02/06/2009 05:12 am ET Updated May 25, 2011

Putting The Law Back Into Intelligence

To receive The Progress Report in your email inbox everyday, click here.

Yesterday, press reports indicated that President-elect Obama had decided on his choices to lead the intelligence community, choosing President Clinton's former White House chief of staff Leon Panetta as CIA Director and retired admiral Dennis Blair as Director of National Intelligence. Obama is also expected to choose Indiana law professor Dawn Johnsen as Assistant Attorney General for the Office of Legal Counsel (OLC). After eight years of lawlessness and ever-expanding executive power that have tarnished the intelligence community, these picks are indicative of Obama's intent to work within the rule of law in fighting terrorism, sending "an unequivocal message that controversial administration policies approving harsh interrogations, waterboarding and extraordinary renditions...and warrantless wiretapping are over." Salon's Glenn Greenwald remarked that Johnsen is a "true expert on executive power and, specifically, the role and obligation of the OLC in restricting presidential decisions to their lawful scope." Similarly, neither Panetta nor Blair is "tainted by associations with Bush administration policies, in large part because they both come from outside the intelligence world," noted the Associated Press.

The Bush touch:

Initially, reports indicated that Obama would pick former CIA official John Brennan to head the agency. But Brennan withdrew his name from consideration after several progressive bloggers raised concerns that he had supported Bush's interrogation policies while at the CIA. Brennan had also supported immunity for telecommunications companies involved in Bush's illegal spying program. After the progressive backlash over Brennan, the Wall Street Journal reported that Obama was "moving more slowly on his intelligence picks in an attempt to find experienced officials who aren't associated with the Bush administration's controversial interrogation policies." Then, last month, the press hinted that Obama "might ask CIA Director Mike Hayden to stay on for a while." Keeping with Bush administration policy, Hayden has refused to condemn waterboarding as torture and has dismissed "torture" as a "legal term." "We cloud the debate when, when we throw the word torture out there, I think, in a far too casual way," he said in March 2008. In 2007, after CIA Inspector General John Helgerson warned that some C.I.A.-approved interrogations seemed to "constitute cruel, inhuman and degrading treatment," Hayden ordered an inquiry into Helgerson's office, focusing on complaints that Helgerson was on "a crusade against those who have participated in controversial detention programs."

A Clean break:

Panetta represents a stark departure from the Bush administration's intelligence professionals who were involved or closely associated with Bush's torture policies. Elisa Massimino, executive director of Human Rights First, said it is important that the new CIA director be someone "who recognizes that torture is illegal, immoral, dangerous and counterproductive." Indeed, Panetta has frequently criticized the administration's torture record. "Torture is illegal, immoral, dangerous and counterproductive. And yet, the president is using fear to trump the law," he said in March 2008, offering support of legislation compelling the CIA to comply with the Army Field Manual's interrogation practices. Answering critics who say they would rather have a more seasoned "intelligence professional" at the CIA's helm," former 9/11 Commissioner Tim Roemer remarked, "I think he does bring a knowledge of the CIA and good national security experience from both his time on the Hill and the Iraq Study Group...and as chief of staff to the president where you're immersed in it on an hourly basis."

Intelligence Within The Law :

One of the most consequential -- but generally unheard of -- offices in the federal government is the Justice Department's Office of Legal Counsel. Under Bush, the reputation of the OLC has been stained by "torture memos" written by Jay Bybee and John Yoo. After clashing with Vice President Cheney's office on torture, former OLC head Jack Goldsmith said the memos had "no foundation" in any "source of law". Recently, President Bush tried to install torture apologist Steven Bradbury as OLC head. As a legal scholar, Johnsen has excoriated Bush's legal policies justifying torture. Discussing a Yoo-sanctioned memo justifying the use of torture by American troops, Johnsen called the memo "shockingly flawed," decrying "the deficient processes that led to its issuance [and] the horrific acts it encouraged." Johnsen's pick is also a win for those seeking transparency at the DOJ. "I'm afraid we are growing immune to just how outrageous and destructive it is, in a democracy, for the President to violate federal statutes in secret," she said in March 2008, criticizing the administration's "utter and indefensible failure to be transparent regarding the legal advice that informs its sometimes-ludicrous positions."