The Ghost of John Yoo
The Intelligence Community has a brand crisis. Here’s how they can fix it.
The world is in a frenzy over revelations this past week about the suggestion of a relationship between tech companies and US government agencies for the purpose of spying on millions of people without regard to specific offenses. A major debate is ensuing over the role of the state and its rights to invade the privacy of American citizens and individuals around the world.But the intelligence community has a serious problem when it comes to advancing its side of the debate — wounds to its brand that have festered since Operation Iraqi Freedom.
The U.S. intelligence community is naturally on the defensive after the leaks of one Edward Snowden to the Guardian. Angry about the serious potential impacts of those leaks members of the IC are going as public as they can to refute the claims of this former defense contractor. Ironically, many of the most compelling arguments that could provide context around the issue will be impossible because to do so would mean to jeopardize classified information even further. To people that are outraged by these revelations, that will sound like just another infuriating government cop-out, but that will not make it any less of a reality. We can — and should — discuss programs are kept from public view and why, but in the mean time, most people at intelligence agencies will be unable to share what they know. You will have to take them at their word — and that is the real issue here.
The immediate firestorm around the limited revelations of this single whistleblower shows a widespread skepticism about the government’s claims around its clandestine intelligence operations. This is by and large healthy — the United States constitution is based around the idea of checks and balances, inherent mistrust of individual desires, and the public is supposed to demand evidence from those who would claim secret powers over their fellow citizens. Yet another layer of this public mistrust is the result of failures by the intelligence community itself over the past twelve years — failures exacerbated since the arrival of the Obama Administration.
The intelligence community has done nothing to atone for the gross failures of competence and ethics committed before and during the Iraq War — all under the brand name of “intelligence.” The community continues to operate as if its credibility was not gravely damaged by the Bush Administration. Moreover, the Obama administration has failed to ensure some form of accountability under the rule of law once he took power. It continues to assert that its secret programs should be accepted by the public without question because of supposed integrity that the Community itself has neglected to safeguard.
Looking back before 2001, the public might have believed that America’s intelligence agencies were highly competent and only focused on legitimate threats to Americans themselves. After all, we had come through the Cold War without a nuclear exchange, and sustained public relations efforts made the CIA and FBI synonymous with cool and powerful — not creepy and abusive. And back before the year 2000, very few outside of the Beltway might understand the role or NSA, NRO or NIMA.
The events of 2001 itself are not the roots of today’s discontent. As horrible as the attacks of September 11th were, there was relatively little outcry against the intelligence community itself. Yes, you could connect the dots in retrospect, but as we say up in hockey country, sometimes one slips by the goalie.
The events of 2002 are another matter. After a stream of whistleblowers, commissions, indictments and investigative documentaries, it is clear that the Bush Administration distorted the very notion of intelligence in order to bring about a war of adventure which had been in the planning phases since prior to 9/11.
The offenses committed in the framing of Iraq as an existential threat are now well known: yellowcake forgeries, Valerie Plame, “Curveball,” the Potemkin intelligence agency that was Doug Feith’s Office of Special Plans, Dick Cheney’s preposterous innuendo about al-Qaeda’s Mohammad Atta in Prague with Iraqi agents, and “We don’t want the smoking gun to be a mushroom cloud.”
We learned of Chief of Staff Andrew Card’s assertion that the Iraq War needed to be sold like a new product, with marketing beginning in September and not the vacation months of July or August. The scandalous abuses of power seemed to have no end, and all of them were presented to the American people under the guise of “intelligence.” The brand equity of intelligence — the notion of secret information collected in the service of superior decisions — was used and abused to manufacture America’s consent to a policy that had been long decided before intelligence assets were brought to bear. The results are plain to see.
Yet the damage to the brand of intelligence was not complete. As it became clear that Iraq did not possess stockpiles of WMDs capable of threatening the US homeland, it seemed that the failure of intelligence had reached its zenith. Sadly, more shocking revelations were to come out in April 2004, as 60 Minutes II and The New Yorker began to uncover the prisoner abuse going on at Abu Ghraib, Baghram and other sites. The pictures would become seared into the global consciousness, and new questions arose immediately as to who authorized this behavior and what its goal could possibly be — aside from denigrating the humanity of those we had just conquered.
What came next was speciously attributed to “intelligence.” John Yoo and Jay Bybee were discovered to have been the authors of what is now known as the notorious “Torture Memos,” legal memorandums produced at the behest of President George W. Bush to claim that the “enhanced interrogation techniques” which America had previous considered torture could be used “legally” against captives in the new global war on terror. In America’s supposed search for “intelligence,” its agents in the field committed acts described by Major General Antonio Taguba as “torture, abuse, rape and every indecency.” Americans became conversant in terms like “waterboarding,” “sleep deprivation,” and “stress positions” — techniques that were previously known mostly to pilots trained for survival if they were shot down in countries that had no respect for human rights. Meanwhile, government officials such as Dick Cheney referred to waterboarding as “a dunk in the water.”
When Barack Obama was elected in 2008, many people expected that he might close this ignominious chapter in American history by exposing wrong-doing and applying the rule of law. One might have thought that malefactors could see prison time. Instead, the administration declared that it intended to look forward and not back — ignoring the fact that all criminal cases look backward by definition. This is not to say that the Obama administration has not applied the law around issues of intelligence — on the contrary. It’s just that it reserves its vigor for leakers of information, not makers of policy.
Today, Dick Cheney is a multi-millionaire living out his days on his luxurious compound in coastal Maryland. Condoleeza Rice is a professor at Stanford. Doug Feith is the Director of the Center for National Security Strategies at the Hudson Institute in Washington, DC. Jay Bybee is a federal judge on the Ninth Circuit, with chambers currently in Las Vegas. John Yoo continues to teach law at the University of California-Berkeley, and his essays are widely read in the Wall Street Journal as he takes the Obama administration to task for executive overreach, of all things.
The United States’ intelligence community wishes to base the defenses of its new and questionable policies on its inherent integrity. Meanwhile, it has done nothing to repudiate the worst offenders in the history of intelligence. This rogues gallery of failed leaders remains untouched. The authors of incompetent legal reasoning have not been disbarred, and they roam the land lecturing us on national security after allowing the creation of a torture regime. Dick Cheney and his confederates unilaterally perverted the very mission of intelligence to borrow credibility for their corrupt and disasterous plan to invade Iraq — an operation that lacked any competent form of future plans for reconstruction, on top of it all.
The intelligence community fears that the public tends to find individual whistleblowers credible instead of its gigantic, lavishly-funded, increasingly secretive agencies. It continues to fruitlessly base its explanations on the notion of inherent credibility and trust. We are told that there is no program that threatens civil liberties, that there is no more to the story — and also that any form of leak is inherently bad. How do Congress and various agency chiefs substantiate their claims? We just have to trust them. Given their mission, that may be their only option — but this does not obviate their responsibility to earn that trust, and in this case regain it.
If the intelligence community intends to answer inflammatory charges like the ones we have heard this week by simply asking for the world’s confidence, then its brand must be repaired. From the Obama administration on down, the federal government of the United States needs to assure its citizens — and the people of the world — that the intelligence community does not bear the shame of Yoo, Bybee, Cheney and the rest. If it wants us to perceive their mission as true to the values of the constitution, then it could start by coming forth and repudiating, once and for all, those who proved that the community can be led tragically astray from those values.
It is not too late.
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