Radsan: Breaking the Code: A Call for Candor at the CIA

[sidebar: Mukasey did not ask for a special prosecutor, Congress now has as of yesterday!! I am enamored of the conclusion of the piece below. Way to go!!]

A month before the news broke about the destruction of CIA tapes, I was back in Washington to speak on a panel. After the event, one of my former colleagues came over to discuss something in hushed tones. (“Jay”, let’s call him, used to be the top lawyer at the CIA’s Counterterrorist Center.) He made it clear to me that he disapproved of those who broke the Company’s code of silence. “Be careful,” was his message.

As justification, I told Jay that former officials should enlighten the public about intelligence issues. Then, as a jibe, I said that current officials should do more than say “no comment” about every story. Jay nodded in a way I wishfully interpreted as an acknowledgement. But since then, perhaps because he was involved in the tapes, Jay keeps the code. Undeterred, I offer some tidbits — “unclassified”—that Jay doesn’t want you to know.

The CIA was already under investigation.

Attorney General Michael Mukasey, on January 2, announced a full criminal investigation into the tapes. Before his announcement, the Justice Department (DOJ) and the CIA’s Inspector General (IG) had reviewed the matter for close to a month in a “preliminary inquiry.” But that was not the first time DOJ and the IG had joined forces. According to the press, DOJ/IG have been investigating many other CIA programs.

An investigation that spanned the 9/11 divide was “Peru shootdown.” In April 2001, missionaries traveling in a float plane in Peru were mistaken for drug traffickers and shot from the sky. Two people died. Although Peruvian officers operated the plane that fired the shots, they acted on information from another plane, staffed by CIA contractors.

The joint DOJ/IG investigation into the Peru incident took several years while they determined whether the drug interdiction program had deviated from President Clinton’s original plan. Plus, DOJ/IG investigated whether American officials had made any false statements about the April 2001 shootdown. One irony from Peru is that the investigation was most intense at the same time the White House was assuring the CIA it had nothing to fear from being aggressive after 9/11.

Two years ago, DOJ announced that it had closed the criminal case into Peru. But the IG investigation probably continues. Although our government paid millions to settle with the Peru survivors, many CIA officers still worry about the IG’s final report. They hope this report, due out soon, will not be as tough as the IG’s findings about 9/11, released a few months ago.

In any event, the CIA’s Inspector General, John Helgerson, perhaps learning from the complications on Peru, will not assist DOJ on the criminal investigation of the tapes. This time DOJ will try to do things without him. And time will tell whether a career prosecutor from Connecticut completes the investigation or whether Mukasey succumbs to those who want a special prosecutor.

There once was a lawyer named Muller.

DOJ, of course, is interested in John Rizzo, the CIA’s top lawyer. Rizzo is set to testify before the House Intelligence Committee on January 16. A major question is whether he participated in, or was aware of, the tapes’ destruction in 2005. So far, however, less attention has been paid to Scott Muller, the CIA’s General Counsel from 2002-2004.

Muller, having litigated at Davis Polk before he joined the Agency, viewed his job through the lens of a criminal defense lawyer. Rather than always serve the Agency’s best interests, Muller incorporated the personal agendas of senior officers. For instance, some complained at DOJ — and within the IG — that Muller improperly applied pressure to shut down the Peru investigation. Thus, Muller’s aggressiveness on Peru parallels reports of his aggressiveness, far earlier than 2005, in seeking to destroy the tapes. In all, DOJ should not forget what Muller has done.

Rizzo adds so much irony.

Even though Rizzo was not central in approving the CIA’s interrogation program, he paid the political price. During his confirmation hearing in the summer of 2007, the Senate intelligence committee was dissatisfied that he did not disavow the Justice Department’s 2002 “torture memorandum.” Rizzo, realizing the votes were not there for him, withdrew his nomination.

Now, less than a year after the confirmation debacle, Rizzo is trusted as “Acting” General Counsel to clean up the mess concerning the tapes with DOJ, the IG — and with the oversight committees. For all, Rizzo is both intermediary and a subject of investigation.

At the CIA, so much depends on the nuances. One person’s hypocrisy is another person’s irony. And Jay’s code has become this man’s call for a bit of candor.


John Radsan, associate professor at William Mitchell College of Law, is a former federal prosecutor and a former assistant general counsel at the CIA from 2002-2004

January 15, 2008