Secrecy & Government Bulletin
Issue Number 84
- Intelligence versus the Rule of Law
- CIA Classification Policy: "Managing" the Public
- FOIA Under Assault in Congress
- Secrecy and Security News by Email
Intelligence versus the Rule of LawIntelligence collection, as traditionally practiced, means stealing secrets. As such, it often entails a calculated and deliberate violation of foreign or international laws. This extra-legal dimension of intelligence is highlighted by new legislation introduced in the Senate, which is intended to help preserve it against the encroachment of international law.
Within the Central Intelligence Agency, "hundreds of employees on a daily basis are directed to break extremely serious laws in countries around the world in the face of frequently sophisticated efforts by foreign governments to catch them," according to a 1996 House Intelligence Committee report.
"A safe estimate is that several hundred times every day (easily 100,000 times a year) [intelligence] officers engage in highly illegal activities (according to foreign law)...." (IC21: Intelligence Community in the 21st Century, p. 205).
Ironically, DCI George Tenet suggested in a May 25 speech to graduates of Johns Hopkins University that U.S. intelligence can serve "to help strengthen the rule of law in countries whose stability is threatened by unfettered crime." But in practice, defying the rule of law is the CIA's modus operandi "in countries around the world."
Every once in a while, the essential contradiction between law and intelligence, as practiced by the CIA, rises to the surface and becomes explicit.
Lately, the Senate found it necessary to introduce legislation that will further insulate intelligence from international legal norms. Section 305 of the Intelligence Authorization Act for FY 2001 (S. 2507) is intended to make it harder to constrain illegal intelligence activity through international agreements. That provision states, in part:
"No Federal law enacted on or after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2001 that implements a treaty or other international agreement shall be construed as making unlawful an otherwise lawful and authorized intelligence activity of the United States Government or its employees, or any other person acting at their direction to the extent such other person is carrying out such activity on behalf of the United States, unless such Federal law specifically addresses such intelligence activity."
In other words, no future treaty will be understood to prohibit any intelligence activity if it has been duly authorized by U.S. government officials.
According to the Senate report on the bill:
"There has been a concern that future legislation implementing international agreements could be interpreted, absent the enactment of [this] Section 305, as restricting intelligence activities that are entirely consistent with U.S. law and policy [but which violate foreign laws or international agreements].... The intelligence officers who work hard to conduct lawful and authorized activities to protect the national security of the United States will not be burdened by the uncertainty that laws never intended to apply to their activities could be so interpreted."A congressional staffer said the new provision was urgently needed, given that the CIA habitually engages in criminal activity abroad (which is authorized by U.S. officials and hence "entirely consistent with U.S. law and policy"). Otherwise, "If we were faced with a treaty prohibiting bribery, say, we couldn't sign on to it in good faith," the staffer said, since bribery is a standard part of the intelligence toolkit.
Confusion arising from this type of conflict "has been a problem in one particular case" in the past -- "I'm not going to tell you what it is" -- and in another case that is now pending, the staffer said.
As it happens, the U.S. is a signatory to the 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which came into force last year. Conceivably, this Convention may have precipitated or expedited the Senate action.
The new provision has been endorsed by the Senate Judiciary Committee and the Senate Foreign Relations Committee, the staffer said, and is all but certain to pass.
A Road Not Taken: "No Spy" Zones
Sometimes one must be cruel to be kind. If the CIA spied only on outlaw regimes or on governments that are consistent violators of legal norms, then one could argue that its illegal operations abroad are an appropriate means to advance the rule of law.
But the CIA spies on practically everybody, or at least it reserves the right to do so. In fact, there are only three countries against which the U.S. is committed not to engage in espionage: the United Kingdom, Canada, and Australia (as noted most recently by Mark Lowenthal in his book Intelligence: From Secrets to Policy).
The new Senate provision will do no more than preserve this status quo, in which intelligence collection is understood by all to be above, or below, the law. But it points to a road not taken.
In an only slightly better world, one could imagine an effort to expand the existing agreement between the US and its English-speaking allies so as to create ever larger "no spy" zones, in which intelligence, like every other civilized activity, would be subordinated to the rule of law. Outlaw regimes that engaged in aggressive or criminal activity would not be eligible. But elsewhere, the rule of law would be taken seriously by all parties, including the U.S., and would be paramount.
(An earlier proposal for pacts of "reciprocal restraint" in which countries would forswear espionage against each other was presented by Amb. Robert E. White of the Center for International Policy in a February 7, 1996 Washington Post op-ed.)
This is not purely a matter of abstract principle. It lies close to the heart of the "Echelon" controversy, which has created enduring friction between the U.S. and Europe due to European concerns about pervasive eavesdropping conducted by U.S. intelligence. Though largely ignored in the U.S., the topic remains a sore point in Europe and a focus for a variety of grievances against America. Echelon is the subject of intense media interest and a perennial item on the agenda of the European Parliament.
As things stand, there is no obvious resolution to this controversy, except perhaps through wholesale adoption of strong encryption throughout Europe, which would render the issue more or less moot.
One alternative outcome that is apparently beyond reach would be for the United States to commit to respect European laws on privacy and communications security. We cannot do so because U.S. intelligence will not be bound by such restrictions. So much for the rule of law.
To constrain intelligence internationally by certain minimal legal norms could have been a worthy and even an achievable goal. But Congress sees it otherwise.
CIA Classification Policy: "Managing" the Public
The United States is overwhelmingly and by unprecedented margins the strongest nation in the world-- militarily, economically, and even culturally. It would be hard to overstate the magnitude of U.S. might. A booming economic superpower with a global military reach that extends to every continent and every ocean, under water and into space, and whose cultural effusions permeate the remotest corners of the planet-- the U.S. simply has no peer competitor.
Yet you would never know this by listening to officials of the Central Intelligence Agency. In particular, CIA classification policy is predicated on a claim that the U.S. is in mortal danger. The nation is in such precarious condition, it seems, that even the disclosure of a single budget number or a 50 year old narrative could damage our security.
Thus Director of Central Intelligence George J. Tenet swore under oath last year that acknowledging the total size of the U.S. intelligence budget in 1999 "could reasonably be expected to cause damage to national security" and to compromise intelligence sources and methods. The CIA reiterated this position recently in refusing to disclose the total budget figure for fiscal year 2000.
And in response to a pending lawsuit filed by the National Security Archive, William H. McNair of the CIA Directorate of Operations declared that no more than a single sentence out of a 200 page official history of the 1953 coup in Iran could be declassified without damaging U.S. national security. To release more, he told a federal judge in the usual formula, would damage the national security and compromise sources and methods.
How is it that grown men can say such silly things with a straight face, and without blushing or bursting into laughter?
CIA officials are not altogether unique in this respect. Other agencies also follow arbitrary disclosure policies and occasionally tell whoppers in court. But CIA classification policy is so egregious, so utterly at odds with real world security issues, and so consistently shameless that some unique factors appear to be in effect.
A 1997 study chaired by Lt. Gen. William E. Odom suggested that the very nature of intelligence as a profession may lead to organizational pathologies of the kind that are in evidence at CIA. The Odom study explained:
"Deception and misrepresentation are the heart of clandestine [human intelligence] skills. Effective ‘case officers' must excel in the business of making appearances conceal realities.... To put it colloquially, being good as a ‘con artist' is extremely helpful in recruiting and handling agents."Under the "pressures" of the Freedom of Information Act, or the executive order on declassification, the CIA has quickly resorted to misrepresentation and has "managed" the system to produce the outcomes it favors.
"[But] the same abilities are not helpful to managers and leaders in hierarchical organizations. If lower- and mid-level managers in bureaucratic structures have a proclivity for ‘con games' and ‘managing' the reporting of the cold, hard facts of operations both up and down the chain of command, that can be highly dysfunctional for the organization..."
"All intelligence organizations, because of their secrecy requirements, confront this management problem.... Skills honed for recruiting and handling agents are easily turned to dealing with undesired management pressures from above." (Modernizing Intelligence, National Institute for Public Policy, Sept. 1997, p. 90).
Independent oversight, which might have been relied upon to curb such behavior, has been largely neutralized, in part through the continuing exchange of personnel between the intelligence agencies and the congressional oversight committees. The Washington Post reported most recently that Rep. Porter Goss, who is the chairman of the House Intelligence Committee and a former CIA officer, is a leading contender to become Director of Central Intelligence in a George W. Bush administration. Working hand in hand with DCI Tenet, the Post reported on May 30, Rep. Goss led an effort to block a legislative amendment requiring disclosure of the previous year's intelligence budget total.
Still, the picture is not completely grim. Paradoxically, or dialectically, the CIA's excesses help to create and inspire the Agency's own opposition. By refusing to release the official history of the 1953 Iran coup sought by the National Security Archive, the CIA enabled the unauthorized disclosure of the document to the New York Times, which published excerpts from it on April 16. In the long term, buffeted by litigants and leakers, the CIA's distorted classification policies appear to be unsustainable.
FOIA Under Assault in CongressAs if the Freedom of Information Act were too powerful a tool that had been too successful in opening up government records to public scrutiny, Congress is moving to enact several amendments to the FOIA that will significantly reduce its utility:
Characteristically, these provisions have been advanced without public hearings or other opportunity for critical examination.
- Section 1044 of the Defense Authorization Act for FY 2001 (S. 2549) would create an expansive new FOIA exemption for unclassified information provided by a foreign government. This provision could exclude from public access a wide range of valuable information. For example: "The U.S. and Russian nuclear labs are increasingly involved in cooperative weapons stewardship projects, much of which is unclassified," said Greg Mello of the Los Alamos Study Group. "U.S. companies like Intel are also now involved in helping the Russian weapons design effort," he added. "This exemption could shield all of this."
- Section 1045 of the Defense Authorization Act would create a new FOIA exemption for "operational files" of the Defense Intelligence Agency, comparable to the exemption enjoyed by the CIA since 1984 which allows it to forego any search for files designated as "operational." But the CIA, properly or improperly, never released much in the way of operational files anyway, so its FOIA exemption did little practical damage. In contrast, noted Tom Blanton and Kate Martin of the National Security Archive, the Defense HUMINT Service of the DIA and its precursor agencies have been much more discriminating-- and forthcoming. DIA "operational files" on Guatemala, for instance, obtained under the FOIA, have proven indispensable to the work of the Guatemalan Human Rights Commission. The new exemption could prevent any such releases in the future.
- The Cyber Security Information Act (H.R. 4246) is intended "to encourage the secure disclosure and protected exchange of information about cyber security problems, solutions, test practices and test results, and related matters in connection with critical infrastructure protection." The words "secure" and "protected" here mean secure and protected from the public; the bill would create yet another exemption to the FOIA, which would rather indiscriminately allow withholding of cyber security information voluntarily provided to government by industry. The FOIA already includes specified exemptions for proprietary information, such as trade secrets, as well as for personnel, law enforcement, and classified security information.
- Meanwhile, the House moved to impose a $30 million cap on Pentagon spending for declassification in FY 2001. This represents a severe reduction from the $51 million that was authorized for FY 2000, which followed a pitched battle during the House-Senate conference last year. Spending for classification and classification-related costs, which was last reported by the Information Security Oversight Office to have reached an annual level of $5.6 billion, was left unrestricted.
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Secrecy and Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists.
The FAS Project on Government Secrecy is supported by grants from the W. Alton Jones Foundation, the John S. and James L. Knight Foundation, the Rockefeller Family Fund, the HKH Foundation, and the Stewart R. Mott Charitable Trust.