04/22/2011 06:57 pm ET Updated Jun 22, 2011

The CIA and Proxy Detention

U.S. officials now admit that the CIA relies on proxy detention in lieu of the Bush-era secret prison regime. Congressmen are wringing their hands, but for the wrong reasons.

I am stunned to find myself agreeing with even a syllable uttered by Georgia Senator Saxby Chambliss (R), but apparently neither of us are big fans of proxy detention. Here's Saxby in the Los Angeles Times:

'"It is a shame that our administration has made the decision to defer to others to pursue the detention and interrogation of our enemies," said Sen. Saxby Chambliss of Georgia, ranking Republican on the Senate Intelligence Committee.'

The senator has the right idea, but for the wrong reasons. His beef seems to be that U.S. proxies might not give the CIA access, or produce the same quality of intelligence that U.S. agents would otherwise glean (as he so charmingly puts it, 'Now we'll have to rely on a foreign government to grant us access to this terrorist to obtain vital intelligence, if we're lucky.') I think the CIA is making these deals for exactly the reason UK agencies have long done: better to hide behind the curtain and let the locals do the softening up if there is any whiff of accountability around the corner.

That's the real story of this article, though the LA Times make you work to find it. If you believed the headline writers -- 'CIA has slashed its terrorism interrogation role' -- you'd think the CIA's lonely operatives were grounded in Langley, all dressed up with nowhere to go. Indeed, an anonymous source in the intelligence apparatus offers flatly that the CIA is just 'out of the detention and interrogation business.'

Well. That depends on what you think the 'business' is. What's interesting about the article is that several officials weigh in, with surprising candor, about the favored policy du jour: detention and interrogation by and through proxies.

U.S. officials say they expect the CIA will be given access to intelligence gleaned from Indonesia's interrogations of Patek [the al Qaeda suspect who is the focus of the article] and may even be allowed to sit in and provide guidance, given the close ties between U.S. and Indonesian counter-terrorism officials.

This is why I don't buy that the U.S. can't access most proxy detainees it wants to. It seems the agents can pass questions, sit in, provide "guidance," whatever that means. This all sounds very familiar to us in Britain, where we see MI5 agents having used exactly this scenario as a fig leaf for complicity in torture.

Gen. (Ret) Pervez Musharraf was (again, surprisingly) candid about this in a recent BBC interview. Asked whether the UK had opposed the torture of terrorism suspects in Pakistani custody, he denied it -- indeed, he said the UK condoned whatever the Pakistanis did to extract information from their prisoners.

So what's all the fuss in the Senate about? The T-word never appears in the article. And yet, aside from the feeble complaint about access, a sinister idea is lurking between the lines of everyone's objections:

But [working in tandem with a local intelligence outfit] is not the same as controlling the questioning, critics say. "Having access to someone in someone else's custody is never the same as setting the conditions of their interrogation," said a congressional aide who is briefed on intelligence issues but who was not authorized to speak publicly.

Which way does that cut -- that the prisoner will be tortured, or that he won't be tortured enough? We all saw exactly what happened when the CIA "set the conditions" of interrogation. By its own account, the reason the CIA has fallen back to this technique is that a) the worst of the abusive techniques it used have been taken off the table by presidential order, and b) fear of prosecution has had a chilling effect on CIA interrogators. (One could be forgiven for thinking that a 'chill' was precisely what they needed.)

This is a real problem with proxy detention. Many U.S. client states, and in particular their spooks, have richly-earned reputations for medieval torture. What the article misses is that this is also the point of the proxy detention exercise: making techniques available that U.S. agents know are unlawful.

The other problem with proxy detention, from both my and Saxby Chambliss' perspective, is that it's messy. While I think the officials in this article are over-egging complaints about U.S. control, of course proxy operations inevitably mean some chaos.

This is exactly what happened to Sharif Mobley, our client who was seized by proxy when he tried to go home with his family from Yemen last year. Instead of arresting him at the Embassy -- as U.S. agents could easily have done -- the U.S. elected to have him seized and roughed up by Yemenis. (The CIA submitted a Glomar response to Mobley's FOIA request. The U.S. interrogators who threatened him with prison rape said they came from FBI and DOD, but showed no badges.)

Sharif was also shot in the proxy detention operation, despite the fact that he was totally unarmed. I may never know whether the U.S. wanted him shot or not, but let's give them some credit and assume not. This is the other problem with proxy detention: our proxies may go farther than even the CIA would countenance.

Chambliss and others seem to be fretting that the puppeteer's control over the puppet may not always be certain. But if that is the complaint, it seems to me the answer is simple: Stop having abusive counterterror units of dubious competence do your dirty work for you. Make a lawful arrest. Get your allies to extradite. Play by the rules.