All posts by Afsheen John Radsan

Afsheen John Radsan, a former federal prosecutor and a former CIA lawyer, teaches at William Mitchell College of Law in Saint Paul, Minn., where he is the director of the National Security Forum. Besides his work as a corporate lawyer and as a consultant, Professor Radsan served for over eight years in the federal government. He is an expert on legal issues related to national security. His combination of law enforcement experience, intelligence community experience, and Middle Eastern origins makes him unique within the legal academy. He is often quoted by the local and national media.

The Evolution of Law and Policy for CIA Targeted Killing

Just suppose. The Attorney General, lanky as the President, walks into the Oval Office to join a meeting. The top law enforcement officer is slumped down with apparent bad news. He avoids eye contact with the Commander-in-Chief. “Mr. President,” he says looking down at the coffee table, “the ACLU believes our drone program is illegal.” Silence. (The President and the Attorney General both, of course, maintain links to the human rights community, an important part of their political base.) The President’s other advisers fidget and twitch. The Vice President adjusts the
coaster under his drink. Beads of perspiration form on some faces. The Secretary of State and the Secretary of Defense look for the exit; the law is not their thing.

The President is cool. “Could you be more specific,” he says, tapping his finger on a black briefing book.

The Attorney General looks up from the table. “The drone strikes in Pakistan. Remember, the program Leon was not supposed to talk about with the media.”

The President smiles. “Yes, I know that. But which laws are they talking about?”

After an awkward pause, the President, himself a highly sophisticated lawyer, suggests, “Let’s talk this through some more.” The Attorney General agrees. After the lawyer-to-lawyer exchange, the other advisers relax. Maybe the CIA drone strikes are not illegal after all. Or maybe the apparent illegality does not matter that much. The Vice President takes a sip of his drink. And the President asks for tea and coffee to be served. No one wants to leave the room after all. They open their briefing books instead.

This scenario emphasizes a simple point: President Obama, a Harvard Law School graduate, a former teacher of constitutional law at the University of Chicago and a Nobel Peace Laureate, must believe that he has the authority to order the CIA to fire missiles from drones to kill suspected terrorists. Not everyone agrees with him, though.


One Lantern in the Darkest Night: The CIA’s Inspector General

Summing up their history of the statutory Inspector General at the CIA, the authors conclude that “The ‘independent watchdog’ of a statutory IG did not expose major shortcomings that otherwise would have gone unnoticed. Nor did the watchdog play a major role in deterring institutional sloth and excess. In certain cases, however, the IG asserted independence that might not have been possible without Section 403q. Again, the results for the statutory IG may charitably be described as ‘mixed.'”

Sed Quis Custodiet Ipsos Custodes: The CIA’s Office of General Counsel?

After 9/11, two officials at the Central Intelligence Agency (CIA) made decisions that led to major news. In 2002, one CIA official asked the Justice Department’s Office of Legal Counsel (OLC) to clarify how aggressive CIA interrogators could be in questioning al Qaeda operatives held overseas. This request led to the August 2002 memorandum, later leaked, in which John Yoo argued that an interrogator crosses the line into torture only by inflicting pain on a par with organ failure. Yoo further suggested that interrogators would have many defenses, justifications, and excuses if they faced possible criminal charges. One commentator described the advice as that of a “mob lawyer to a mafia don on how to skirt the law and stay out of prison.” To cool the debate about torture, the Bush administration retracted the memorandum and replaced it with another.