Last month, the Central Intelligence Agency (CIA) released a blistering report that documented a secret drug interdiction program in Peru that was responsible for the death of an American missionary and her infant daughter in 2001. The report provided a detailed study of the efforts of senior CIA leaders, including Deputy Director John McLaughlin and Deputy Executive Director John Brennan, to cover up Agency malfeasance, stonewalling the White House, the Congress and the Department of Justice (DOJ) on the flaws of the interdiction program. Brennan, who was President Obama’s original choice to be CIA director until the report complicated the confirmation process, is currently the deputy director of the National Security Council (NSC).
McLaughlin was the “villain” in the politicization of intelligence on Iraqi weapons of mass destruction, according to the chief of the Iraq Survey Group, David Kay. Few people remember that it was McLaughlin who actually delivered the “slam-dunk” briefing to the president in January 2003. Nevertheless, the Obama administration named McLaughlin to lead the internal investigation of the CIA’s intelligence failures in the attempted bombing of a commercial airliner and the shootings at Fort Hood, Texas, in 2009.
The detailed report on Peru documents a culture of corruption and deceit at the highest levels of the CIA as well as the interventions of CIA lawyers to stop the DOJ from pursuing prosecutions in the case. The CIA office of general counsel’s aggressive campaign to prevent a criminal prosecution of the agency officers culminated with Deputy Director McLaughlin’s letter to the assistant attorney general that promised “significant disciplinary action” if CIA officers “lied or made knowingly misleading statements” to the Congress, DOJ, the NSC or office of inspectors general (OIG) investigators. The report carefully documents the lies and the stonewalling, but no “significant disciplinary action” has ever been taken.
The CIA tried to present the 2001 shootdown as an anomaly in an otherwise successful program. In fact, the inspector general (IG) report documents procedural failures in all 15 shootdowns that the CIA was involved in between 1995 and 2001. There were no examples of full compliance with intercept procedures in any of the shootdowns. CIA officers knew of and condoned the violations, which formed an “environment of negligence and disregard for procedures,” according to the report.
Violations of procedures required to intercept and shootdown drug trafficking aircraft occurred in all 15 shootdowns in which the CIA participated. CIA personnel in Peru provided innacurate statements reporting that all required procedures had been conducted, high-level agency offficials endorsed these reports and they were passed to Congress and the NSC. In many cases, suspect aircraft were shot down within minutes of being sighted by Peruvian fighter aircraft, without being properly identified, without being given required warnings and without being given time to respond to warnings. Visual signals were not even conducted in the 11 shootdowns that occurred in daylight.
Agency officers and lawyers forwarded inaccurate information to senior agency managers as well as to Congress and the NSC. The office of general counsel specifically advised the Peru Task Force not to report findings dealing with malfeasance. Agency lawyers violated their legal obligations as US attorneys by making sure that reports of violations did not appear in any formal report and, therefore, could not be provided to the Senate intelligence committee, the NSC and the DOJ.
Even CIA Director George Tenet provided incomplete and misleading briefings to the Congress in testimony that was reviewed by John Moseman, the director’s chief of staff and John Rizzo, the deputy general counsel. The failure of the CIA to keep Congress and the NSC fully informed of the program violated the agency’s legal obligations. The family of the 2001 victims received $8 million from the US government on the basis of the false assertion that the missionary shootdown was an aberration in a “program that otherwise had complied with presidentially-mandated procedures.”
The Peru report in 2008 as well as IG reports on renditions and detentions in 2004 and the 9/11 study in 2006 created great animosity toward the OIG within the CIA. Senior members of the National Clandestine Service and the Office of General Counsel were infuriated by the indepedent and hard-hitting IG investigations. They convinced CIA director General Michael Hayden to weaken the role of the OIG. Hayden directed his special counsel to conduct oversight of the IG’s work. This action violated the law that created the statutory IG in 1989 and ignored procedures that were in place to examine the work of the IG.
The unwillingness to pursue failures and to hold senior officials accountable have been part of a larger pattern of corruption over the past three decades. There were a series of phony intelligence assessments prepared by the CIA in the 1980s, including a tailored report linking the Soviet Union to the attempted assassination of the pope in 1981, for which there was no accountability. (The leader of this campaign to politicize intelligence on the Soviet Union currently serves as President Obama’s secretary of defense.) There were specious documents prepared in 2002 and 2003 to pave the way for the use of force in Iraq, including a National Intelligence Estimate and an unclassified white paper, once again without accountability. In fact, the authors of these reports had their careers advanced, while occasional critics were marginalized.
Sadly, President Obama has totally abandoned his campaign commitment to accountability. He has refused to take any action on accountability for torture and abuse, and his administration has refused to pursue legal action against the CIA for the destruction of the tapes that documented the sadistic behavior of CIA employees and contractors. The CIA officer most responsible for the destruction of the tapes, Jose Rodriquez Jr., said that it would be less damaging to destroy the tapes than to allow them to be seen. Rodriquez, who successfully fought a subpoena to testify before the House intelligence committee, could not have been more right.
Clearly, President Obama is following in the footsteps of many of his predecessors, who simply hoped to control controversy at the CIA by failing to address problems directly. His early admonition that he would look forward and not backward has certainly been applied to the CIA. This approach has not worked well in the past and will fail in the end. As a constitutional lawyer, President Obama must realize that the stature of international law is diminished when a nation violates it with impunity and that the stature of a nation is diminished when it commits crimes against humanity.