Ethical Issues in Intelligence: A Practitioner's Perspective

An Abstract of a Presentation by

Major Troy S. Thomas (US Air Force),

(Joint Military Intelligence College/School of Advanced Warfare)

Given the context in which intelligence activities take place and the complexities of the intelligence cycle, multiple ethical issues regarding intelligence collection and analysis arise. Here, I discuss ethical issues that have arisen during my time as an intelligence analyst and leader. I highlight pitfalls that arise for the practitioner of intelligence and discuss from the ground-level perspective how moral issues are dealt with over the course of intelligence operations.

A related paper by Major Casebeer follows:

AN OVERVIEW OF U.S. CONGRESSIONAL OVERSIGHT OF INTELLIGENCE-RELATED ACTIVITIES:

A PRIMER FOR INTELLIGENCE ETHICISTS

By William D. Casebeer, PhD, Major, USAF

wdcasebe@nps.edu

In a democracy, many citizens rightly find it troubling that government agencies should be allowed to operate in private, with no public check on their activities. This is especially worrisome for intelligence operations, as they are cloaked in multiple layers of classification and secrecy and thus have a high potential for abuse of the public’s trust and money. Several oversight mechanisms exist to ensure that US intelligence agencies are spending their money wisely and are engaging in activities that are in fact for the public good and which are conducted in accordance with the demands of the Constitution. Some of these mechanisms are driven by the public and individual US citizens (for example, the Freedom of Information Act), and some lie in the executive branch (via the Intelligence Oversight Board, or various Inspector Generals), but probably the most important oversight of intelligence activities, and that which is most visible to the general public, is provided by the United States Congress.

The Congress has multiple means of oversight, including the most critical: the power of the purse. Congress must both authorize and appropriate funds for intelligence operations; authorization occurs when Congress approves specific programs, and appropriation consists in actually allocating money for the authorized programs. Since every operation needs money to actually be implemented, no other Congressional oversight activity offers the same degree of control and insight into intelligence activities as does budgetary control. Congress has other oversight mechanisms as well: they can hold hearings about particular intelligence issues, the Senate can use their power to advise and consent to treaty ratification to demand improvements to intelligence capacities (as happened during the ratification of the Strategic Arms Reduction Treaty, called START, where the Senate’s ratification of the treaty was contingent upon the administration providing more imagery capable satellites), and they can confirm or reject intelligence nominations (former President Carter’s nominee for Director of Central Intelligence--the DCI--Theodore Sorensen, withdrew his nomination after a Senate committee questioned him about his views). Congress can also demand prior notice of covert actions, and can “log roll” or “take hostages” by refusing to take certain actions (such as authorizing the intelligence budget) until intelligence agencies do certain things. They can also call for investigations and reports on intelligence activity. United States law requires that intelligence agencies keep Congress “fully and currently informed” about all “significant anticipated intelligence activities” and “significant intelligence failures,” as well as any provide any other information the Congressional committees demand.

There are two Congressional committees whose charter explicitly includes oversight of intelligence and which can subpoena witnesses and authorize expenditures: the Select Committee on Intelligence in the Senate, and the Permanent Select Committee on Intelligence in the House of Representatives. No other country in the world comes close to providing the quality of oversight these two committees enable; they have gained a reputation over the years, by most accounts, for providing knowledgeable (yet skeptical) oversight.

While contemporary Congressional oversight is provided primarily by these two committees, there is a longstanding tradition of such oversight activity on the part of the Congress, although it was much more lax and less formal until late in the 20^th century. President George Washington established a “secret fund” for use by him during his presidency to conduct intelligence operations necessary for the survival of the newly constituted United States; by the end of his third year in office, this fund amounted to twelve percent of the total national budget, and was used for such things as attempting to bribe Napoleon Bonaparte into coercing Spain to cede Florida to the United States. Various members of congress tried to obtain records of what this money was spent for, and how much was spent, but to no avail. Later, President James Polk’s defiant attitude toward the Congress on the issue cemented in place a hands-off tradition that lasted until after World War II, when Congress again attempted oversight by passing the National Security Act of 1947 (the single most important piece of intelligence-related legislation ever passed). This statute established the Central Intelligence Agency, and assigned each house’s Armed Services Committee and Defense Appropriations Subcommittee an oversight function, although in reality actual knowledge of CIA activities was limited to the committee chairs and minority leaders, and they acted primarily to ensure that the necessary appropriations were inserted into the annual budget to support Agency activities.

These lax attitudes ended in the wake of President Nixon’s Watergate scandal and the American involvement in the Vietnam War. In 1975, reports reached Congress of intelligence agencies collecting against U.S. citizens, or being involved with attempts to assassinate foreign leaders and overthrow their governments. Allegations such as these led to the establishment of three committees to investigate intelligence oversight issues. One was headed by then Vice-President Nelson Rockefeller in 1975; the others were Congressional, and were headed in the House by Representative Otis Pike and in the Senate by Senator Frank Church in 1976. The actions of these two committees came to be known collectively as the “Church-Pike investigations.” The Church-Pike investigations concluded that previous oversight activities were not strict enough, as they were governed only be gentlemen’s agreements that had evolved both implicitly and explicitly during the cold war years. The Church committee issued over 183 reform-minded recommendations on April 26, 1976, including ones that increased the DCI’s control and oversight capabilities within the Central Intelligence Agency. The Pike committee’s report was similarly sweeping, and called for reforms that made it more transparent to the Congress what purpose was served by each line item budget requirement. Both reports also called for the establishment of standing House and Senate committees that would oversee intelligence activities. As a result, the Senate Select Committee on Intelligence was established on May 19, 1976. Almost a year later, the House Permanent Select Committee on Intelligence was established on July 14, 1977. This delay was caused by the leaking of the Pike committee’s report to the newspaper “The Village Voice” well before the report was to be released (and as a result, the committee disbanded and actually never published a final report), causing the House to be more wary of yet more congressional involvement in intelligence concerns.

Issues about the exact composition and nature of the committees themselves continue to concern the Congress, and various investigative committees have recommended that a joint panel be established, or that membership on the committee be made permanent (currently, members serve eight year terms), or that both committees be made bipartisan (currently, the Senate committee is balanced evenly between political parties, irrespective of who currently controls the Senate, whereas the House committee reflects the political makeup of the House itself and is hence a partisan organization).

After the flurry of investigative activity in the mid-70’s, relations between the Congress and the intelligence world gradually became advisory rather than adversarial, although several important pieces of intelligence-related legislation were passed. The Foreign Intelligence Surveillance Act requires that a court order be obtained for intelligence-driven electronic surveillance conducted within the US; the Classified Information Procedure Act put in place a set of procedures for handling such information in Federal courts; the 1980 Intelligence Oversight Act required notice of covert action to the two intelligence committees; and the CIA Information Act of 1984 exempted some operational CIA information from the disclosure requirements of the Freedom of Information Act.

Improving good relations between Congress and the Executive Branch were put to the test during the first Ronal Reagan administration. Both oversight committees were particularly concerned with this administration’s policy towards Central America, especially the CIA’s involvement with the Contra rebels against the Sandinista regime in Nicaragua. Via the Boland amendments, Congress finally put in place a funding restriction on the administration’s support of the rebels. The second Reagan administration engaged in a covert action designed to sell arms to Iran in an effort to obtain the release of American hostages in Lebanon; the funds from these activities were then to be channeled to the Contras, in direct opposition to the Boland amendment restrictions. The administration’s initial covert action “Finding” even contained specific instructions that the Congressional oversight committees not be told of these activities. This was probably the greatest breech in trust between the executive branch’s intelligence activities and Congress since the Congressional oversight committees were established.

This “Iran-Contra Affair” caused the oversight committees to demand legislation requiring the President to notify the committees of all covert actions within 48 hours of their implementation. President George Bush, Sr., himself a former Director of Central Intelligence, vetoed this provision in 1990 when it was included in next fiscal year’s Intelligence Authorization Bill. Compromise language requiring notification of the committees “in a timely fashion” was reached. A failure on the administrations part to provide full information about such activities can have a damaging effect on trust between the executive and legislative branches. For example, DCI William Casey failed to inform the Senate Intelligence Committee that the CIA was directly involved in the mining of a Nicaraguan Port (Corinto) during the contra’s struggle against the Nicaraguan government. The CIA allowed the Senate to have the impression that the contras had carried this out entirely on their own. When the truth came out, Vice Chairman of the committee, Democratic Senator Moynihan, resigned (although he later retracted the resignation), and Republican Chairman Barry Goldwater upbraided Casey in public in harsh terms.

Owing to the activity of both committees, after negotiations with the Bush administration, “The Intelligence Organization Act of 1992” was appended to the authorization act for intelligence funding for that fiscal year. It codified what was, de facto, the case for the DCI, although these amendments to the National Security Act of 1947 were important for putting into law recognition of the DCI as the official advisor to the National Security Council, establishing the National Intelligence Council as the highest analytic authority, and giving the DCI approval authority for the budgets of intelligence agencies. The most recent high-visibility activity of the Select Committee on Intelligence in the Senate and the Permanent Select Committee on Intelligence in the House of Representatives involved holding a joint inquiry into the September 11, 2001 terrorist attacks upon the World Trade Center and the Pentagon. The inquiry concluded that no single intelligence agency held enough information to have predicted or prevent the attacks, but it did call for greater consolidation and coordination of the exchange of intelligence information between agencies.

There are a multitude of outstanding issues regarding oversight relationships between congress and the intelligence community that are being resolved or which need to be resolved. Mark Lowenthal has an excellent discussion of these issues in his book “Intelligence: From Secrets to Policy.” He identifies several areas of concern.

First, how much congressional oversight is enough? The early years of oversight were characterized by a lax and permissive attitude, although the scandals of the 1970s, and the Iran-Contra affair, have led to heavier oversight activities. Does effective oversight require advance notification and coordination of covert operations, or is after the fact notification all that is needed, and if so, at when should Congress be notified? Second, what is the proper balance between the demands of secrecy and oversight? Effective oversight requires full access (members of Congress receive security clearances after election). But, effective intelligence operations require tight security and control over sensitive information, and Congress has a reputation for leaking such details. However, this reputation may not be deserved, as members of the executive branch leak far more information than Congress on the whole. What is the proper balance between Congressional notification and the demands of secrecy? In a related issue, can we expect that Congress serves as an effective surrogate for the sovereign in the U.S.—the people? The Freedom of Information Act (FOIA), in part, addresses this issue by requiring the Federal government to be responsive to demands by the public for certain kinds of information. Senator Daniel Patrick Moynihan has been frank in calling publicly for a dramatic reduction in the amount of overall classified material, arguing that much material is over classified or unnecessarily classified. Third, what should the relationship between Congressional oversight and the intelligence budget be? Should the administration be required to release all details of the budget, just the total, or nothing at all? Currently, the administration usually just releases the total budget (owing in part to previous FOIA requests).

In a democratic polity, oversight is extremely important. Our government consists of checks and balances, and only effective oversight can ensure that the authority and ability to collect, analyze, and disseminate intelligence and covert operations is not abused or misused. Seeking the appropriate balance between allowing intelligence agencies to regulate their own affairs, and having their affairs overseen by Congress, is difficult. Until relatively recently, the relationship between Congress and the intelligence community has been hands-off, but owing to abuses of this trust, particularly late in the 20^th century, Congress has established more formal and rigorous means of exercising oversight. Wisdom on the part of Congress is necessary if oversight is to both effectively enable and regulate the conduct of the intelligence community.

Works Cited

Air Force Instruction 14-104. Oversight of Intelligence Activities.

IC 21: The Intelligence Community in the 21^st Century. Staff Study. Permanent Select Committee on

Intelligence, House of Representatives, One Hundred Fourth Congress. Available online at

http://www.access.gpo.gov/congress/house/intel/ic21/ic21015.html.

Lowenthal, Mark M. (2003). Intelligence: From Secrets to Policy. 2^nd ed. Congressional Quarterly

Press: Washington, DC.

Moynihan, Daniel Patrick (1999). Secrecy: The American Experience. Yale University Press: New

Haven, CT.

Smist, Frank J., Jr. (1994). Congress Oversees the United States Intelligence Community, 1947 –

1989. 2^nd ed. University of Tennessee Press: Knoxville, TN.

Van Wagenen, James S. (1997). “Critics and Defenders: A Review of Congressional Oversight.”

Studies in Intelligence. Semiannual Edition, No. 1, 1997. (published by the CIA; available online at http://www.cia.gov/csi/studies/97unclass/index.html)