The purpose of this piece is to shed some light on the way the intelligence community operates, to describe how legal rules shape some of its most sensitive work, and to offer a perspective on the way the Central Intelligence Agency (CIA or Agency) fits into the debate about interrogation and torture. The debate is not about, and indeed cannot be about, whether our government should conduct torture. The answer to that question is and must be, by law and standards of human decency, no. As recently as March 2005, CIA Director Porter Goss reiterated the Agency’s position that it is bound by the laws banning torture and that the Agency adheres to those laws. But at a level deeper than the denials and the blanket statements, there is a difficulty that cannot be avoided. That difficulty lies not in the abstract form of the question, but in the real, on-the-ground scenarios that develop where interrogations are taking place. What can an interrogator do? When can she use deception, discomfort, fear, fatigue, punishment, physical contact, and similar tactics?
Two innovative federal crimes, 18 U.S.C. §2339A and §2339B, have been frequently charged in prosecutions since September 11, 2001, becoming key elements in the government’s anti-terrorism efforts. Section 2339A makes it a federal crime knowingly to provide material support or resources in preparation for or in carrying out specified crimes of terrorism. Section 2339B prohibits knowingly providing material support to a foreign terrorist organization. These statutes bear some resemblance to criminal liability for complicity, but they are being used like a new kind of conspiracy charge, the familiar “prosecutor’s darling.” Unlike conspiracy, they are framed with a mens rea of knowledge rather than of purpose, and because they are substantive offenses, they can be combined with traditional conspiracy charges. These provisions can be used to impose punishment for conduct remote from the commission of criminal harms, often conduct involving minimal and outwardly non-criminal acts.
In two cases decided on June 28, 2004, the Supreme Court emphatically upheld the rule of law and the right of those being detained as part of the war on terrorism to have access to the courts. In Rasul v. Bush, the Court held that those being detained in Guantánamo Bay, Cuba are entitled to have a habeas corpus petition heard in federal court. In Hamdi v. Rumsfeld, the Justices declared, by an 8-to-1 margin, that an American citizen apprehended in a foreign country and held as an enemy combatant must be accorded due process, including a meaningful factual hearing on his status.