Covert CIA Program Withstands New Furor

Not stopping another attack not only will be a professional failure, he argued, but also "will move the line" again on acceptable legal limits to counterterrorism.

When the CIA wanted new rules for interrogating important terrorism suspects the White House gave the task to a small group of lawyers within the Justice Department's Office of Legal Counsel who believed in an aggressive interpretation of presidential power.

The White House tightened the circle of participants involved in these most sensitive new areas. It initially cut out the State Department's general counsel, most of the judge advocates general of the military services and the Justice Department's criminal division, which traditionally dealt with international terrorism.

"The Bush administration did not seek a broad debate on whether commander-in-chief powers can trump international conventions and domestic statutes in our struggle against terrorism," said Radsan, the former CIA lawyer, who is a professor at William Mitchell College of Law in St. Paul, Minn. "They could have separated the big question from classified details to operations and had an open debate. Instead, an inner circle of lawyers and advisers worked around the dissenters in the administration and one-upped each other with extreme arguments."

At the CIA, the White House allowed the general counsel's job, traditionally filled from outside the CIA by someone who functioned in a sort of oversight role, to be held by John Rizzo, a career CIA lawyer with a fondness for flashy suits and ties who worked for years in the Directorate of Operations, or D.O.

"John Rizzo is a classic D.O. lawyer. He understands the culture, the intelligence business," Radsan said. "He admires the case officers. And they trust him to work out tough issues in the gray with them. He is like a corporate lawyer who knows how to make the deal happen."

These lawyers have written legal justifications for holding suspects picked up outside Afghanistan without a court order, without granting traditional legal rights and without giving them access to the International Committee of the Red Cross.

CIA and Office of Legal Counsel lawyers also determined that it was legal for suspects to be secretly detained in one country and transferred to another for the purposes of interrogation and detention -- a process known as "rendition."

Lawyers involved in the decision making acknowledge the uncharted nature of their work. "I did what I thought the best reading of the law was," one lawyer said. "These lines are not obvious. It was a judgment."

Credit and Blame

One way the White House limited debate over its program was to virtually shut out Congress during the early years. Congress, for its part, raised only weak and sporadic protests. The administration sometimes refused to give the committees charged with overseeing intelligence agencies the details they requested. It also cut the number of members of Congress routinely briefed on these matters, usually to four members -- the chairmen and ranking Democratic members of the House and Senate intelligence panels.

John D. Rockefeller IV (W.Va.), ranking Democrat on the Senate Select Committee on Intelligence, complained in a 2003 letter to Vice President Cheney that his briefing on the NSA eavesdropping was unsatisfactory. "Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse, these activities," he wrote.

Rockefeller made similar complaints about the CIA's refusal to allow the full committee to see the backup material supporting a skeptical report by the CIA inspector general in 2004 on detentions and interrogations that questioned the legal basis for renditions.

Some former CIA officers now worry that the agency alone will be held responsible for actions authorized by Bush and approved by the White House's lawyers.

Attacking the CIA is common when covert programs are exposed and controversial, said Gerald Haines, a former CIA historian who is a scholar in residence at the University of Virginia. "It seems to me the agency is taking the brunt of all the recent criticism."

Duane R. "Dewey" Clarridge, who directed the CIA's covert efforts to support the Nicaraguan contras in the 1980s, said the nature of CIA work overseas is, and should be, risky and sometimes ugly. "You have a spy agency because the spy agency is going to break laws overseas. If you don't want it to do those dastardly things, don't have it. You can have the State Department."

But a former CIA officer said the agency "lost its way" after Sept. 11, rarely refusing or questioning an administration request. The unorthodox measures "have got to be flushed out of the system," the former officer said. "That's how it works in this country."

Researcher Julie Tate contributed to this report.