Intelligence Collection and the Rule of Law

“Some of our adversaries will say or do anything to advance their cause; we will not.” That’s what a Top Secret National Security Agency document says, as reported by the New York Times over the weekend (“No Morsel Too Minuscule for NSA” by Scott Shane, November 2).

But the list of things that U.S. intelligence agencies will not do to support the collection of foreign intelligence is likely to be shorter than the list of things that they will.  Gathering intelligence means stealing secrets that another country (or other entity) does not wish to reveal.  Towards that end, various forms of bribery, burglary, robbery, coercion and other crimes are tacitly understood to be permitted.

In the CIA clandestine service, “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,” as a 1996 report from the House Intelligence Committee memorably explained (IC 21: Intelligence Community in the 21st Century, Chapter IX, at p. 205).

“A safe estimate is that several hundred times every day (easily 100,000 times a year) DO [CIA Directorate of Operations] officers engage in highly illegal activities (according to foreign law) that not only risk political embarrassment to the US but also endanger the freedom if not lives of the participating foreign nationals and, more than occasionally, of the clandestine officer himself,” the 1996 House report said. “In other words, a typical 28 year old, GS-11 case officer has numerous opportunities every week, by poor tradecraft or inattention, to embarrass his country and President and to get agents imprisoned or executed.”

When secrecy cannot be assured, those risks are magnified nearly everywhere that intelligence collection takes place.

As DNI James Clapper said at a hearing of the House Intelligence Committee last week, “there are many things we do in intelligence that, if revealed, would have the potential for all kinds of blowback…. the conduct of intelligence is premised on the notion that we can do it secretly and we don’t count on it being revealed in the newspaper.”

“The intelligence community must acknowledge how difficult it is to keep secrets today,” said ODNI General Counsel Robert Litt in a speech last week.

“In determining what activities to undertake we need to give more consideration to what the impact of additional leaks would be,” Mr. Litt said. “In each case we have to assess, to a greater extent than we have to date– is the game worth the candle?”