Intelligence Agencies Have a “Duty to Warn” Endangered Persons

Intelligence agencies that discover a threat to a person’s life or safety are obliged to alert the intended target in most cases as long as they can do so without compromising intelligence sources and methods, a new intelligence community directive instructs.

A U.S. intelligence agency “that collects or acquires credible and specific information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person or group of people shall have a duty to warn the intended victim or those responsible for protecting the intended victim, as appropriate,” the new directive states. “This includes threats where the target is an institution, place of business, structure, or location.”

Remarkably, “the term intended victim includes both U.S. persons… and non-U.S. persons.”

The “duty to warn” obligation, which in principle dates back at least several decades, was formally established last month by Director of National Intelligence James R. Clapper in Intelligence Community Directive 191, July 21, 2015.

It is not binding in all circumstances, however. Notification of the target would be waived if it “would unduly endanger U.S. government personnel, sources, methods, intelligence operations, or defense operations.”

The notification requirement also does not apply in cases where the threat emanates from the U.S. government itself, whether in combat operations or in “covert” targeted killing programs. Thus, the directive states that the requirement would be appropriately waived when “There is a reasonable basis for believing that the intended victim is a terrorist, a direct supporter of terrorists, an assassin, a drug trafficker, or involved in violent crimes.”

Likewise, no notification would be required in cases where “The intended victim is at risk only as a result of the intended victim’s participation in an insurgency, insurrection, or other armed conflict.” Nor is notice needed when the intended victim “is already aware of the specific threat.”

The “duty to warn” requirement seems to be an obligation that has been voluntarily assumed by the U.S. intelligence community, perhaps for moral or prudential reasons. In other contexts where there are similar requirements for professionals to breach confidentiality and to warn of credible threats (most notably mental health care), they are rooted in case law. But no comparable legal precedent or statutory requirement appears to exist in the intelligence context that would compel agencies to act in this way. The legal authorities cited in the new DNI directive — the National Security Act and executive order 12333 — do not specifically mention the duty to warn.

If necessary to protect sources and methods, “communication of threat information to the intended victim may be delivered anonymously,” the new DNI directive says.

Former U.S. intelligence officer Rick Francona recalled being part of a CIA covert action team in northern Iraq in 1995 that was tasked one day to warn an American living there that he had been targeted for death by Iranian Revolutionary Guards because of his Christian missionary activity.

Francona and his heavily armed CIA team knocked on the incredulous American’s door and introduced themselves: “We’re from the State Department.”