Costs of war: Bogeymen
By Shaun Waterman for ISN
Defenders of the sprawling and fractious collection of US agencies known as the "intelligence community" often argue that they are no worse than the spy outfits of any other countries - but that the system of aggressive congressional and judicial oversight here has meant that such shenanigans are just more likely to come to light.
And they used to have a point.
The British, for instance never held anything like the Church-Pike congressional investigations, although credible reporting shows that, for several years in the 1960s and 70s, senior officials in British intelligence believed that then-prime minister Harold Wilson was a Soviet asset (a conviction shared by the mad head of CIA counterintelligence, James Jesus Angleton) and some were in involved in plotting a military coup to overthrow his government.
But the secret war that has been waged against al-Qaida since 9/11 has put that argument firmly in the dustbin of history.
Vice President Richard Cheney, speaking the weekend after 9/11 in an interview with the US television network NBC which remains a seminal document - the declaration of the war on terror - said that US agencies would have to move to "the dark side, if you will," in their prosecution of the war on terrorism.
Cheney gave that interview from Camp David, where he and the rest of Bush's war cabinet were holed up, sketching out their response to the attacks.
The following day, President George W Bush signed a document called a "memorandum of notification" - a directive to US intelligence agencies. It gave the CIA broad powers to kill suspected al-Qaida leaders - superseding a series of such documents signed by former president Bill Clinton that had provided much more limited authorities for individual operations - and for the first time gave the Agency the authority to detain terror suspects.
Despite granting the CIA broad authority to use lethal force, the memo maintained the long-standing ban on assassination, a former senior intelligence official told this reporter.
The former official said that some administration lawyers, in their efforts to justify such a stance, drew on a theory of anticipatory self-defense, first developed as a defense strategy for battered women who had killed their abusers.
Anticipatory self-defense is employed in so-called "burning bed cases," where abused women kill their abusers while they sleep, or in other circumstances where an attack is not under way or imminent and the conventional concept of self-defense therefore does not apply.
"They borrowed the legal theory […] from these abused women's defenses," said the former official of the debates in fall 2001, "and tried to analogize it to international law, arguing that killing bin Laden was legal because it was self-defense under Article 5 [of the UN charter] because the United States, like a battered woman, needed to be able to kill in advance of the actual assault."
One US intelligence official with first hand experience of dealing with the post-9/11 rules told this reporter that he believes the Agency was still too cautious in using them.
In 2005, former CIA bin Laden hunter Michael Scheuer said that in the previous three years the agency had launched Hellfire missiles from its Predator unmanned aircraft "far less than 10" times. "Not because there were no targets, but because the legal requirements necessary before you pull the trigger are so onerous."
But the memo also gave the go-ahead for the development of the CIA's so-called "black sites" - secret detention centers on the territory of US allies - where the Agency employed interrogation techniques that, whatever the Department of Justice might argue, clearly amount to torture.
It almost doesn't matter that the Agency used waterboarding only a handful of times, and put no more than a few dozen of al-Qaida's top people through their detention programs.
Torture, as Camus observed, is like a poison in the body politic, and it spreads, in this case through the "enhanced interrogation techniques" former secretary of defense Donald Rumsfeld authorized for use first at Guantanamo, then in Iraq; and on the craven insistence of the Departments of Justice and State on accepting assurances from Syria, Pakistan and other allies that they would not torture prisoners sent there.
In fact, the 17 September memo turned out to be just the first in a series of secret memoranda, opinions and orders that created something scarily like a shadow government - a series of programs for the detention, interrogation, surveillance, rendition and killing of suspected terrorists stretching through the intelligence agencies and the military to involve elements of the Departments of Justice, State and Homeland Security.
In a way, the defenders' argument - that the real problem US three-letter agencies have is the enforced transparency they are subject to - has been borne out by the dramatic exposure of the rendition program, the black sites and the NSA's warrantless domestic electronic surveillance and data-mining.
But these programs were exposed by the press, not as a result of congressional oversight. Indeed, some members of Congress seem to have known all along about several of the most controversial new measures.
Initially, according to the former intelligence official, only the so-called "Gang of Eight" - the minority and majority leaders of both chambers of Congress and the chairmen and ranking members of the two intelligence committees - were told about Bush's 17 September memo. The members were summoned to special secure offices to receive a brief phone call informing them of the memo.
"There was no real consultation with Congress" in drawing up the document, acknowledged Roger Cressey, who worked at the National Security Council at the time. But he added, "Even if Congress had been consulted, do you think there was a single member who would have said, 'Whoa, hold up, wait a minute, these powers are too broad?' […] The consensus was that another round of attacks was pending and Congress would support any action to stop it."
The NSA's domestic surveillance program was also brought to the attention of the Gang of Eight, with members summoned to be briefed by Cheney.
But the fact that these programs came to light will not have been lost on the foreign intelligence agencies with which US officials must deal - especially those from countries, including some important allies in the war on terror, where rulers take a much more aggressive approach to controlling such information.
A report this week in the Washington Post stating that Department of Defense cameras were rolling when foreign intelligence officials met detainees from their countries at Guantanamo Bay - and the possibility that they might be made public as part of habeas lawsuits - is likely to stoke that concern.
In Europe, the revelation that governments allowed rendition flights, with some even hosting black sites, has caused major embarrassment to intelligence agencies there, and a British parliamentary committee recently recommended that the country no longer accept US assurances about torture.
One diplomat told ISN Security Watch that the CIA had broken its bargain with European agencies by allowing the rendition program to become public. "The deal was, we let you do this, you don't embarrass us," the diplomat said.
But more important even than its reputation abroad is the opinion Americans have of US intelligence.
CIA Director General Michael Hayden has repeatedly said that the Agency needed the public's trust to do its job.
Some poll data suggests that trust may be slipping away. The Michigan-based Ponemon Institute conducts an annual survey of Americans' trust in federal agencies' protection of their privacy.
Seven thousand participants are asked about 74 federal agencies. In the last two years, the CIA and the NSA have been in the bottom five.