CIA GC Draws 'Rule of Law' Parallels Between Agency and Business

Shannon Green

Corporate Counsel

04-13-2012

In a speech examining the importance of intelligence to the multitude of national security issues the U.S. is facing, Central Intelligence Agency general counsel Stephen Preston drew parallels—and cited key differences—between how the CIA and U.S. businesses function under the law. In a speech he gave this week at Harvard Law School titled “CIA and the Rule of Law,” Preston said that “the intel business is booming,” before proceeding to compare the legal work of the agency and that of any regulated business.

Case in point: the killing of Osama bin Laden.

According to his prepared remarks posted on the Lawfare blog, the CIA GC said, “I am sure the role of the lawyers is not the first thought to come to mind when you think of the bin Laden operation.”

But before the mission in Abbottabad, Pakistan was executed, many legal hurdles had to be cleared. Those legal tasks ensured that the U.S. government had the authority to use force—including lethal force—under applicable domestic and international laws and policies.

Prior to the raid, few members of the intelligence community were even made aware of the possibility that America’s most wanted terrorist had been located. So although the endeavor was therefore not heavily lawyered, said Preston, “it was thoroughly lawyered.”

When evaluating whether to take any action, the CIA’s first step is to determine if it has the legal authority. Preston said that unlike a business enterprise, which is free to pursue profits as it sees fit—as long as no existing laws are violated—the agency can’t take any action without an affirmative grant of legal authority.

Next, the agency has to gauge its authority to act with reference to principles of international law. For example, an inherent right of national self-defense is recognized both by customary international law and by the United Nations Charter.

Any CIA action must also be carried out in accordance with international policies and U.S. law—as spelled out in the U.S. Constitution, federal statutes, Executive Orders and presidential directives, and agency regulations.

And like highly regulated businesses, Preston said the CIA is under strict internal and external scrutiny. While it is true that much of what the agency does is shielded by the state secrets privilege, the agency’s actions do not go unchecked.

“While public and judicial scrutiny may be limited in some respects,” said Preston, “it simply does not follow that agency activities are immune from meaningful oversight.”

In fact, congressional oversight of the CIA far exceeds the usual scope of scrutiny allowed for other agencies, he said. During the last Congress, Preston said the CIA made, on average, more than two written submissions to the House and/or Senate, and two in-person appearances per day.

Other reviewing authorities include the National Security Counsel, the Office of the President, the Foreign Intelligence Surveillance Court, the President’s Intelligence Advisory Board, the Intelligence Oversight Board, the Office of the Director of National Intelligence, and the agency’s own independent inspector general. The CIA is also required to self-report possible federal crimes committed by its employees or agents to the Department of Justice.

All of their similarities aside, the operations of businesses and the CIA do have some crucial differences.

“[T]he CIA is not a business enterprise,” said Preston. “It is, of course, a secret intelligence service charged with protecting the United States against foreign adversaries.”

And whereas the success of a business is measured in dollars, he added, the work of the CIA is not. “Too often the measure is taken in lives lost,” he said. “But the measure is also taken in lives saved, which are countless.”