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ACLU: If We Ran the CIA...

Alex Abdo,
Former Senior Staff Attorney,
ACLU Speech, Privacy, and Technology Project
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November 15, 2011

In what surely came as news to both venerable institutions, Michele Bachmann announced on Saturday night that the ACLU is “running the CIA.” In a campaign full of absurd moments, this one managed to stand out, and it got us thinking:

What would the ACLU do if we did run the CIA?

First and foremost, we’d stop suing ourselves! We would stop filing lawsuits on behalf of victims of the CIA’s programs of extraordinary rendition and abusive interrogation. We would stop arguing that the CIA’s use of drones to kill suspected terrorists far from any battlefield should be reviewed by federal courts. And we would stop demanding the release of still-secret CIA documents about waterboarding, the “black sites,” and the use of drones.

Of course, we wouldn’t really end these lawsuits, but we would change the policies that we’ve sued over, because each of those policies undermines the rule of law, taints the reputation of our country, and creates a dangerous precedent for future administrations and other countries around the world.

Here’s how we would change a few of those policies:

We would publicly acknowledge that the CIA’s experiment with the so-called “enhanced interrogation techniques” (including waterboarding) was illegal, immoral, and ineffective.

We would also publicly acknowledge the victims of the CIA’s torture and mistreatment and not stand in the way of their lawsuits. Some of those men are now free, including innocent victims of mistaken identity. Others are still imprisoned and accused of monstrous crimes. Even in the case of the latter, official acknowledgment of mistreatment is profoundly important. We are a nation of laws, strengthened by our commitment to our ideals. We deserve leadership courageous enough to abide by those ideals when they are most imperiled and to confess error when errors are made.

If the ACLU ran the CIA, we would take the agency out of the business of killing individuals (including U.S. citizens) far from any battlefield.

Except in the narrowest circumstances, the extrajudicial killing of an individual far from any battlefield is illegal under domestic and international law. Moreover, the danger in empowering a covert agency (as opposed to the military) to engage in targeted killing is that the CIA operates largely in secret, with little meaningful oversight or accountability. To this day, the CIA refuses to acknowledge what the entire world already knows: that it uses drones to kill suspected terrorists. This official denial has allowed the agency to shut down lawsuits about its use of drones, including a challenge to its authority to engage in targeted killing and a suit seeking the legal justification for the program.

Finally, we would allow meaningful public scrutiny of the CIA’s practices through increased transparency.

Secrecy is sometimes necessary, but evidence of torture and the CIA’s legal justification for its targeted killing program should not be kept secret. Keeping this information secret erodes public confidence, impedes democratic oversight, and allows abuse to go undetected and unpunished.

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If these policies were adopted anytime soon, then there might be something to the notion that the ACLU is running the CIA. Don’t hold your breath.