A question for America: should a CIA official ever be obliged to face the public?

The recent events that have produced the impeachment inquiry have generated some questions to ponder: should those who classify themselves as whistleblowers always be entitled to have their identity kept from the American people?  Do the principles of transparency, accountability, and fundamental fairness in cases of enormous import to a democracy mean that sometimes the public must be allowed to assess the credibility of an accuser?

A devil’s advocate might provocatively put the key question this way: should Americans permit an officer of a secret intelligence agency to exploit his or her access to sensitive, non-public matters to collect information against a U.S. citizen without seeking the normal approvals for doing so, and thereafter be able to remain in the shadows even when the product of his probe is used in an effort to unseat an elected American who has sharply criticized the intelligence agency that employs the accuser?

In unpacking these issues let’s also ask ourselves: are there unique considerations when the informer is an official of the Central Intelligence Agency (CIA) (an organization which says its “mission is to collect information related to foreign intelligence and foreign counterintelligence,” and whose charter generally prohibits the domestic collection of information against American citizens) and is someone who did not witness the events in question but instead collected information from others about them and his U.S.-person target?

Does an “investigative mission” which collects information on a US citizen and was “carried out in stealth” and “behind the scenes” effectively constitute spying?

Officially, the CIA insists that “Myth 1” about the agency is that it “spies on US citizens.”

Yet the Washington Post, says the CIA officer who in this instance “has almost single-handedly set in motion the gears of impeachment,” initiated what the Post characterized as his “investigative mission” with information, he says, he was able to collect in the “conduct of…[his] official duties.”  Notably, the Post says that the officer’s investigation was “carried out in stealth.”

That “stealth” operation, the officer’s own report indicates, lasted a period of at least four months and involved collecting and analyzing reports from what he says are “multiple U.S. Government officials.”  The Post claims the CIA official “moved swiftly behind the scenes to assemble material from at least a half-dozen highly placed — and equally dismayed — U.S. officials,” and then “wove their accounts with other painstakingly gathered material” to create his allegations.

Clearly, the CIA operative – employing “stealth” and operating “behind the scenes” – conducted an extensive collection of materials in his investigation of a U.S. citizen, so decide for yourself if that is effectively “spying.”

For its part, the CIA understandably disclaims domestic spying because it’s typically illegal. There is history behind that prohibition, and the American Civil Liberties Union (ACLU) explains some of it:

In its 1947 charter, the CIA was prohibited from spying against Americans, in part because President Truman was afraid that the agency would engage in political abuse. But the law didn’t stop the CIA from spying on Americans.  During the 1960s, in clear violation of its statutory mission to co-ordinate foreign intelligence operations only, the CIA ventured into the domestic spying business through “Operation Chaos,” in which it spied on as many as 7,000 Americans involved in the peace movement.

Operation Chaos was a serious breach of faith with the American people by the intelligence community,  and it resulted in a major Senate inquiry known as the “Church Committee” (after its Chairman, Senator Frank Church).  An extract of the final report is below:

The Church Committee report engendered reforms, including Executive Order 12333, intended to protect Americans from being spied upon.  However, not everyone thinks they are working as well as may have been hoped.

For example, the ACLU cites a number of post 9/11 activities by the CIA, and concludes that the “history of the CIA’s abuse of power and the continuing lack of public accountability over CIA operations make such revelations concerning to civil liberties advocates.”

Occasionally, even the CIA itself admits misusing its power.  In 2014 the New York Times reported that an internal CIA inquiry affirmed it “spied on a Senate panel.”  The Times also said that:

“The report by the [CIA’s] inspector general also found that C.I.A. officers read the emails of the Senate investigators and sent a criminal referral to the Justice Department based on false information, according to a summary of findings made public on Thursday.  One official with knowledge of the report’s conclusions said the investigation also discovered that the officers created a false online identity to gain access on more than one occasion to computers used by the committee staff.”

It is not known exactly what techniques or intelligence tradecraft the CIA officer in this instance may have employed in collecting, analyzing, and assembling information into allegations against the Executive Branch’s highest official, or who – if anyone – might have collaborated with him.  (One pundit insists that the form of the report has the cast of “a legal brief which has been vetted by lawyers.”)  It’s also unknown if the CIA officer in question has conducted any similar “investigative mission[s]” against other U.S.-person targets, or has more underway.

In any event, it’s rather ironic that a 2014 article in The Atlantic (“A Brief History of the CIA’s Unpunished Spying on the Senate”) notes that it was Nancy Pelosi – who is now calling for an Executive Branch impeachment based on allegations by a CIA officer – who raised concerns that the CIA may have “violated the separation of powers principles embodied in the United States Constitution” with respect to the Legislative Branch.

Yes, there is a process that allows a CIA official to collect information on an American citizen

It should be said that, as the CIA very correctly points out, there are certain circumstances where the agency can lawfully investigate Americans if certain procedures are followed:

By direction of the president in Executive Order 12333 of 1981, and in accordance with procedures approved by the Attorney General, the CIA is restricted in the collection of intelligence information directed against US citizens.  Collection is allowed only for an authorized intelligence purpose; for example, if there is a reason to believe that an individual is involved in espionage or international terrorist activities.  The CIA’s procedures require senior approval for any such collection that is allowed, and, depending on the collection technique employed, the sanction of the Director of National Intelligence and Attorney General may be required. These restrictions have been in effect since the 1970s. (Emphasis added.)

Would such a narrow exception apply here?  There is no indication the CIA official even sought, let alone obtained, the required approvals.  Regardless, is there an “intelligence purpose”?

The Department of Justice’s Office of Legal Counsel concluded on Sept 27 that the conduct alleged in the operative’s report “does not relate to “the funding, administration, or operation of an intelligence activity” under the authority of the Director of National Intelligence.”

In any event, aren’t we obliged to ask ourselves this very uncomfortable question: what’s to prevent another CIA officer (whose “official duties” give him unique access not just to people, but also to a myriad of sensitive databases and other materials) from conducting his own stealthy “investigative mission” into any number of elected officials (or other Americans who may be perceived as hostile to his agency), labeling any interaction of his target with a non-American as a “foreign intelligence matter,” and then packaging the collected information as a “whistleblower complaint” – and thus escape scrutiny and, perhaps, accountability for circumventing the existing legal prohibitions against investigating Americans?

I hasten to add that doing so would, of course, be utterly unthinkable to the overwhelming majority of CIA employees. And I’m also not saying that the CIA official in this case is a rogue, acted in bad faith, or that his allegations are false.  Rather, the focus in this article is on process: is a precedent being established for unapproved CIA information collections and investigations against Americans?

Are we at risk of validating a technique that would be vulnerable to exploitation in the future?

Should a president (or any American) be able to confront his or her accuser?

President Trump has indicated he believes he ought to be able to confront his accuser.  However, that doesn’t seem to be in the works.  According to the New York Times the CIA official will testify before the House impeachment hearing, but only if his identity is kept secret.

That would seem to be legal as the Sixth Amendment right to confront witnesses against an accused does not apply to Congressional hearings, which are technically not criminal proceedings.  It is also unclear as to the degree the right might exist, if at all, in a Senate impeachment trial.

Nevertheless, confronting accusers is an extremely effective and time-honored way of ferreting out the truth, and one that has long been considered essential to the pursuit of justice.  In the 2004 case of Crawford v Washington the Supreme Court observed that the “right to confront one’s accusers is a concept that dates back to Roman times.”

In tracing the development of the Sixth Amendment right, the Court cited the “great political trials” in England during the 16th and 17th centuries, including “the 1603 trial of Sir Walter Raleigh for treason” where the right was not afforded, and injustice seems to have resulted.

After explaining how cross-examination of a sworn witness allows a fact-finder the opportunity to assess a witness’s demeanor and hence his or her credibility, the Court said that in incorporating the right to confront witnesses as opposed to simply relying on written accounts “the Framers had an eye toward politically charged cases like Raleigh’s—great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.”

Accordingly, here’s another question for you: can an argument be made today that we ought to treat the House impeachment hearings as “politically charged cases” tantamount to the “great state trials” of the past that so concerned the Framers?  If so, should the target of the accusations be entitled to face his accuser?

Again, though the Constitution doesn’t seem to mandate it, in a matter as grave – and as “politically-charged” – as the removal of a President from office, is it not in the interest of our democracy that there be transparency as to who, exactly, is making the accusations?  Isn’t it important to give the public the opportunity to make their own judgement as to his credibility?  And isn’t it particularly critical for a democracy to have transparency when the accuser is an official of the world’s most powerful secret intelligence agency?

Concluding Observations

Protecting the identity of those who make complaints about government officials – whistleblowers if you will – can quite obviously facilitate the lawful and proper operation of government.  Concealing the identity of accusers does not necessarily lead to unjust results in many bona fide whistleblower cases.  At the same time, however, a democracy also needs to be concerned about potential issues that can arise from the activities of those from its secret intelligence organizations whose “official duty” obliges government to give them exceptional powers as well as access to enormous amounts of non-public information.

Here’s what we need to ask: is the current situation so unique and so grave (the possible impeachment of an elected president) that the worthy aim of protecting the identity of a whistleblower must yield so as to ensure the transparency justice so often requires?  What’s at stake here is fundamental to a democracy: specifically, the results of a national election for the highest office may, in effect, be overturned not by the citizen-voters but by a legislative body.  Shouldn’t that require the most meticulous of processes so as to ensure that the right decision be made, and one that deserves the support of the public?

Is there risk to the whistleblower?  Of course.  He will certainly be subject to searching examination and, inevitably, public criticism (and also, it should be said, much adulation and praise).  Although I believe the potential physical peril may be overstated (albeit still extant), there is no question he needs to be kept physically safe, and the government must provide the resources to ensure that.  This is especially so since the Post reports that the “acting director of national intelligence told lawmakers last week the whistleblower had acted in good faith and should be protected.”

But we have to accept that perfect security is not possible, and democracies must sometimes ask its citizens to take risks.  The signers of the Declaration of Independence put it this way: “We Mutually Pledge To Each Other Our Lives, Our Fortunes And Our Sacred Honor.”  Indeed, undertaking the gravest risks in the service of the nation is a burden that sometimes must be accepted, as military cemeteries across the country amply illustrate.  Freedom isn’t free, and no one should expect it to be.

Moreover, shouldn’t we also be concerned that anything less than a fully transparent elucidation of all the facts, will only feed “deep state” conspiracy fears?  Just last year, a Monmouth University poll found “a large bipartisan majority who feel that national policy is being manipulated or directed by a “Deep State” of unelected government officials.”  Given the involvement of an unelected official of America’s premier spy agency, it would seem to be especially important that the impeachment inquiry be seen by most Americans as scrupulously fair, impartial, and as apolitical as possible.  Absent that, the U.S. is dangerously at risk of even greater polarization than already exists.

Keep in mind that despite an avalanche of adverse publicity, as of this writing (Oct 1) fully 48% of likely U.S. voters “approve of President Trump’s job performance.”  Perhaps even more significantly, a Sept 29 CBS Poll found that 45% of Americans didn’t even approve of an impeachment inquiry, and 59% thought Trump’s actions with respect to the Ukraine either were proper (28%) or not proper but legal (31%).  Again, it’s vitally important for the nation that the inquiry proceed properly to avoid exacerbating the divisiveness that’s harming our country.

Even the harshest critic of Trump – and he has earned much of that criticism – ought to be concerned about the precedent being set if a CIA official is permitted to instigate an impeachment inquiry of a president without being subject to the same kind of scrutiny routinely used to test the credibility and biases of any investigator as would so often be the case in even the most mundane civil or criminal  matter.

In considering these issues many people might be blinded by their hostility to Trump and his often impossible-to-justify behavior, but it’s worth remembering that the conduct empowered in this case could someday be turned towards another elected American, and one who is vastly more to the liking of Trump’s many critics. 

In times like these it’s especially important for people to pause and carefully consider the long-term implications and unintended consequences of seemingly well-intended actions.  If we fail to do that, we may inadvertently plant the seeds for a bumper crop of future regret.

Still, as we like to say on Lawfire^®, checks the facts and the law, assess the arguments, and decide for yourself!