Media outlets have argued that the United States has had an "intelligence failure", decrying the intelligence community for failing to warn the American people of the September 11 attacks on the World Trade Center in New York and on the Pentagon in Virginia. In addition, there is constant clamor that the Central Intelligence Agency (CIA) has been unwisely stifled since the Church Committee hearings of 1975-76 (1) and the resultant executive orders of Presidents Ford, Carter, and Reagan that sought to govern the conduct of intelligence activities. (2) There is a cry to unleash the CIA from its perceived legal and policy restrictions and permit it to fight the terrorist threat facing the United States on terms that will succeed against this pernicious force. Some of this impetus comes from a rash of recent studies such as the report of the bipartisan National Commission on Terrorism (NCT), which urged the Director of Central Intelligence (DCI) to modify the Agency's current guidelines restricting the recruitment of agents with spotty human fights records, when applied to terrorist informants, with the assertion that "one cannot prowl the back streets of states where terrorist incidents occur and recruit only nice people." (3)
Have the CIA and other intelligence community entities been unwisely constrained in their abilities to pursue the terrorist target by outmoded policies dating from the Cold War? This Article will examine four potential modifications to such policies. One possible change is to loosen restraints on the CIA in the recruitment of so-called "dirty assets". A second is to grant domestic law enforcement powers to the CIA to better pursue the terrorist target. Third, the government could repeal the prohibition in Executive Order 12,333 of assassination in peacetime. Finally, impediments could be removed that currently prevent the use of agents in special categories such as journalists, clerics, and academics, if the need is great and cooperation is voluntary. Each possibility will be addressed in turn.
The theme underlying this analysis will be one of balancing. Our need to gather better intelligence about threats posed to the United States and the international community by transnational terrorist groups must be weighed against the constraints imposed by current United States law and practice, the U.S. Constitution, and our status as a constitutional democracy.
I. RECRUITMENT OF "DIRTY ASSETS"
To some degree, the argument over the use of unsavory assets is misleading. By definition, spies are liars, law-breakers, and traitors. They may not be violating U.S. law in supplying CIA spymasters with intelligence information about their own country's defenses or political decision-making, but they are surely violating the laws of the country that they are betraying. John Le Carre wrote with much accuracy when he crafted Alec Leamas' reply to his girlfriend's complaint about using a villain as an agent of East German intelligence: "What do you think spies are: priests, saints and martyrs? They're a squalid procession of vain fools, traitors too, yes; pansies, sadists and drunkards, people who play cowboys and Indians to brighten their rotten lives. Do you think they sit like monks in London, balancing the rights and wrongs?" (4)
Guidelines were established in 1995 that directed CIA case officers in the field to balance human rights and other criminal violations committed by their agents against the positive intelligence supplied or likely to be supplied by these agents. The unintended intersection of several different global and domestic developments after the 1991 collapse of the Soviet Union has prompted confusion over these guidelines and their implementation.
At the end of the Cold War, the then-Deputy Director of Operations (DDO) at the CIA, Richard Stolz, observed that the Directorate probably had more reporting agents on its payroll than it needed to deal with the new post-Soviet world. …