According to John A. Rizzo, the longtime CIA attorney nominated to become general counsel, the agency might — just might — have the power to detain a U.S. citizen overseas at the direction of the president.
Rizzo’s statement came at the end of his two-hour Senate confirmation hearing yesterday, in which he equivocated on what he thought of the Justice Department’s shifting definitions of torture and whether any top al-Qaeda detainees in CIA custody were in fact abused. Responding to a question from Sen. Ron Wyden (D-OR) about presidential authority to order CIA to take an American citizen overseas into custody, Rizzo replied, “it would be extremely problematic in terms of the rights of an American citizen for CIA to capture him overseas.”
The answer Wyden was hoping for was “no,” and he didn’t hear it. “But you say it could be done.”
“I don’t want to say it could be done,” Rizzo parried.
“You just said ‘extraordinary circumstances,'” Wyden replied.
“I meant it would be extraordinarily difficult in terms of the rights of a citizen for due process for the president to direct CIA to capture an American citizen overseas,” Rizzo said.
Wyden said he’d press the subject in closed session. While CIA has not been accused of detaining a U.S. citizen overseas, the Justice Department has claimed in court that the indefinite detention without charge of U.S. citizens Yaser Hamdi and Jose Padilla was a plenary presidential war power. (The Supreme Court rejected the argument in Hamdi’s case and Padilla was eventually charged in a civilian court.) Additionally, the Saudi government detained U.S. citizen Ahmed Omar Abu Ali for 20 months without charge, a circumstance known to the FBI, before he was charged in U.S. courts in February 2005 — and ultimately convicted — of plotting to assassinate President Bush. None of these cases involved the CIA, but the Bush administration has consistently maintained that U.S. citizens can be treated as unlawful combatants, and therefore subject to detention without charge.
If confirmed, Rizzo’s first big challenge will be reviewing a new set of CIA authorities for detention and interrogation for their legality, pending a forthcoming executive order.