We have a chapter titled “Risky Business” in Shadow Warfare; we use it to present and discuss a variety of problems which affect individuals actually engaged in covert/clandestine action. One of those problem areas involves the legal risks of clandestine agency employees. Those risks range the gamut, some of them are relatively minor and spring from using aliases in domestic activities with insufficiently backstopped identities. Its one thing to have the right “pocket litter” but using the wrong name at the wrong time can lead to legal problems.
Things can get far more serious though, especially if an employee accepts an order which turns out to be illegal. Given that some directives are pretty vague to begin with, and that headquarters officers often don’t fully understand (or sometimes avoid) the details of their team leader’s field operations, matters can get quite sticky. And if course headquarters is more than willing to disassociate itself from questionable actions which become public. Its hard to defend yourself when all the orders were verbal and there is no paper trail. Of course things are even worse when the illegality of the orders goes all the way back to the Commander in Chief and the CIC’s order is based in a written opinion from the administration’s legal staff within the Justice Department. I’ve noted the point that for practical purposes those opinions do tend to stand until legally challenged in court or addressed by new Congressional legislation. Fighting illegal orders can be a time consuming and lengthy process.
America has a long tradition of expecting military personnel to decline illegal orders and the right of challenge is dealt with in the Uniform Code of Military Justice. There are protocols for rejecting illegal orders and UCMJ training is required for all service people. That works reasonably well for some things, less for others. To reject an order based on a personal view of its constitutionally leads into the legal quagmire outlined above. Its unclear to what extent there is similar protection for clandestine agency employees but based on remarks in published statements by former employees, even senior officers, it appears that in some instances its far from satisfactory.
A good example of dealing with questionable orders can be found in the book The Interrogator / An Education by former CIA officer Glen Carle. The book reflects Carle’s difficulties in dealing with what would appear to be illegal orders involving rendition and interrogation, orders which clearly violated the basic Agency training and instruction he had originally been given but which came about due to new directives issued by the George W. Bush administration following the attacks of 9/11. I would highly recommend Carle’s book for a variety of reasons including the fact that it represents a successful case study in how an individual can become an effective “whistle blower” without suffering extreme legal consequences.
I wish I could offer a solution to such legal quandaries, I’d even like to talk to Mr. Carle about it but unfortunately my previous attempts to get him to elaborate on his identification of David Phillips as Maurice Bishop may have poisoned the well a bit in that regard. Of course now that Anthony Veciana had publicly stated the same identification of Phillips as Bishop it should not be a big deal. What I would recommend is that Mr. Carle follow in the footsteps of David Phillips following retirement but in a bit of a different fashion.
I would suggest that there needs to be a contemporary association for former clandestine service officers that could perform mentoring for officers who have legal issues with their orders. Of course since the agency would frown on direct contact so advice would have to be strictly “hands off”. But perhaps a web site simply offering advice and examples of how to and how not to get the word out, strictly in accordance with Agency legal guidelines might be in order (and yes I know the CIA would put it on the NSA target list, sigh). Mr. Carle did it with his book so it can be done and no doubt the relevant agency polices could be referenced in order to make it all strictly “legal”. Perhaps the Agency itself might make a new initiative in cleaning up its own house and addressing its image – after all, with stories such as told in the link above, recruiting ethical employees might be getting more challenging.
Of course further Congressional legislative action to protect ethical employees of all agencies would be a good thing as well. As I’ve mentioned, whining about any given administration is pointless when the fix is really getting legislation and legal code that works on an ongoing basis. But strangely, even among the legislators that you would most to expect to be concerned about protecting personal rights I’ve seen no statements and no bills being offered – if I missed it, somebody let me know.