Bush-era intelligence issues trip up Obama

Barely six months old, the Obama administration faces a political problem caused by how the CIA handled a secret counter-terrorism program. Though President Obama has insisted he wants to look forward and push an ambitious domestic agenda, a series of intelligence-related issues has the administration and Congress looking back at the George W. Bush years. Here is a primer of what we know.

What is going on?

CIA Director Leon E. Panetta briefed congressional committees last month about a program to put elite paramilitary teams into areas such as Pakistan where they could kill or capture top Al Qaeda operatives. The program was kept secret from Congress for more than seven years at the request of former Vice President Dick Cheney, according to members of Congress and former intelligence officials. The program was never operational and even seems to have been dormant at various points. When word of the program’s existence recently surfaced, Panetta canceled it and told Congress.

The CIA has been reluctant to publicly discuss the operation, but a spokesman has given a glimpse:

“The program [Panetta] killed was never fully operational and never took a single terrorist off the battlefield,” said George Little, a CIA spokesman. “We’ve had a string of successes against Al Qaeda and other terrorist groups, and that program didn’t contribute to any of them.”

If the program is dead, what is the problem?

There are two areas of concern, legal and political.

What are the legal issues?

President Ford in 1976 banned the CIA from carrying out assassinations. The order came after revelations that the CIA tried and failed to assassinate leaders such as Fidel Castro during the late 1960s. Based on that, there are questions that any CIA assassination program is legal. Some say that killing U.S. foes, such as enemy combatants, is not illegal.

The second problem is that the agency kept the program secret from Congress, which oversees the agency’s activities, and did so at the request of Cheney.

Did the CIA violate the law?

Defenders of the CIA say no, while some Democratic lawmakers say yes.

The canceled program was authorized by a 2001 presidential finding, say the agency’s defenders, who note the frenzied atmosphere in the wake of the Sept. 11, 2001, terrorist attacks on the World Trade Center and the Pentagon. The Bush administration made no secret of its eagerness to find Al Qaeda leaders and publicly said the United States would not rest until top leaders were caught or killed. The war on terrorism, which weakened civil rights in general, is also used to explain the CIA program.

That the CIA program failed to reach operational status is also used by defenders to justify that Congress was not told.

But that argument has failed to mollify some prominent Democrats such as Sen. Russell Feingold of Wisconsin, a member of the Intelligence Committee. He has said the agency broke the law by not telling congressional overseers. Democrats in the House of Representatives say they want to see documents related to the program and the decision. The House Intelligence Committee announced today that it will investigate whether any was law broken by not telling Congress.

What are the political issues?

The latest disclosure comes at a time of increased anger by Democrats at the Bush administration over the CIA specifically, the wars in Iraq and Afghanistan in general and the use of torture against detainees as part of the war on terrorism. Cheney, identified as an architect of those policies, has been a special target for liberals and civil libertarians.

Those are separate issues but together they have shaped the debate in Congress as it presses for more information on intelligence issues.

What other CIA-related issues are there?

In May, House Speaker Nancy Pelosi accused the CIA of failing to inform her in 2002 that it had begun using the interrogation technique known as waterboarding on terrorism suspects.

Pelosi said she was briefed about the practice, which involves forcing water into a suspect’s air passages so that he has the sensation of drowning. But she insisted she was not told it was actually being used on suspects like Abu Zubaydah, who was subjected to waterboarding 83 times.

Pelosi’s accusation about the deceitful nature of the CIA sparked a firestorm. The agency vehemently denied her claims. House Democrats called for an investigation of whether torture was used and of which Bush officials authorized what forms of interrogation.

Republicans demanded Pelosi apologize and accused Democrats of being soft in fighting terrorism. Cheney came out of the shadows and took a very public role in attacking Democrats as being weak in protecting the United States.

Is there more to Cheney’s role?

Reports that the CIA was told to keep its paramilitary program a secret from Congress began to surface a day after an inspector general’s report on another Cheney step to keep something secret. According to that report, Cheney’s office restricted knowledge of a warrantless eavesdropping program to a small group of officials. The government report became part of the Democrats’ anger at the former vice president’s role in intelligence-gathering.

What does this mean for the Obama administration?

The administration has to formulate a response to a series of charges: that the CIA launched an undisclosed paramilitary program; that former Bush officials may have been involved in illegal torture; and that the former vice president tried to keep programs secret from authorities and the public. This comes as Republicans increase their defense of the former administration and further their attack on the Obama administration on security issues.

Has there been action by the Obama administration?

Attorney General Eric Holder is considering whether to appoint a special prosecutor to investigate the allegations of torture, according to widely quoted anonymous Justice Department officials. Whether that probe goes to Cheney is unknown.

What is Obama’s position?

White House spokesman Robert Gibbs summarized Obama’s position July 13. Gibbs was asked about Holder “reportedly leaning toward having a criminal prosecutor look into whether U.S. interrogators tortured terrorist suspects.”

“Our efforts are better focused looking forward than looking back,” Gibbs told reporters. “The president, and I think the attorney general, all agree that anyone who followed the law, that was acting in the good faith of the guidance that they were provided within the four corners of the law will not and should not be prosecuted. Obviously, if some laws were broken, that falls into the dominion of the attorney general.”

How does Obama’s position compare to other legal standards?

In his speeches, Obama has argued that anyone in the CIA who did something he was told was legal should not be charged. This is a broader definition that the United States used in pursuing war crimes after World War II, according to some scholars.

Politically, the Obama administration has made it clear it wants to press on with its agenda, including the economy and healthcare, rather than look for villains during the Bush years.

What of the current issue that the CIA failed to inform Congress of its paramilitary program?

“The president believes that Congress should always be briefed fully and in a timely manner in accordance with the law.” Gibbs said.

Asked if the president was briefed on the CIA program, Gibbs replied: “I’m not going to get into any of that.”

michael.muskal@latimes.com