Mitchell on Law
Spring 2007WILLIAM MITCHELL COLLEGE OF LAW MAGAZINE SAINT PAUL | MINNESOTA
BEHIND CLOSED DOORS:
Lawyers and the CIA
In the wake of unflattering news involving the CIA, the agency’s lawyers have come under fire.
By Richard Broderick
PDF includes additional feature
A. John Radsan builds
National Security Forum at Mitchell
For most of us, the CIA conjures up images of spymasters and intrigue, of wheels within wheels and enigmas. Peering into the inner workings of what is, after all, a large, bureaucratic government agency can be as difficult as deciphering the plot of Syriana, the George Clooney movie inspired, it so happens, by a book written by a former CIA officer.
In the popular imagination, the CIA is about the last place where one might expect to find lawyers thick on the ground. And yet lawyers have been an integral part of the CIA since its inception back in the late 1940s. Like their counterparts in the agency’s intelligence gathering operations, CIA lawyers tend to avoid the limelight. They are forbidden to discuss most of what they do with outsiders (and even with most other CIA personnel) while employed by the agency. Even after leaving its service, they still must clear almost anything they write about their CIA experiences.
It’s just part of the life — and the mystique. As William Mitchell Associate Professor of Law A. John Radsan observes, “There are lots of mentions in the press of lawyers at the Justice Department and the Pentagon. I think the lawyers at the CIA are happy that they’re not subject to a lot of attention.” Radsan should know. Before joining the William Mitchell faculty in 2004, he was assistant general counsel at the CIA working in the agency’s Litigation Division.
Since leaving the agency, Radsan has emerged as one of a small number of former CIA lawyers to write critically and analytically about the role attorneys play at America’s premier spy agency. His recent article “Sed Quis Custodiet Ipsos Custodes: The CIA’s Office of General Counsel?,” which will be printed in the Journal of National Security Law & Policy, examines the role of the CIA lawyer, covering many of the issues in this article, while also suggesting ways the CIA could foster better attorneys and a better legal environment.
While Radsan supports the overall mission of the agency, he raises trenchant questions about the proper balance CIA lawyers, especially in the upper levels of the CIA’s Office of the General Counsel, should strike when weighing the legal pros and cons of agency policies: Should they be watchdogs, lapdogs, or something in between? In the wake of several years of unflattering news about or involving the CIA, from the legality of interrogation techniques to extraordinary renditions, there is renewed interest in not just what lawyers do at the CIA but how they should comport themselves within an organization operating on the outer limit of public oversight and accountability.
Currently, the CIA employs about 100 attorneys. Some, like Radsan, who served as an assistant U.S. attorney before joining the agency, are experienced lawyers. The agency also operates its CIA Legal Honors Program, hiring freshly minted attorneys right out of law schools. As one might expect, there is a strict pecking order. Most attorneys begin as attorney-advisers. From there, they can work their way up to assistant general counsel, and finally to associate general counsel, a division head who reports directly to the general counsel. Legal work in the agency is doled out among five divisions: Administrative Law and Ethics, Litigation, Intelligence Support, Contracts Law, and Operations. But no matter what division an attorney is assigned to, all the lawyers at the CIA work in the Office of the General Counsel, whose director is a political appointee. In theory, a CIA attorney has a chance to work in several different divisions, but only if he or she stays on for more than a few years. Many lawyers, like Radsan, leave fairly quickly; he joined the agency in 2002.
“I enjoyed my time [at the CIA], though the aura and mystique evaporated rapidly,” he says. “When I left, it was with the feeling that I had been essentially a government bureaucrat.” As a federal prosecutor, Radsan recalls, his job was to investigate and prosecute people who violated the law. In contrast, at the CIA, he spent much of his time acting as a liaison with the Justice Department on civil and criminal cases that might touch upon the CIA. “My job was to protect and keep information from being revealed,” he says. “In the end, I realized that those who find satisfaction working in the general counsel’s office tend to find it in the overall mission of the agency rather than in any individual cases they have handled,” he says.
For some CIA lawyers, the agency’s system of “compartmentalization,” in which information, including legal reasoning, can generally only be shared on a need-to-know basis, is itself a source of difficulty, being so at odds with the collegial give-and-take that’s an integral part of the law. In the absence of collaboration, some question whether attorneys can actually perform their duties to the best of their ability. If there have been questionable legal judgements made by CIA attorneys in the past few years, it may very well be a result of this isolation more than anything else.
“When you argue a brief in court, you find out whether it’s any good or not,” says Radsan. “If you are working on a brief at the Department of Justice no one tells you not to consult with other members of the department. If you teach at a law school or work at a law firm or submit an article to a journal, you are constantly consulting with colleagues, getting feedback and advice.”
But opinions rendered within the general counsel’s office are not similarly tested. Even when reviewed by lawyers from the National Security Council or the White House, the attorneys in question tend to be a self-selected group, members of a team who identify — perhaps overly so — with the goals of the institutions they serve.“Many of us,” Radsan says, “were cheerleaders for case officers at the agency the way corporate lawyers are cheerleaders for business leaders doing their deals.”
Of course, if a business deal goes sour and the legal advice offered by a corporate lawyer is unsound, sooner rather than later, the public gets to know about it. Can the same be said for the CIA? Not necessarily. And therein lies the unresolvable tension for lawyers working for a secret agency putatively serving the interests of an open society.