With the Senate confirming Congressman Mike Pompeo to serve as the next director of Central Intelligence, and with several former military officials filling various other national security positions within the Cabinet, President Trump has set the stage for a reinvigorated and bulkier American foreign policy. In the view of the president’s supporters, it will reflect a less-inhibited flexing of American national security muscle that was confined during the Obama Administration to high-tech but ultimately legalistic tactical operations.
As director of the CIA, Pompeo will oversee an agency unsure of its place in the new Administration. Although Trump has spoken often of wanting to reinforce the CIA’s existing human intelligence operations, his verbal spats with the agency over Twitter in the weeks leading up to his inauguration did little to ease the anxiety of agency officials concerned about the temperament of the current occupant of the Oval Office. Plus, still sore from being publicly shamed just a few years ago by the Senate’s “torture report,” there is little appetite among most CIA rank and file employees for a return to the legal “Wild West” they inhabited in the early years of the Bush administration.
By way of example, during his time in Congress, Pompeo was an outspoken advocate for a roll-back of the various legislative and executive reforms put in place in the aftermath of the leaks by former NSA contractor Edward Snowden. In an op-ed in January 2016, he went so far as to propose passage of a law permitting collection of all metadata, and combining it with publicly available financial and “lifestyle” information into a comprehensive database. Such a proposal arguably exceeds even the broad authorities exercised by the intelligence community prior to Snowden’s leaks, and the constitutionality of such a proposal would be subject to immediate and extensive legal challenges.
Although the CIA itself plays a smaller role in the field of metadata collection compared to NSA, Pompeo would undeniably have a persuasive voice in any White House discussions on the subject. It would be foolish to imagine his views would not hold some weight with the president.
An even murkier issue is that of the possible return of “enhanced interrogation techniques.” Viewed as torture by many, Pompeo – to his credit – supported legislation that confined the method of enhanced interrogation techniques to that which is already deemed legal and permissible by way of the Army Field Manual, a restriction that did not exist when the practice was used during the Bush administration.
However, in response to Senate inquiries, Pompeo waffled between his hearing testimony – where he proclaimed he would not comply with an order to restart use of enhanced interrogation techniques beyond those authorized by the Army Field Manual – and his answers to written questions – where he indicated he might recommend rewriting the Army Field Manual if he felt it was an “impediment to gathering vital intelligence.” This waffling is somewhat unsurprising given Trump’s own meandering back and forth during the course of the presidential campaign over authorizing the use of torture.
It is unlikely that Pompeo is someone that will be easily intimidated by the “alpha male” Cabinet that Trump is assembling. Pompeo has his own professional and military background, and he does not come across as someone prone to being “pushed around” in the bureaucratic sense. Just how much he actually will have the ear of the president, and how persuasive he is in conveying the merits of his views, will play a significant role in determining how much leeway the CIA will have in countering an increasingly decentralized terror threat, a resurgent Russia, and an increasingly confident China.
In effect, the degree to which Pompeo can secure presidential approval to let the CIA “off the leash” will likely determine whether the agency returns to some practices (and scandals) long thought put to rest.
Bradley P. Moss is a partner at the Law Office of Mark S. Zaid, P.C., through which he has represented countless individuals (including whistleblowers) serving within the intelligence community, and deputy executive director of the James Madison Project, through which he has represented media outlets such as Gawker, Daily Caller, and the Daily Beast in FOIA lawsuits against the Bush and Obama administrations.
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