Editor’s Note: Douglas London is the author of “The Recruiter: Spying and the Lost Art of American Intelligence.” He teaches at Georgetown University’s School of Foreign Service and is a nonresident scholar at the Middle East Institute. London served in the CIA’s clandestine service as a Russian-speaking senior operations officer for more than 30 years, mostly in the Middle East, South and Central Asia and Africa, including three assignments as a chief of station and as the CIA’s counterterrorism chief for South and Southwest Asia. The views expressed here are his own. He tweets @douglaslondon5. Read more opinion at CNN.
Could a reelected former President Donald J. Trump use the CIA’s unique authorities, capabilities and insulation from public scrutiny to take action against his political enemies?
The answer was “yes” well before Trump’s lawyer argued that he would be immune from prosecution for directing SEAL Team 6 to assassinate a political rival — unless first impeached and convicted by Congress. In fact, it would be even easier for Trump to turn the CIA into his own Praetorian Guard.
Last March, the former president told supporters at a political rally, “I am your warrior. I am your justice. And for those who have been wronged and betrayed: I am your retribution.” What could be better than a powerful and elite secret organization insulated from public scrutiny, whose rules he can rewrite with near impunity to defile the Constitution?
The CIA’s operating guidelines have been primarily set by executive orders which can be changed with the stroke of a pen — and for good reason. As the nation’s first line of defense and collector of last resort, its size and flexibility facilitates innovation and the authority to quickly realign resources.
This structure enabled the CIA to deploy personnel to Afghanistan well ahead of the military after 9/11 and to respond to the 2014 threat posed by the Islamic State. Albeit with less public notoriety, the CIA has been at the forefront of US national efforts to support Ukraine and deter China’s possible invasion of Taiwan.
While the CIA is subject to oversight, neither the Senate nor House can approve or disapprove their activities and at most, can deny funding. Moreover, the president’s communications with the CIA are classified and protected by executive privilege. Although appropriately cleared members of Congress are apprised of presidential findings through a Memorandum of Notification, they are not at liberty to publicly debate or countermand such sensitive covert action programs.
Don’t expect pushback from GOP
There’s also little likelihood Trump’s fellow GOP leaders would push back. Despite the indictments Trump faces for inciting violence on January 6, mishandling classified documents and fraud, his 2024 candidacy has been endorsed by 19 Republican senators as well as the House leadership and 7 governors. (Trump denies wrongdoing.)
Frankly, no foreign threat I ever encountered across four decades as a CIA operations officer frightened me as much as GOP Representative Elise Stefanik, the fourth-ranking member of the House leadership, parroting Trump’s reference to those being prosecuted for beating police officers with fire hydrants and American flags on January 6th — after dragging them down the Capitol steps — as “hostages.”
The CIA offers a wide array of collection, investigative, surveillance, technical and kinetic capabilities that mirror those of the country’s larger defense, diplomatic, security and law enforcement agencies but with flatter management and without the public footprint. And therein lies the temptation for abuse.
As illustrated by the 1970’s Church Committee hearings and by the Senate Select Committee on Intelligence Study of the CIA’s Detention and Interrogation Program, the agency’s capabilities have too often been used to serve a president’s political interests, rather than the nation’s security.
It was not until President Ronald Reagan issued Executive Order 12333 (E.O 12333) in 1981 that a framework was established for the country’s national intelligence efforts to safeguard Americans’ privacy and civil liberties. President George W. Bush revised and reissued the order in 2008 to better align it to the 2004 Intelligence Reform and Terrorist Prevention Act that established the Office of the Director of National Intelligence (DNI).
The revisions expanded privacy rights and the definition of a “United States person,” but more significantly transferred the Director of Central Intelligence’s authorities for setting policy and lanes across the US Intelligence Community to the DNI.
Restraints on spying
E.O. 12333 prohibits the CIA from spying on US persons or even soliciting one’s voluntary cooperation without making its true affiliation and intentions clearly known. That includes both at home and abroad, and covers everything from hacking, bugging, break-ins and shadowing, to use the colloquial terms, or collecting and storing personal information on Americans without higher-level and Justice Department approvals.
Unlike the FBI, CIA officers cannot operate undercover to penetrate domestic organizations, not even those which carry out or advocate violence. And American journalists, clergy, and US Peace Corps personnel are among the prohibited categories from which the CIA can’t recruit, even abroad. Likewise, the agency can’t use such occupations as operational cover given the risk to those in these professions who might be suspected of being CIA.
While the CIA is prohibited from conducting assassinations, American or foreign, the US Justice Department approved America’s targeted killing of al Qaeda terrorist and American citizen Anwar al-Awlaki in 2011 without the benefit of legal due process.
In fact, the White House, under Democratic President Barack Obama, acknowledged in 2015 that the US had killed a total of six other Americans, including one accidentally who was being held hostage, Warren Weinstein. Five other American citizens, including the more notorious Adam Gadahn and Ahmed Farouq, who were both killed in Pakistan while serving in senior al Qaeda positions, were struck incidentally without the benefit of the same Justice Department process afforded al-Awlaki.
Beyond E.O. 12333, there are still more restrictions and guidelines memorialized in internal DNI and DCIA policies and authorities which set the legal requirements, ethical standards and its tradecraft. These policies address everything from interrogation, the use of force, dealing with agents and foreign partners suspected of human rights abuses to information sharing that enables lethal consequences and the duty to warn of potential targets of violence.
As an example, reforms addressing the CIA’s use of “black sites,” renditions and enhanced interrogation were aligned to Executive Order 13491, issued on January 22, 2009, by Obama, requiring compliance with US domestic law, and its international agreements, in its treatment of captives. And the Biden White House walked back Trump-era policies which reportedly liberalized and delegated targeted killing and capture operations outside of conflict zones in its own revised Presidential Policy Memorandum. But all of this is subject to change should the President, the DNI or the DCIA choose — Congressional authorization is not required.
Still, weaponizing the CIA requires enablers who might come from among Trump’s sycophantic followers like former DNI John Ratcliffe, former acting DNI Richard Grenell or former Chief of Staff to the then-Acting Secretary of Defense Kash Patel. It was Patel, more recently, who told former Trump adviser Steven Bannon during a podcast that “We will go out and find the conspirators, not just in government but in the media.”
Toward the end of his administration, Trump directed that Patel be installed as the CIA’s or the FBI’s deputy director until CIA Director Gina Haspel threatened to resign. Her resistance thwarted what the CIA workforce expected to be the former president’s plan to have Patel replace Haspel as acting director in order to execute a “deep state” loyalty purge.
Such a goal would be facilitated by Trump’s plans, should he win another term, to reintroduce an executive order known as Schedule F which would empower him to reclassify some 50,000 or more civil service positions as political appointees whom he can fire and replace at will.
None of this even begins to consider how Trump could use a new term to transform the CIA into a rubber-stamp echo chamber. Trump’s resentment of agencies like the CIA is well known: The former president’s lawyers filed a 68-page discovery motion reflecting plans to defend Trump against charges accusing him of illegally holding onto classified documents after he left office by painting the intelligence community as biased against him.
Besides previously embracing Russian President Vladimir Putin’s word over his intelligence community’s, Trump publicly chided its 2019 Worldwide Threat Assessment, observing that the agencies should “go back to school.”
And how might the CIA workforce respond? The reality is that officers are required to obey lawful orders. Some might follow their conscience and walk, but how many could afford to? Moreover, Trump is not without his supporters at CIA, particularly among the older, White, male circle of senior officers who may feel threatened by the agency’s generational changes and greater focus on diversity, inclusion, and equity.
Still, handcuffing the CIA by turning relevant executive orders into law might not be politically feasible nor would it be in the nation’s best interests. But the real prospects for a president’s abuse of the agency’s unique authorities and capabilities merit an a la carte review of those most applicable to domestic issues, privacy and civil liberties and of how to install further guard rails.
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