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CIA "Torture" Leaks Must Be Investigated, But Properly


Thursday, Nov. 17, 2005

I've spent much of my adult life working for the Central Intelligence Agency and the Department of Justice, and eight years of it in the U.S. House of Representatives on the Judiciary Committee. Accordingly, few things upset me more than leaks of information that could damage U.S. national security and endanger the lives of undercover operatives; especially if such leaks also allege that federal laws are being broken or circumvented.

The most recent such leak was the anonymous disclosure, by highly-placed government officials, that the CIA maintains a network of highly secure and secret prisons across the world. The sources allege that in these locations, torture takes place.

In general, news that intelligence agencies maintain secret facilities around the world -- and sometimes imprison suspects there -- comes as no surprise to readers who are even moderately informed on national security issues. In this case, however, the public disclosure of this prison network has thrust the issue into the harsh glare of the national political spotlight, forcing us to answer two troubling questions.

First, how should we handle the criminal investigation of this leak - through the Department of Justice alone, or also through Congressional investigation?

Secondly, must our judicial system now do something to ensure the laws of our nation - including those protecting persons in U.S. custody against improper treatment, including torture - are respected, even if such activities are conducted in facilities in other countries?

How Should The Criminal Investigation Of the Leak Be Handled?

On the first question, the Washington response has been fairly typical. Following the procedure set out for investigating high-level leaks, the CIA forwarded its internal evidence to the Department of Justice, in a formal request to investigate.

Unfortunately, this request was soon followed by a rush by leaders in both houses of Congress to jump into the fray with investigations of their own. This is precisely the wrong approach to take.

Congressional investigations are appropriate when there is probable cause to believe the White House or top Administration officials might personally interfere with a Justice Department investigation. That is not likely to happen here, because the Administration wants to catch the leaker or leakers who released this embarrassing information as badly as anyone does.

Why? The Administration's motive is not necessarily to punish a person or persons responsible for improperly revealing sensitive, security-related intelligence. But it may be to find out, at least, the source of the leak - for this particular leak is rather embarrassing to the Administration; it illustrates that the Administration may not be telling the truth when it repeats soundbite denials of practicing torture.

Our counterintelligence investigators at FBI and other federal agencies are very good at what they do, having honed their skills during decades of cloak-and-dagger work against Soviet operatives in the U.S. When Congress launches competing counterintelligence investigations and tries to manage them from the Hill, it usually adds very little in terms of additional benefit; and it can severely hamper DOJ/FBI investigations.

For example, simultaneous or preemptive congressional investigations may complicate such legal issues as grants of immunity, custody of evidence, and issuance of subpoenas. (Immunity, once granted by Congress, may hamstring DOJ as well.) Every witness and every piece of evidence will become subject to a legal tug-of-war between lawyers representing both investigations. FBI investigators may spend as much time babysitting Congress, as they do trying to pinpoint the source of the leak.

Of course, there are times when independent congressional investigations are productive and appropriate - but this does not appear to be one of them, at least at this early stage. So instead of attempting to grab turf, preen before the cameras, or generate quick headlines, Congress should take a back seat to the Justice Department investigation, unless and until there is specific reason to believe the Department is biasing its actions to protect one or more individuals within the Administration, or dragging its feet.

Should that prove to be the case, calls for appointment of a special prosecutor, or initiation of a full congressional investigation would be most appropriate.

Must U.S. Courts Protect Persons in U.S. Custody Abroad?

The more difficult question raised in this matter is deciding what to do in light of the public disclosure that the U.S. allegedly maintains secret prisons around the world in which torture is conducted, or at least condoned.

Having such information leaked onto the front pages of the Washington Post is going to - and should - force a public debate about how far domestic standards of due process should be applied to detainees abroad; and whether U.S. laws signed by U.S. presidents and the signatures of the United States of America to treaties barring torture, mean anything post-9/11.

Focus Should Be On the Broader Question of Torture in U.S. Custody Abroad

Simply put, the Bush Administration does not have a spectacular record when it comes to assuring that the basic human rights of detainees are respected -as the Abu Ghraib photographs graphically showed. This latest leak drags that ugly issue back into public scrutiny.

What the Administration and Congress should do now, is seize this opportunity to comprehensively and publicly review not just the specifics of any particular detention practice and procedure, but the degree to which - in general, and in the future -- domestic due process is, and should be, extended abroad.

Talking about the legal process of international detention might generate an uncomfortable situation - one that will force us to decide how far, as a country, we are willing to go, or should go, to prevent terrorism.

However, our refusing to engage in debate - as this Administration has been wont to do - diminishes our standing and credibility in the eyes of the rest of the world. And these factors, whether George W. Bush likes it or not, do affect our ability to project and protect our national security interests abroad.

Bob Barr served in the U.S. House of Representatives from January 1995 to January 2003. He was a senior member of the Judiciary Committee. He now practices law, writes extensively, works with the American Conservative Union, and consults on privacy matters with the ACLU.

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