- The Washington Times - Sunday, August 23, 2009

We have the media, the Obama administration and members of Congress all using the word “torture” but skipping over the real issue: whether what actually was approved, what actually was reported to Congress or what actually happened was really torture as the word is defined by applicable law.

While belittled by critics, the Justice Department’s Office of Legal Counsel (OLC) addressed the legal issues in a series of memos. OLC determined that the interrogation measures the CIA sought approval to use were not torture if employed consistent with the guidance in the memos.

It’s one thing to argue that “our OLC political appointees disagree with your OLC political appointees” — which is what the debate has been about so far — and another to claim the George W. Bush administration approved torture after Sept. 11, 2001, which it clearly did not. Did some interrogations of terrorist suspects in CIA custody go beyond what was authorized? If so, the interrogators should be prosecuted, just as were a few U.S. soldier interrogators at Abu Ghraib.

Should Congress and the Justice Department investigate? Sure; however, they both must be acutely aware that they have had substantial institutional involvement on the merits of these CIA activities with the approval and oversight of them. This practical realization is necessary because asking who knew what, and when, is a blood political sport in Washington.

This brings us to the “I didn’t know about it” shtick - the way-overused “defense” of some members of Congress who apparently were told long ago about what the CIA was doing. Now they have to claim that they “didn’t know” or “were not told” or “were lied to.”

If you have small children, you are intimately familiar with this specious shrug of responsibility. To the contrary with Congress, two basic requirements keep members up to speed on intelligence activities.

First is the generalized requirement to keep the Congress “fully and currently informed” about what the intelligence community is doing. Beginning with the creation of the House and Senate Intelligence committees in the 1970s, this requirement has been facilitated by the excellent professional relationship between the committee staffs — many of whom are former committee employees — and the respective intelligence agencies with which they liaise daily.

Another part is the budget process itself, when the agencies go into meticulous detail about their programs to get funding for them. Then there is an ongoing formal briefing process for the most sensitive intelligence activities and programs in which the committees are particularly interested. For example, the programs with privacy and civil-liberties aspects; high-tech, research and “high dollar” programs; applications of new technologies; and the more exotic intelligence-collection programs. Finally, the chairman, vice chairman and ranking member of either committee can get briefings on whatever they want whenever they wish — all they need do is ask, and they do.

Second, there’s the very specific requirement to brief the committees on “covert actions,” which are defined as intelligence activities intended to influence political, economic or military conditions abroad, without attribution to the United States. This statutory requirement was added after the Iran-Contra investigations in the 1980s and is a regular and routine process intended to keep the leadership of the committees informed in detail about the most sensitive activities of the CIA, the agency primarily responsible for carrying out covert actions.

Briefing covert actions to the intelligence committees is often met with a lot of collar-pulling. After all, just a handful of members are being told about the most sensitive intelligence activities and are sworn not to disclose them. Also, some exceptionally sensitive covert activities — at the decision of the president — can be briefed to an even more limited group called the “Gang of Eight”: The two leaders from each intelligence committee and the two leaders from both the House and the Senate. What if they disagree with or don’t like an aspect of a particular covert activity they are told about? In the past, they typically have preserved these concerns in writing. It’s the only way to record a legitimate and timely objection.

Finally, a word on “assassination”: Like “torture,” it’s a politically loaded word, but it also has a traditional definition as “murder for political purposes.” Our intelligence agencies have long been prohibited from doing assassinations. However, there are some key technical aspects of this issue that routinely are overlooked by critics and the media in their efforts to render their stories about the CIA more sensational.

First, the leaderships of terrorist organizations routinely are targeted as part of military operations, including operations by elite special-forces units. These military operations typically would not be briefed to the intelligence committees because they are not “intelligence activities” and don’t fit the definition of “covert action.” This is because — while secret to ensure operational success — these operations are not done “without attribution,” as are covert actions. These operations could, however, be briefed by the Defense Department to the armed-services committees under different requirements.

Are the recent reports about purported CIA assassinations a blending or confusion of these two categories of activities? Perhaps. However, the reports could be part of an ongoing bureaucratic effort to redefine assassination in the context of more effective operations against terrorist organizations. As a policy and operational matter, should the CIA be involved with the Defense Department in the proactive targeting of terrorist organization leaderships? Absolutely. Are new policies, lines of responsibility and authorities needed to better enable the Defense Department and the CIA to go after and kill terrorist leaders? Let’s hope the new rules are already in place.

So, how much did House Speaker Nancy Pelosi know, and when did she know it? Well, she was a member of the House Intelligence Committee for 10 years, the longest continuous service of any member in the committee’s history, including two key years (2001-02) as the committee’s ranking Democrat. She has since been the ranking minority member of the House and, most recently, the speaker of the House — all Gang of Eight positions. She was, and is, positioned to know it all — and, just as with your kids, don’t believe anything else.

Daniel Gallington served in senior national-security and intelligence policy positions at the Defense and Justice departments and as bipartisan general counsel to the Senate Intelligence Committee.