In yesterday's hearing before the Senate Select Intelligence Committee, Director of Central Intelligence Mike Hayden admitted to using contractors in the CIA's secret prisons, the so-called black sites, an issue that was first raised last summer on The Spy Who Billed Me. From yesterday's exchange:
FEINSTEIN: I'd like to ask this question: Who carries out these [enhanced interrogation] techniques?
Are they government employees or contractors?
HAYDEN: At our facilities during this, we have a mix of both
government employees and contractors. Everything is done under, as
we've talked before, ma'am, under my authority and the authority of
But the people at the locations are frequently a mix of both --
we call them blue badgers and green badgers.
FEINSTEIN: And where do you use only contractors?
HAYDEN: I'm not aware of any facility in which there were only
contractors. And this came up...
FEINSTEIN: Any facility anywhere in the world?
HAYDEN: Oh, I mean, I'm talking about our detention facilities.
I want to make something very clear, because I don't think it was
quite crystal clear in the discussion you had with Attorney General
Today Senator Feinstein has asked Attorney General Muskey whether the use of contractors in coercive interrogation techniques (i.e. enhanced interrogation techniques) is legal. Specifically, Senator Feinstein asked:
Does the Department of Justice agree that such interrogations are an inherently governmental activity?
What are the Department’s views on the legality of using contractors to perform interrogations involving so-called “Enhanced Interrogation Techniques”?
And what are the Department’s views on whether contractors are protected by the provisions of the Detainee Treatment Act that protect U.S. Government personnel from retroactive liability for using officially authorized interrogation techniques?
Whether or not interrogation with enhanced techniques is an "inherently governmental activity" is an excellent question and we all know that inherently governmental activities at the CIA have been handed over to green badgers to such an extent that the Agency is no longer able to perform them. Or as D/CIA Hayden put it, "In many instances, the individual best suited for the task may be a contractor.”
An important dimension embedded in this question is whether these inherently governmental functions have been handed over to private individuals or corporations. Senator Feinstein missed this fine point when quizzing D/CIA Hayden. It's a critical distinction that the Senator needs to understand, that CIA contractors, "green badgers," come in two flavors, namely corporate and individual, the latter is referred to as an “IC” for Independent Contractor. The corporate green badgers work for a company under contact with the CIA. IC are directly contracted by the Agency. (Rare exceptions to these two distinct types do exist--I do know of one case of a "double green" who is a SpecTal green badger at the Agency half time and the other half time he's contracted directly to the Agency as an IC.)
The Agency has a long history of directly hiring its alumni and other specialized experts individually as ICs, even in very sensitive areas, to make up for staffing shortfalls. The real shift since 9/11 has been the rise of corporate or industrial contractors who now dominate the Directorate of Intelligence and the National Clandestine Service to such extents that they could not function without them.
This seems to be what Hayden was explaining:
HAYDEN: This is not where we would turn to Firm X, Y or Z, and say, This is what we would like you to
accomplish. Go achieve that for us and come back when you're done. That is not what this is.
This is a governmental activity under governmental direction and
control, in which the participants may be both government employees
and contractors, but it's not outsourced.
FEINSTEIN: I understand that.
HAYDEN: OK. Good.
FEINSTEIN: Is not the person that carries out the actual
interrogation, not the doctor or the psychologist or supervisor or
anybody else, but the person that carries out the actual
interrogation a contractor?
HAYDEN: Again, there are times when the individuals involved are
contractors, and there are times when the individuals involved have
been government employees. It's been a mix, ma'am.
The interesting questions about the black sites that Senator Feinstein missed involve the extent of corporate involvement. Senator Feinstein needs to ask the D/CIA:
Are the contractors involved in the enhanced interrogation techniques industrial or individual?
Are industrial contractors involved in the facilities management of the black sites?
Are industrial contractors involved in black site security and detainee custody?
Have industrial contractors conducted renditions to black sites? Has their involvement included providing security for the operation and physical handling of the detainee?
And the big question, which companies have performed these services? (Hint: Rounding up the usual suspects will not help much this time.)
When and if these questions are finally asked and answered, it's then time to probe a little deeper and see if outsourcing the black sites is really a good idea for the US taxpayer. Then perhaps Senator Feinstein will begin wondering just how cost effective firm fixed-price facilities management contracts can be if the contracts are based on a large surge capacity, but the companies are now only holding a handful of detainees in the sites. By my napkin math, that would mean the CIA is paying millions for unused "surge" capacity, capacity that's likely to exist largely on paper.
The answer to these questions will be very interesting and I am confident they will raise greater questions of accountability, particularly as the public and Congress become aware of the extent of corporate involvement in the covert War on Terror as well as the covert side of the war in Iraq. The question should be called about how far contractors should be involved in our government's dirty work, particularly activities that many believe are skirting the edge of the Constitution.
Unfortunately, it's an election year, which means that if the larger questions are actually posed, they are likely to become highly politicized. Not all corporate involvement is bad. Some of the corporations that are integral in the CIA's blackest work are doing an excellent job for reasonable profits given the high risk they assume. Personally, I worry more about the health of the Agency over the long term since it has lost the capacity to perform critical intelligence functions, let alone the ability to train the next generation of public servants to do so.