Don’t Hang the Ref

The CIA’s inspector general must be free to do his job.

Michael Hayden. Click image to expand.
CIA Director Michael Hayden

“I didn’t get paid to make legal decisions,” former CIA officer Michael Scheuer told a congressional panel last spring during testimony on unsavory agency practices like extraordinary rendition. “I got paid to protect Americans.” Scheuer has a predilection for this sort of macho straight talk. It’s a sentiment one often hears from those who have had to wage the war on terror firsthand: You suits can quibble about the rules, we spies have to think about results. The division of labor may not be a bad thing. Spy agencies should be as zealous as possible in defending the country, even to the point where they chafe at the constraints placed upon them. Independent oversight bodies should set—and uphold—those constraints. Some measure of tension between the two is not just natural, it’s productive.

But last week, that tension boiled over when CIA director Michael Hayden launched an investigation into his own agency’s inspector general, John Helgerson. Hayden’s move to watch the CIA’s watchdog is deeply misguided—an effort to neutralize one of the few vestiges of meaningful oversight at the agency, and leave the “legal decisions” to the spies themselves. The intelligence scandals of the past six years, and Mike Hayden’s career in particular, demonstrate that this would be a grave mistake.

In Hayden’s defense, nobody likes an inspector general. “He is but one man and must correct many, and therefore he cannot be beloved,” the Martial Laws of 1629, which first established the office in the military, observed. Like internal affairs investigators in movies about crooked cops, federal IG’s are at best ignored and more often loathed by the rank and file. And Helgerson and his staff had been courting particular resentment in recent years. A career agency officer, Helgerson assumed the post in 2002, and his tenure coincided with a period of abuses and controversy—from torture and coercive interrogation of detainees, to extraordinary rendition, to secret “black site” prisons in Europe—like none the agency had experienced since the Watergate era. In 2004, the IG warned that some of the agency’s interrogation techniques might violate the Convention Against Torture. More recently, his staff produced a report on CIA failures leading up to 9/11 (a report that Hayden tried to suppress and George Tenet declared “flat wrong“). Hayden’s inquisition comes just as the office is finishing a major report on rendition.

Distaste for Helgerson ran highest in the agency’s National Clandestine Service (formerly known as the Directorate of Operations)—the front-line human intelligence gatherers who assume identities and run covert operations and assets. For these shadowy professionals, protracted internal investigations are understandably alarming. If a particular practice is authorized by Langley, and approved by the agency’s general counsel, an operator wants to believe that he can proceed without the risk that down the line, a second review by the IG may find that he broke the law. Moreover, being the subject of an internal investigation can freeze an officer’s career prospects, halting any promotion until the investigation is concluded. Helgerson’s investigations sometimes dragged on for years.

Hayden has been credited with restoring some of the morale among the HUMINT ranks, and in this instance, he seems to have taken up their cause. Remember also that Hayden is the new boss at the agency; more than one spook-turned- commentator hints that going after Helgerson might amount to a ham-handed effort to win over the cool kids.

But while morale is unquestionably a crucial issue, let’s not lose sight of what is actually happening here: Helgerson is being upbraided for … doing his job. One senior intelligence official complained to the Washington Post that Helgerson has “a prosecutorial mentality.” But shouldn’t he, when the CIA stands accused of activities that would make Jack Bauer blush and that in some cases violated the law? The protests bring to mind a sharp-elbowed brute I played basketball with in high school, who, when he wasn’t fouling people, always seemed to be grumbling about the ref.

Of course, federal watchdogs are hardly infallible. But the problem lately has not been too much independence, but too little. Consider Howard Krongard, the State Department’s inspector general, who stands accused not of assisting, but of actively thwarting, investigations of fraud and abuse by contractors in Iraq. Or NASA’s IG, Robert “Moose” Cobb, who reportedly used his position “to interfere in the activities conducted by the investigative and audit divisions within his office.” Hayden’s move against Helgerson actually coincided with a new bill, passed overwhelmingly by the House of Representatives, that would bolster the authority and autonomy of federal IGs. (The president is threatening a veto.)

There are established procedures for a CIA director to question his IG without threatening the independence of the office. Hayden could go directly to the White House, or to the President’s Council on Integrity and Efficiency, which oversees federal watchdogs, and which is run, as Spencer Ackerman points out, by a prep-school crony of the president who would have no trouble icing Helgerson. But by opting to keep the investigation internal, Hayden is undermining not just Helgerson but the structural integrity of the inspector general’s office. IGs rely, in their own investigations, on the trust and respect of agency employees. How will this vote of no confidence affect the office’s stature?

More pernicious is the possibility that Hayden’s investigators will access the IG’s files. Employees who alert the inspector general about abuses rely on confidentiality; it allows them to cry foul without jeopardizing their jobs (giving them an important, last-ditch alternative to leaking to the press). If Hayden looks in the files, that promise of confidentiality will no longer be on offer, and the result could have a devastating chilling effect on future internal investigations. But then, it’s hard to escape the conclusion that this kind of chilling effect is precisely what Hayden intends. Fred Hitz, the agency’s IG from 1990 to 1998, called the investigation “a terrible idea,” and told the Los Angeles Times that it looks like Hayden is trying “to call off the dogs.”

To get a sense of what can happen when the dogs are called off, we need look no further than Hayden’s recent career. Before he left the National Security Agency, where he was director, Hayden originally authorized the infamous warrantless wiretapping program. Hayden’s general counsel knew about the program and approved it. And who was his general counsel at the time? Robert Deitz, who followed him to CIA, and whom he just chose to spearhead the investigation of Helgerson. If the NSA’s inspector general had a problem with secretly violating federal law, no one ever heard about it, because the office reported only to Hayden and not to Congress. (Helgerson reports to the CIA director and Congress, a two-master system designed to shield him from undue pressure.)

From Watergate to wiretapping, it seems axiomatic that, left to their own devices, spies will overreach. Stifled by secrecy and fearful of being tarred “soft” on national security, Congress has largely abdicated its role in effectively policing American espionage. Now Hayden is seeking to cow his own IG at a time when the agency—and the country—needs that oversight most. I don’t trust Mike Hayden, or his subordinates in the field, to be the final arbiter on what our spies can do. That’s why Michael Scheuer’s division of labor makes sense: We can ask intelligence officers to play by the rules, but it’s folly to let them write the rules, as well.