By Nicole Carle
Since its inception, the Central Intelligence Agency (CIA) has operated with little oversight and control by other authorities. But considering its actions over the past few decades, there is no reason why Congress should not treat the CIA like any other appropriated agency. Considering the significant amount of freedom granted to the CIA in counterterrorism operations, and the fact that such operations has not produced significant or accurate intelligence thus far, the Senate Intelligence Committee has grounded reasoning to become more involved in oversight measures of the agency. After Hahn v. Gottlieb, 430 F. 2d 1243 (1st Cir. 1970) agencies are generally given discretion, but also subjected to judicial review by Article III courts. It has yet to be publicly questioned whether the CIA’s continued use of enhanced interrogation methods can be deemed “arbitrary and capricious” under the Administrative Procedure Act (1946). There is no evidence of the program’s success, any expert consultation in formulating the program’s techniques,or of adequately prepared interrogators when the program commenced. For discernible reasons, due to the nature of their work, CIA agents and support team employees cannot be as transparent as staff from other rulemaking agencies. However, CIA officials make rules and decisions that carry some of the gravest consequences for both non-citizen detainees and, more broadly, the safety of American citizens. Consequently, they should be required to follow the same standards set for other rulemakers at other agencies. If another agency submitted false reports, testimony, or information to Congress, or failed to follow its own rules for that matter, that agency would surely be reprimanded in some capacity.
It is well accepted that employees only report full and accurate information to their bosses. Without doing so, repercussions would be expected. As part of the executive, CIA agents answer to the president. Failure to inform him of used interrogation techniques is considered “rogue” behavior, as was reported in a 2014 report. According to the New York Times, “… little of this kind of disarray came to the attention of the congressional oversight agencies, the White House, or the public…” and the CIA actively misled oversight officials. What would happen if the Department of the Interior started bulldozing national parks, but lied about its actions, or, furthermore, the effects of them? Or if it exclusively selected more amenable pieces of its plan to the media in order to suppress public outcry? Furthermore, considering it was the lack of multi-agency information sharing and a lack of transparency between agencies that led to 9/11, it is crucial for the executive branch to seriously consider the CIA’s unwillingness to provide full and accurate reports to policymakers and the President himself. This failure to provide information, both on the nature of the operations and the intelligence acquired, is counter-intuitive of the operation. This deliberate miscommunication only augments the argument for greater oversight authority of the agency by both executive and legislative authorities.
Additionally, what, if any, procedure is there to demand recourse for the agency’s overstep of authority? If corrective action is normal for military officers and other members of law enforcement or security forces, the same should be expected of CIA agents and interrogators. However, with that said, it is difficult to ignore the numerous and often conflicting authorities on the matter, making discerning a coherent policy relatively complex. There are directions from the President, Congress, the U.S. Department of Justice, as well as international laws and customs, all (at least tangentially) concerning the scope of CIA discretion. It is understandably frustrating to operate an agency in a novel field with no explicit and agreed- upon guidelines and “mistakes will likely be made.” And without consequences built into the Torture Act, what recourse can be sought for victims? However, some may say that it is always better to err on the side of caution and respect for human rights. The failure to implement clear policy guidelines should result in reprimand of agency officials to deter further repetition of vile and failed techniques of interrogation in the future. In no other situation are there such obstacles for those litigating in Article I courts than human rights attorneys defending those at Guantanamo Bay, where these hoops and hurdles “essentially paralyze” their efforts to seek recourse for certain detainees. Not only do these attorneys lack statutory authority that strictly protects their clients, but their clients are denied basic procedures and tools to provide for the adequate defense guaranteed to accused individuals under international custom. As there is clear evidence of flawed operations within this area of the CIA, at the very least, there should be tangible relief for those who are the victims of it.