Questions about Cheney's CIA targeted killing program.

Questions about Cheney's CIA targeted killing program.

Questions about Cheney's CIA targeted killing program.

The law, lawyers, and the court.
July 15 2009 1:48 PM

The Most Important Questions To Ask About the CIA's Targeted Killing Program

We know Cheney ordered it kept secret. What don't we know?

What have we learned this week about the once-secret CIA plan to target and kill members of al-Qaida? It stemmed from George Bush's secret order in 2001 that allowed the CIA to capture and, if necessary, take out members of the terrorist network. The plan reportedly focused on killing terrorists at close range rather than blowing them up with remote-guided bombs. And former Vice President Dick Cheney told the CIA not to inform Congress about the program.

What don't we know? Much more. As the probing continues into what, precisely, this program was all about, here's a list of the most important outstanding questions. The answers will determine whether this episode fades or turns into the first full-blown intelligence fiasco of the young Obama administration.

DIck Cheney. Click image to expand.
Former Vice President Dick Cheney

1) Under what authority did Dick Cheney keep this program a secret from Congress? CIA Director Leon Panetta reportedly said the program was kept from Congress under orders from the former vice president. How was Cheney allowed to make this call? Nothing in the National Security Act, which requires the executive branch to tell Congress about intelligence activities, authorizes the vice president to determine when lawmakers should be informed. That's the president's job and also the responsibility of the heads of the intelligence agencies. The law is famously murky about when the president or intelligence officials must go to Congress with word of their plans, but nowhere does it say the vice president decides. We know that President Bush gave Cheney extraordinary powers to classify and declassify information. But none of this amended the National Security Act, which focuses on this narrower question of when to brief Congress about classified information. Naturally, we also need to know whether Bush knew of Cheney's decision or whether he authorized it.


2) Why did it take so long for Panetta to find out? What's going on over at the CIA that it took four months to inform the new director about a program that even the daftest political observers could tell was radioactive? Wouldn't Cheney's order to keep it from Congress, given the vice president's reputation for being obsessive about secrecy, have set off alarm bells at the agency? Panetta doesn't have a background in intelligence, but he was a lawmaker, and he understands oversight. Presumably, he spent much of his first days on the job figuring out what Bush-Cheney programs might be lurking on the shelves that his former colleagues in Congress would want to know about. Was he aggressive enough in ferreting them out? Who was in charge of this task for him? Panetta's chief of staff is Jeremy Bash, the former general counsel for the Democrats on the House intelligence committee. Presumably he'd want to know what secrets the agency had been hiding.

3) Who finally brought the program to Panetta's attention? The New York Times reported that the CIA's Counterterrorist Center told Panetta about the killing program. The CTC is an operational unit that focuses on tracking down terrorists and either capturing or eliminating them, and so it makes sense that this unit would have run the on-the-ground killing program. The CTC is staffed by career intelligence officers and employees, so it's almost certain that some members of its staff were working during the previous administration and were aware of the killing program's existence. We need to know what they—and others—knew about the program, in order to determine whether people were actively keeping it a secret from the new administration

4) What did John Brennan know? Brennan, who is President Obama's homeland security and counterterrorism adviser, led the transition team for the intelligence community after the 2008 election. It was former career CIA officer Brennan's job to get an inventory of all the programs and activities in place at the agency. In other words, Brennan was supposed to find out where all the bodies were buried. If Brennan knew about this al-Qaida killing program and didn't tell anyone—and let's be clear, there is no evidence of that—then he has a lot of explaining to do. But if he didn't know about the program, if it was being kept from him and the incoming administration, then someone else needs to step up to the mic. That brings us to the next question …

5) What did Michael Hayden know about this program? The clandestine plan was first conceived soon after the Sept. 11 attacks. Hayden took over the CIA in 2006. Tuesday's New York Times tells us that in the spring of 2008, Hayden "and his top aides were told about one aspect" of some plans that involved setting up paramilitary teams "to hunt down top Qaeda operatives." The one aspect seems rather narrow; it reportedly "involved gathering sensitive information in a foreign country, according to a former senior intelligence official." This operation apparently never got off the ground, but the Times reports that it was part of a series of discussions at the CIA focused on killing al-Qaida operatives. Importantly, the Times notes that "Mr. Hayden ordered that the operation be scaled back and that Congress be notified if the plans became more fully developed." It appears that Hayden made a call not to inform Congress about that operation and set a threshold for when members should be notified. If this paramilitary operation is the program in question—and it sounds an awful lot like it—then the next question is: Did Hayden inform the Obama administration about it as he handed over the reins at the CIA? If not, that might explain why it took so long for Panetta to learn of it. (See Question 2.)

6) What did George Tenet think? It's entirely possible that this killing program was one of many ideas tossed around in brainstorming sessions in the frenzied days after the 9/11 attacks. And it's possible that no one seriously thought that Congress needed to be apprised of half-formulated plans that hadn't blossomed into operations. But Tenet, who was the director of central intelligence from 1997 to 2004 and spent a good chunk of his career working for the Senate oversight committee, would have known as well as anyone whether Congress should have been brought into the loop. Tenet would have understood not just the legal requirements but also the political and cultural expectations in play. This program reportedly lingered for months and years. After the tempo of activity immediately following the attacks of 9/11 slowed, someone had to make a decision about what the threshold for congressional notification would be. If Tenet didn't make that decision (and perhaps Hayden did), then we need to know why. We also need to know whether Tenet agreed with Cheney's order of secrecy.

When to go to Congress, and what to say, is a perennial challenge for the intelligence community. It doesn't help that legislative oversight of the spy agencies has essentially broken down along partisan lines. But the CIA also has a long history of keeping secrets from its overseers or misleading them about intelligence operations. Tenet knows that history. It would be helpful to hear from him now. And the other former Bush officials on this list, too.