Excerpt from “CRIMES AND SILENCE, The CIA’s Criminal Acts and the Media’s Silence” by John Kelly, published in Into The Buzzsaw - Leading Journalists Expose the Myth of a Free Press, Kristina Borjesson, editor (New York: Prometheus Books, 2002). Endnotes [enclosed in square braces] follow the given number. Link to the google books copy of the complete essay is here.
John Kelly is first author with Phillip Wearne of Tainting Evidence: Inside the Scandals at the FBI Crime Lab, which was nominated for a Pulitzer Prize. It is the first, and to date, the only, contemporaneous critical account of the FBI to be published by a mainstream publisher. Kelly is also an independent investigative producer. He is the former editor and senior writer for the National Reporter, a publication specializing in reporting on the CIA. Kelly has served as associate producer and chief investigator for many documentaries, including CIA, a six-part series produced by the BBC, and The Bureau, a Channel 4 (England)/WETA-TV (PBS) documentary about the FBI. Kelly is also a former research scientist and chairman of the Intelligence Study Group of the American Political Science Association.
As we speak, so to speak, or read, the CIA is committing hundreds of extremely serious crimes around the globe in our name and at our expense with nothing to show for it. This is not according to Sy Hersh—the investigative reporter who uncovered the My Lai Massacre—or Amnesty International. This is according to the CIA itself, as reported by the House Intelligence Committee. “The CS (Clandestine Service of the CIA), is the only part of the IC (Intelligence Community), indeed of the government, where hundreds of employees on a daily basis are directed to break extremely serious laws in countries around the world,” reads a committee staff study. “A safe estimate is that several hundred times every day (easily 100,000 times a year), DO (Directorate of Operations) officers engage in highly illegal activities.”1[House Permanent Select Committee on Intelligence, IC 21: The Intelligence Community in the 21st Century (Washington, D.C.: GPO, 9 April 1996), 205. (page 220 in PDF)]
One would think the Cold War never ended.
The report was the first official admission and definition of CIA covert operations as crimes which the committee, without explanation, equated with essential national security operations. In other words, the national security of the United States requires that more than one hundred thousand extremely serious crimes be committed every year. The committee expressed no legal or ethical concerns about these crimes. On the contrary, CIA offenders were portrayed as potential, hapless victims of sinister foreign authorities opposed to their lawbreaking. “A typical 28 year-old, GS-11 case officer,” reads the study, “has numerous opportunities every week, by poor tradecraft or inattention, to embarrass his country and President and get agents imprisoned or executed.”2[Ibid.]
One would think that one hundred thousand extremely serious crimes a year would be a major story no matter what the CIA’s rationale was. At the very least, pundits could have pondered and asked in the press how these crimes serve U.S. national security, particularly since the committee did not bother to do so. Nor did the committee explain the impact the crimes might have on peaceful, diplomatic relations or examine their moral and legal ramifications. In fact, the committee indicated that it did not matter that laws were broken because they were laws of other countries. To claim that our national security requires one hundred thousand crimes a year is a rather stark assertion and operating principle, particularly in a world that increasingly believes the United States acts as if there is one law for America and another for the rest of the world. Beyond that, it would seem that these crimes might actually threaten U.S. national security by making enemies. What nation is going to roll over, play dead, and accept that breaking its laws is axiomatic with U.S. national security?
There was not a single word about any of this even in the alternative press, which was particularly disturbing in light of the nature of the CIA crimes. The report suggested that the CIA’s crimes include murder and that “the targets of the CS [Clandestine Service] are increasingly international and transnational and a global presence is increasingly crucial to attack those targets.”3[Ibid., p. 203 (page 218 in PDF)] In other words, we are not simply talking about stealing secrets. We are talking about the CIA committing crimes against humanity with de facto impunity and congressional sanctioning.
Other government documents, including CIA reports, show that the CIA’s crimes include terrorism, assassination, torture, and systematic violations of human rights. The documents also show that these crimes are part and parcel of deliberate CIA policy (the staff report notes that CIA personnel are “directed” to commit crimes). For instance, an investigation by the president’s Intelligence Oversight Board (IOB) conducted in 1996—the same year that the committee staff report was completed—found that in Guatemala “several CIA assets were credibly alleged to have ordered, planned, or participated in serious human rights violations such as assassinations, extra-judicial execution, torture, or kidnapping while they were assets—and that the CIA was contemporaneously aware of many of the allegations.”4[Intelligence Oversight Board Report on the Guatemalan Review, 28 June 1996, Anthony S. Harrington, Chairman. (search on “Allegations of human rights abuse by assets”)]
Also according to the IOB,. . . .
Among the most serious examples of credible allegations against a then-active CIA asset, were those involving an asset who was the subject of allegations that in multiple instances he ordered and planned assassinations of political opponents and extra-judicial killings of criminals, as well as other less specific allegations of unlawful activities. Although some of these allegations were from sources of undetermined or suspect reliability, one was from a source considered credible by the [CIA] station at the time. Another asset was alleged to have planned or to have had prior knowledge of multiple separate assassinations or assassination attempts before and during his asset relationship. A third asset has been alleged to have participated in assassination, extra-judicial killing, and kidnapping during and before his time as an asset.5[Ibid.]
The House Intelligence Committee’s only concern regarding these brutal CIA informants and other CIA offenders was that they might be arrested and prosecuted. The committee did not advise the CIA to cease or even limit its lawlessness. In fact, it said that if the CIA stopped its criminal activities, “the taxpayer would be better off without a CS [Clandestine Service].”11[Cf. supra, no. 1, p. 205 (page 221 in PDF)] It explained neither this assertion nor how crimes protect national security. In response to the committee’s concern, the Senate Intelligence Committee proposed a bill that would immunize CIA offenders who violate treaties and international agreements while following orders. This is the Nazi rationale, plain and simple. The bill passed both houses of Congress and was signed into law by President Bill Clinton on December 27, 2000.
The law is Section 308 of the Intelligence Authorization Act for Fiscal Year 2001. It provides that, “No Federal law enacted on or after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2001 that implements a treaty or other international agreement shall be construed as making unlawful an otherwise lawful and authorized intelligence activity of the United States Government or its employees, or any other person to the extent such other person is carrying out such activity on behalf of, and at the direction of, the United States, unless such Federal law specifically addresses such intelligence activity.”12[Public Law 106-567, 106th Congress, 114 Stat. 2843 (27 December 2000), Sec 308, Applicability to Lawful United States Intelligence Activities of Federal Laws Implementing International Treaties and Agreements.]
One has to stand back and take a deep breath on that one. Taken literally, it means that the Constitution does not apply to the CIA or any U.S. intelligence personnel, including lowly agent-assassins. Why? Because the Constitution provides that all treaties are the supreme law of the land. Not just the law, but the supreme law —and no exemptions.
While Section 308 applies to future agreements, if recent history is any indication, the CIA will apply it broadly and retroactively. This would mean exempting itself from all international law. The tragic consequence of such CIA license was seen in the April 2000 shootdown of a plane carrying American missionaries over Peru. The shootdown resulted in the deaths of Veronica Bowers and her seven-month-old daughter, and serious wounds to the pilot. In 1994, in violation of international law, Congress passed a law allowing the CIA to interdict civilian planes suspected as drug carriers and providing immunity from all liability, even for “mistakes.” The shootdown in Peru was a CIA-controlled operation. The Senate Intelligence Committee eventually blamed the CIA for it, but there were no repercussions or prosecutions.13[Alan Sipress and Karen DeYoung, “CIA Failed to Identify Plane Downed in Peru,” Washington Post, 24 April 2001, pp. Al, A15.]
While Section 308 applies to treaties and international agreements, it is clear from the record that it covers CIA violations of the laws of other countries as well. According to a report by the Federation of American Scientists, “A congressional staffer said the new provision (S308) was urgently needed, given that the CIA habitually engages in criminal activity abroad.”14[Steven Aftergood, “Secrecy and Government Bulletin,” Federation of American Scientists, 84, June 2000.] Also an explanation that the intelligence committees provided as to how other countries cannot apply the principle of Section 308 indicates that it covers crimes other than treaty violations. “It (Section 308) is also not meant to suggest,” wrote the committees, “that a person violating the laws of the United States may claim any authorization from a foreign government as justification for a violation of a U.S. law, or as a defense in a prosecution for such violations.”15[House Permanent Select Committee on Intelligence, Intelligence Authorization Act for Fiscal Year 2001, Conference Report, 106th Congress, 2d Session, Report 106-969 (Washington, D.C., GPO, 11 October 2000), 45.] What’s good for the goose, is not good for the gander.
No one is above the law. No one has the right to exempt anyone from the law. Yet the Senate Intelligence Committee, in creating Section 308, claimed on May 4, 2000, that some laws do not apply to the CIA.16[Senate Select Committee on Intelligence, Authorizing Appropriations for Fiscal Year 2001 for the Intelligence Activities of the United States Government and Central Intelligence Agency Retirement and Disability System and for other Purposes, 106th Congress, 2d Session, Report 106-969 (Washington, D.C.: GPO, 4 May 2000), 27.] This claim parroted former CIA General Counsel Stanley Sporkin’s 1987 testimony that some laws “don’t have application to the U.S. Government.”17[Joint Hearings before the House Select Committee to Investigate Covert Arms Transactions with Iran and the Senate Select Committee on Secret Military Assistance to Iran and the Nicaraguan Opposition, Iran-Contra Investigation, 100th Congress, 1st Session, Senate Report No. 100-216, House Report No. 100-433, Testimony of Stanley Sporkin and Presentation by W. Neil Eggleston, June 24, 1987 (Washington, D.C.: GPO, 1988).] In other words, the CIA is above the law, and Section 308 was simply turning this fact into an explicit law so that CIA officers, according to the committee, “will not be burdened by the uncertainty that laws never intended to apply to their activities could be so interpreted.”18[Cf. supra, no. 16, p. 27.]
Again, there was not a peep from the media about any of this even though such a story would not have affected corporate sponsorship or profits. I talked about it with Vernon Loeb, who covers the CIA for the Washington Post. He agreed that Section 308 was quite disturbing, as was the fact that the intelligence committees held no hearings about the bill. But Loeb wrote nothing about it despite doing several articles about the Intelligence Authorization Act.
Apparently, the intelligence committees felt that de facto impunity for committing one hundred thousand crimes a year along with de jure impunity for violating treaties just were not enough ammunition for the CIA to do its job protecting national security. So at the same time they were pushing through Section 308, they called for the lifting of all restrictions on hiring and deploying a category of informants commonly known as “unsavory characters,” even though these informants carry out assassinations and terrorism for the CIA around the world. The committees recommended that the “aggressive recruitment” of “terrorist informants who have human rights violations in their background” be “one of the highest priorities.” “Unquestionably,” added the committees, “ a robust and effective intelligence effort will, from time to time, require U.S. interaction with extremely dangerous and truly unsavory characters.”19[Cf. supra, no. 15, p. 41.] As usual, the committees did not explain or prove this assertion. Even if it is true, it does not provide a legal or moral justification for hiring human rights violators.