April 17, 2012
Despite its “essential” cloak of secrecy, the Central Intelligence Agency is committed to the rule of law, CIA general counsel Stephen W. Preston ’83 said in a speech at Harvard Law School on Tuesday, April 12, hosted by the HLS American Constitution Society.
“Just as ours is a nation of laws, the CIA is an institution of laws and the rule of law is integral to agency operation,” he said.
Furthermore, he pointed out, this commitment is not merely a unilateral agency claim. In fact, he said, the CIA is heavily monitored and regulated by a broad array of agency overseers including the President, the National Security Council, the House and Senate intelligence oversight committees, the Foreign Intelligence Surveillance Court, the President’s Intelligence Advisory Board, the office of the Director of National Intelligence, the agency’s own statutorily independent inspector general, and the Department of Justice.
While public and judicial scrutiny of CIA activities are often limited, Preston said that the rule of law is integral to agency operations because “all intelligence activities of the agency must be properly authorized pursuant to, and must be conducted in accordance with, the full body of national security law that has been put in place over the six-plus decades since the creation of the CIA.”
While the CIA is committed to the rule of law, he said the agency is oftentimes dealing with enemies who possess “only contempt for the law.” The agency’s ongoing intelligence-gathering task today is a formidable one and he said that the number of national-security issues facing the country as perhaps greater than ever before: the threat of terrorist attack in the U.S., war in Afghanistan, “complex relations” in the India-Pakistan conflict, challenges presented by Iran and North Korea, the volatility in the Middle East, violence associated with drug trafficking in this hemisphere.
In explaining how the CIA adheres to and applies law to specific covert actions that may include the use of lethal force, Preston said the agency follows a legal “matrix” to guide its actions. First, he said, the agency would confirm that the contemplated action is authorized by the President and his constitutional power to protect the country from attack. Second, the action must be sanctioned by international law as being justified under inherent right of self-defense. Third, the CIA would make sure that the action complies with U.S. law. Fourth, the agency would seek to implement the action in a manner consistent with the four basic principles of the law governing the use of force: necessity, distinction, proportionality, and humanity.
A perfect example of how the CIA follows these rules, he said, was the operation against Osama bin Laden.
“Finding bin Laden was truly a triumph of intelligence,” he said, describing an effort that took nine years and culminated in “difficult and momentous Presidential decision-making” to authorize the May 2, 2011 raid that led to the killing of bin Laden.
He described the legal decision-making behind the venture as “thoroughly lawyered.”
“By the time the force was launched, the U.S. government had determined with confidence that there was clear and ample authority for the use of force, including lethal force, under U.S. and international law and that the operation would be conducted in complete accordance with applicable U.S. and international legal restrictions and principles.”
Preston said he is proud of the CIA because, he said, the agency’s efforts have saved countless lives.
“I am deeply grateful for what the good men and women who are in the CIA do every day—literally, the sacrifices they make—to keep you and me and our families safe and secure.”
Read the full text of Preston’s remarks.
Dan Klaidman in Lawfare on Preston’s speech.