Homeland Season 3: Carrie, Call Your Lawyer
While CIA headquarters still smolders from the terrorist attack that concluded Season 2 of Homeland, details about Season 3 already have begun to leak. Stung by criticism that Season 2 devolved into the theater of the absurd, the show's writers reportedly are now committed to "keeping it real." Details remain sketchy, but sources indicate that the new season will feature a classic Washington feeding frenzy to find out how the devastating attack was perpetrated and to cast blame, though not in that order.
Episode 1 reportedly will begin with Congress's establishment of a bipartisan, 9/11-style Commission. The Commission initially will focus on the immediate causes of the "unprecedented intelligence failure" that led to the attack on CIA headquarters, but the scope of its investigation will quickly expand to include the CIA's operations within the United States and, specifically, its "handling" of U.S. Marine Sergeant (and later U.S. Representative) Nicholas Brody. Then things will get ugly.
Charter? What Charter?
The Commission will determine that the CIA grossly and repeatedly exceeded its legal authority to conduct domestic operations. Indeed, the Commission will find that the CIA completely inverted the legal architecture for counterterrorism within the United States.
Homeland viewers will learn that, with limited exceptions, the CIA's legal mandate is to collect and analyze foreign intelligence, and to operate outside of the United States in furtherance of that mandate. The FBI -- operating as both a domestic intelligence and law enforcement agency -- is the lead federal agency for investigating and preventing acts of terrorism within the United States. The CIA shares with the FBI intelligence information it has collected regarding terrorism threats to the homeland, participates in the interagency analysis of domestic terrorism threats, and is a member of the FBI-led National Joint Terrorism Task Force. FBI representatives are detailed to the CIA's Counterterrorism Center at CIA Headquarters, and CIA officials have been seconded to the FBI.
The legislation establishing the CIA, however, expressly specifies that the CIA "shall have no police, subpoena, or law enforcement powers or internal security functions." The Agency therefore has no legal authority to arrest or detain individuals within the United States. It certainly does not maintain or operate a domestic paramilitary "SWAT" force to hunt down and liquidate terrorism suspects in the United States. Nor does the Agency have authority to enter into immunity or plea agreements with terrorism suspects.
The CIA does have legal authority to recruit foreign officials, business executives, and students in the United States to work on the Agency's behalf when they return to their home countries, and to conduct debriefings in the United States of U.S. business executives who have traveled or worked overseas. But a Presidential Executive Order generally prohibits the CIA from engaging in counterterrorism operations within the United States, including the use of investigative and collection techniques such as electronic surveillance, physical searches, and physical surveillance of U.S. persons in the United States.
The CIA can request electronic surveillance, for counterterrorism purposes, of individuals inside the United States, but it must operate through the FBI, which, in turn, ordinarily must then obtain a warrant from a federal judge under the Foreign Intelligence Surveillance Act. Even in that instance, the FBI would have the lead in any corresponding counterterrorism investigation, and any CIA involvement would be ancillary.
Investigative Free-for-All
According to bootleg scripts for the upcoming season, the White House will express its strong preference that all investigative activity be centralized under the umbrella of the Commission. Consequently, other investigative bodies will, naturally, insist on doing their own thing.
The Inspector General at the CIA will launch a far-reaching internal investigation, concentrating on how senior Agency officials managed to quietly shred the CIA's legal charter. Numerous officials will be placed on prolonged administrative leave, while others will elect to take early retirement until they return to work for more money as consultants to the Agency. The IG will acknowledge, however, that mere violations of the Agency's charter, standing alone, do not violate any criminal laws.
The Defense Criminal Investigative Service, the investigative arm of the Inspector General at the Department of Defense, will initiate an inquiry into how Rep. Brody was able to bring his personal cell phone into a sensitive compartmented information facility ("SCIF," in Washington parlance) at the Pentagon, where he proceeded to incur heinous roaming charges by texting Abu Nazir in Lebanon.
The Bureau of Prisons will commence an inquiry into how Saul Berenson managed to bring a picnic buffet into a high-security prison to serve al-Qaeda operative Aileen Morgan, but didn't bring enough food for everyone.
Even the House Ethics Committee will awaken from its slumber and dysfunction. In a quizzical action belied by Congress's rock-bottom standing in public polls, the Committee will find that Rep. Brody's status as a member of al-Qaeda brought "discredit upon the House," thereby violating the House Code of Official Conduct.
Criminal Exposure
As Season 3 unfolds, CIA officials will be especially anguished by a criminal investigation launched by the Department of Justice. Working their way up the organizational chain, federal prosecutors will first pluck "low-hanging fruit" by confronting "Virgil," Carrie Mathison's off-the-books surveillance handyman. Vigil will quickly fold like a cheap suit, agreeing to a sealed plea agreement with prosecutors in which he admits his complicity with Carrie in the warrantless audio and video surveillance of Brody's home.
Under the cooperation provisions of his plea agreement, Virgil will tell authorities not only about Carrie's role in the unlawful electronic surveillance scheme, but also about her extensive home "petting zoo" of classified documents concerning the Agency's pursuit of Abu Nazir. In exchange for pleading guilty, cooperating, and accepting full responsibility for his actions, the government will allow Virgil to keep his beloved minivan.
Carrie now wishes she had accompanied Brody across the border into Canada. Based on the information provided by Virgil, Carrie will face prosecution for conspiracy regarding the illegal electronic surveillance of the Brody home. (She is also the lead defendant in a civil action for damages brought by Jessica Brody, Rep. Brody's estranged wife.) If convicted, Carrie faces a statutory maximum of five years in prison. Carrie also confronts charges for the unlawful removal from CIA headquarters of classified materials. If convicted of that charge, she faces a maximum statutory sentence of three years. Worse, however, is in store for Carrie regarding her role in the abduction and detention of Rep. Brody: a conviction for kidnapping a Member of Congress carries a potential life sentence.
Peter Quinn, the mysterious black-ops guy, also will not emerge unscathed. Quinn will be lucky to evade prosecution for the torture of Rep. Brody during Brody's interrogation at an undisclosed CIA location, as the statutory prohibition against torture applies only to acts committed outside of the United States. But for stabbing Brody during his interrogation, Quinn faces up to 10 years in prison for assaulting a Member of Congress with a dangerous weapon. (There is no exception for stabbing a Member of Congress who moonlights as an al-Qaeda operative.) Based on information supplied by Saul Berenson, prosecutors also will investigate Quinn for conspiracy to assassinate a Member of Congress, a crime which carries a potential life sentence.
And then there is Saul. Ever the survivor, Saul will cut his losses, agree to take early retirement, and cooperate with prosecutors against his former best friend and confidant Carrie. And that's not the only "singing" that Saul will do. In one of Washington's most remarkable metamorphoses, Saul will re-invent himself as a Broadway song-and-dance man, starring as Tevye in an acclaimed revival of "Fiddler on the Roof."
But chin up, Carrie. The Attorney General, wary of prosecuting CIA officials who a jury would likely regard as national security heroes, will privately express misgivings to the White House about seeking indictments. Behind the scenes, the new leadership team at the CIA also will be fearful that a public trial could result in the disclosure of sensitive intelligence information. And thus, rumor has it that in the cliffhanger season finale, 'twill be Christmas pardons for everyone.
This post and statements attributed therein are for the purposes of satire.