No Comment — November 11, 2011, 6:17 pm

The Rizzo Investigation

Marc Ambinder and Yochi Dreazen report in the National Journal:

The Justice Department is investigating whether a former top U.S. intelligence official, John Rizzo, improperly disclosed classified information about the CIA’s drone campaign, one of the spy agency’s most secretive and politically sensitive programs.

People familiar with the matter say that the CIA’s general counsel’s office opened the probe in March, shortly after Newsweek published an article in which Rizzo — who had retired in 2009 after serving as the CIA’s acting general counsel — outlined an array of specific details about how CIA officials choose terrorists for drone strikes and which American officials sign off on actually carrying them out.

The CIA’s decision to launch a leak probe targeting a long-time employee who served as its highest legal officer is significant on at least two fronts. First, while the CIA will disclaim this interpretation, the probe should be understood as an acknowledgement of the accuracy of the statements Rizzo made during his interview with Tara McKelvey. McKelvey’s article — Newsweek’s most important national-security reportage of the past year — provided a reasonably detailed description of how the CIA authorizes its drone-strike targets. Rizzo, who candidly referred to the attacks as “murder,” acknowledged that as acting general counsel of the agency, he had vetted strikes before they occurred, approving some and vetoing others based on the cases made by CIA analysts. The decisions did not go through the White House, nor through senior military officials. Harold Koh, Legal Adviser of the Department of State, has argued that U.S. drone-strike policy involves the meticulous observation of international legal standards, including of the laws of war, but readers of the Rizzo interview are unlikely to be persuaded by this claim. (Perhaps the most that can be said of the CIA’s efforts in this regard is that it may have “reached out” for guidance from uniformed lawyers with the U.S. Central Command in the past.)

The second significant aspect of the Rizzo investigation relates to the Agency’s motives: it is difficult to believe that concerns about the disclosure of secrets damaging to national security are behind the inquiry. Nearly everything Rizzo said in the Newsweek interview has been said before by senior officials from the Bush and Obama administrations, albeit usually off the record. The only difference is that Rizzo’s statements were on the record. Why should this difference cause him to be investigated? Might it be that the CIA wishes to avoid public discussion about the drone campaign, and in particular to avoid discussion of the dominant role the Agency is playing?

Studies have consistently shown that foreigners — including, for example, the people of Pakistan — are better-informed about the drone campaigns than Americans. This finding is directly related to U.S. government secrecy on the issue. In America, the drone war is being treated as “covert action,” with newspapers reporting the campaign based primarily upon what they hear from hushed anonymous voices. And what they hear tends to be reports that strikes have hit important terrorist targets, and that no innocent civilians were killed. Indeed, President Obama’s top counterterrorism adviser, John O. Brennan, claimed in June that “there hasn’t been a single collateral death” in the drone attacks. In the meantime, papers in Pakistan have been going to strike sites and reporting what they see. They have counted the deaths of at least 385 civilians — more than 160 children among them — thus far. Rizzo told McKelvey that “the agency was very punctilious about…minimiz[ing] collateral damage, especially women and children,” but although the record shows undeniable improvement on this front, the death count remains troubling, and raises serious questions about how the CIA applies the “collateral damage” rule, not to mention about the veracity of its post-strike assessments.

The question also remains why the CIA is handling drone strikes rather than the uniformed military. The CIA’s control of this state-of-the-art weapons system is a historical policy anomaly. Following the ground rules laid out by the National Security Act of 1947, responsibility for such weapons systems should lie with the Pentagon, not with an intelligence-gathering agency that is neither uniformed nor trained in the laws of war. As New York University professor Philip Alston has pointed out, the military’s standards for targeting are tightly linked to the American understanding of its obligations under the laws of war. Still more importantly, the military has clear accountability practices, including investigations and disciplinary measures.

The CIA, by contrast, has emerged since 9/11 as a poster child for the unaccountable use of force. And now it has launched the Rizzo inquiry, for one likely purpose: to chill public discussion in hopes of holding on to its unlawful drone assets.

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