of law is integral to Agency operations.

Before we get to the rule of law, I want to spend a moment on the business of the CIA.

I will start off with two observations that I think are telling:

First, the number of significant national security issues facing our country may be as great today as it has ever been. Just think of what the President and his national security team confront every day: the ongoing threat of terrorist attack against the homeland and U.S. interests abroad; war in Afghanistan and, until recently, Iraq; complex relations with countries like Pakistan and India; the challenges presented by Iran and North Korea; the emergence of China and its growing economic and military power; the growing number of computer network attacks originating outside the United States; profound change in the most volatile area of the world, the greater Middle East, with new regimes in Tunisia, Egypt, and Libya, and continuing violence in Syria; the financial challenges faced by countries in the Euro zone; and the violence associated with drug trafficking in this hemisphere. And the list could go on.

Second, the national security issues facing our country today tend to be intelligence-intensive. Intelligence is fundamental to the efforts of policy-makers to come to grips with nearly all of the issues I have just listed – whether international terrorism, the proliferation of Weapons of Mass Destruction, the conduct of non-state actors and rogue states outside the community of nations, cyber security, or the rise of new powers. The nation’s leaders cannot fully understand these issues or make informed policy on these issues without first-rate intelligence.

Putting these two dynamics together – the multitude of different national security issues and the fact that intelligence is critical to almost all of them – it may be that intelligence has never been more important than it is today. At the very least, the intel business is booming.

So what does the CIA do? Our work boils down to three jobs. To quote from the National Security Act of 1947:

  • Agency operators, quote, “collect intelligence through human sources and by other appropriate means.” This is also referred to as foreign intelligence collection or, at times, espionage.
  • Agency analysts, quote, “correlate and evaluate intelligence related to the national security and provide appropriate dissemination of such intelligence.” This is also referred to as all-source analysis and national intelligence reporting, and it requires that the products of all intelligence disciplines be integrated.
  • And the Agency performs such other functions and duties as the President may direct, which may include activities to influence conditions abroad, quote, “where it is intended that the role of the U.S. Government will not be apparent or acknowledged publicly.” In other words, covert action.
http://opiniojuris.org/2012/04/10/cia-general-counsel-speech-at-harvard-law-school/

4 Responses

  1. Yes I have read his speech and I have also met his predecessor John Rizzo and asked him about his role.  The point that seems obvious in the longlist of “oversight” structures is that – as we painfully saw with torture – they do not work to provide meaningful oversight.  They are very gamable and no one has sufficient independence in the structure to hold the high level people accountable who are able to hide their misdeeds through assertions of state secret and national security privileges when those injured by their actions seek judicial relief.  The structure is what might be called a cram down that we are supposed to feel comfortable with even though we know that awful awful things have been done in the past in COINTELPRO, using drugs on people, and the torture.  Pick your decade and your set of family jewels and what you find inescapably is that no one is held accountable or faces criminal prosecution at any meaningful level.  I hope my friends at Harvard sleep well after this and the other speeches made by people who are encouraging them to rest assured the military commissions are just fine and the CIA never does anything that is a crime.  The real world of what we know about the torture tells us differently – just bring Al-Qahtani out in the light or show us the tapes – oh sorry they were destroyed.  I do not find any of these assurances reassuring.  Au contraire.
    Best,
    Ben

  2. Critical comment on the speech that I drafted was somehow deleted – way to go CIA.
    Best,
    Ben

  3. See it is now up (thanks to the heads up from Peggy).  For some reason ended up in the spam file.  If that is a message CIA, it is not very well done.  You do not have a monopoly on patriotism – just on power.
    Best,
    Ben

  4. Maybe the general counsel can explain the revelations of this article about the release of the SERE manual today about the torture of Zubaydah before the torture memos were written and the obfuscation by the principals including Yoo about what happened in the May 2002 or earlier period.

    http://www.eurasiareview.com/12042012-us-pentagon-releases-training-manual-used-as-basis-for-bushs-torture-program-oped/

    Best,
    Ben

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