JURIST Guest Columnist A. John Radsan, former CIA assistant general counsel now at William Mitchell College of Law, says that Senate Intelligence Committee members questioning John Rizzo at his upcoming confirmation hearing for CIA General Counsel should resist the temptation to posture on extraordinary rendition, secret prisons, and coercive interrogations, and instead delve into deeper issues about the lawyer’s role in secret agencies…

While many lawyers have come and gone from the Justice Department, John Rizzo, a career public servant, has held a steady watch at the Central Intelligence Agency. Since 9/11, Rizzo has sometimes been called the Acting General Counsel, sometimes the senior deputy general counsel. Whatever his title, he has kept the trust of the secret soldiers who fight for our nation’s security.

On May 15, Rizzo will step from the shadows to face questions from the Senate intelligence committee in his confirmation hearing to become the official General Counsel. John’s colleagues, away from the spotlights, all know about his flair, the matching ties and suspenders, but for our country’s sake, the Senate should reveal more of what lies beneath the surface. While Rizzo’s confirmation process should be fair, the Senate, whether in open or closed session, should not give him a free pass.

The Senate, having given other lawyers a pass on controversial aspects of President Bush’s “global war on terror,” may be tempted to posture on extraordinary rendition, secret prisons, and coercive interrogations. The Senate should resist that temptation, delving into deeper issues about the lawyer’s role in secret agencies. Although the lawyers in the CIA’s Office of General Counsel have been involved in sensitive issues, they have done so in consultation with lawyers in the White House, the Vice President’s Office, the State Department, the Defense Department, and the Justice Department. John Rizzo, whatever his role, was not the person who ultimately authorized extraordinary rendition, secret prisons, or coercive interrogations.

So the Senate should ask some fundamental questions. Should the CIA’s top lawyer be an extension of the oversight committees? That is what some people thought would happen when the number of CIA lawyers expanded after Iran-Contra. Or should the General Counsel be a sort of corporate lawyer who helps the principals close their deals? That is what some policymakers prefer. Or does the CIA’s lawyer play a hybrid role between oversight and facilitation?

The last time Rizzo spoke publicly about his role as a Company lawyer was at an event my law school held in March 2007. On the 60th anniversary of the CIA’s founding, we discussed the two-way influences between the CIA and Hollywood. It was a safe setting in which John delighted us all with a story about his brush pass with Robert DeNiro, who, a few years back, had been at CIA headquarters researching The Good Shepherd.

Rizzo, who started with the CIA in 1976, says it is a good thing when a career lawyer rises to the top of the ranks. The last time an insider rose to the top was Larry Houston. Houston served as chief lawyer to the Office of Strategic Services, the CIA’s precursor, and later as the CIA’s first general counsel until 1973. After Houston, a tradition had been established that the CIA’s General Counsel should come from the outside, whether from private practice or another government agency. That outside experience, so it was believed, contributed to the General Counsel having fresh ideas and providing effective oversight.

Putting aside questions about insiders and outsiders, I have a bias in favor of John Rizzo. Having worked under him, I like him and respect him. But his confirmation hearing, of course, should go beyond any individual and beyond any friendship. Back to true oversight, the Senate should be comprehensive in determining whether Rizzo deserves its stamp of approval.

Not until after Iran-Contra has the CIA’s top lawyer required Senate confirmation. Therefore, Rizzo would be only the third, Senate confirmed, general counsel. At the first confirmation — for Robert McNamara, a Clinton nominee — the Senate bypassed a hearing and went straight to a positive vote. Next, Scott Muller, a Bush nominee in 2002, also had it short and easy. A year after 9/11, the Senate allowed Muller to rest on clichés: “I view the lawyer more as a navigator who will help the captains of the ship steer it as best they can so it’s not to hit shoals, to tell them where the water is deep and where it is shallow. . .” Worse, a Democratic Senator told Muller that he did not share a prior general counsel’s view that the CIA needed “adult supervision.”

Despite what was said at Muller’s hearing, the CIA clearly needs the kind of supervision that only an adult can provide. The confirmation process is democracy’s way of deciding whether John Rizzo, an adult from the inside, provides the necessary balance in giving counsel to all parts of the CIA. Let the questions begin.

A. John Radsan, director of the National Security Forum at William Mitchell College of Law, was assistant general counsel at the CIA from 2002-2004.

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