Sunday, January 29, 2006

Ethics and Intelligence: Not an Oxymoron

By Melissa Boyle Mahle

Yesterday I attended a conference on ethics and intelligence. I had prepared for this conference for the past five months as I was presenting a paper entitled, “Renditions: The Ethics and National Security Debate”. I was unable to deliver my paper because of CIA censors. But before going into these details, let me say a bit about the conference.

The purpose of the conference was to explore whether intelligence professionals could and should adhere to a formal ethics system as part of a best practices approach. For example, in the legal and medical profession, professionals must rigidly practice professional ethics. The professional associations provide guidance on ethical dilemmas and encourage professional debate on the do’s and don’ts. If found in breach of ethical standards, doctors and lawyers can be sanctioned by their colleagues through their professional association.

Presenters at the conference covered a wide range of perspectives, from the military, academia, philosophy, law, anthropology, and psychology, and of course folks from the intelligence community (IC). This was the strength of the conference.

Topics of the presentations were all over the board. Some very good. Some very bad, in my humble opinion. To the bad first. There were kooky and malicious allegations by some of terrible past deeds by the CIA and special ops folks. I am not going to repeat these in specific because why spread falsehood. But in general, some accused the IC of kidnapping, murder and other immoral behavior on a grand and pervasive scale. As they described their image of the CIA in particular, I was left bewildered because never in my time at the CIA did I ever participate, read about, hear at loud or in whispers any hint that such terrible acts were are part of our history or present.

What I found most beneficial were the discussions of ethical frameworks already well developed that could be used within the intelligence world. Particularly, the military concept of Just War. If in our society, it is ethical to be a soldier and protect the nation’s security within a well developed ethical framework, why can we not create a similar construct for intelligence professionals? I am sufficiently intellectually stimulated that I will explore these concepts in greater detail in the coming months.

Some of the questions were writ large: Do we have a right to privacy from eavesdropping activities? Should there be informed consent before collection, recruitment or intelligence exploitation? What does commensurate force mean in intelligence collection? What is the intelligence equivalence of last resort? Does the American democratic right to know the activities of its government extend to the activities of the intelligence community?

Many of the questions were focus and tactical: Should the US engage in and condone torture? When is domestic surveillance permissible? Can leaking to the press ever be considered ethical? And many more.

What were the views of the IC on this conference? If they had any, they were silent. In my opinion, a conference such as this could be openly supported by the IC leadership. I firmly believe that our officers think about ethics a lot because the nature of the work presents them with dilemmas on a daily basis. It is worth countering the ill-informed statements that intelligence officers have no ethics or lose their ethical footings the moment they walk into the shielded enclosure of the intelligence community.

The idea that intelligence officers are amoral is just not true. I consider myself a very principled person with strong moral foundations. I look at my past career, at the ethical dilemmas I faced. I am comfortable with the decisions I made and I sleep well at night. From my conversations with my former colleagues, I know this to be true of many of them.

Why did the CIA not participate or sponsor or encourage this conference? Perhaps it was under their radar screen as I was told by one serving official. Why did they hinder the conference by not letting me add to the debate? The official response was that my paper contained classified information. The real answer is that they did not wish for me to participate. I am too high profile and speak with too much authority. My paper, admittedly controversial, contained no classified. Much of the material the censors blacked out can be found on the CIA website. Some of the material was directly pulled from the United Nation’s website in the form of a ratified convention by the UN and the US Senate. Other information came from published reports by Human Rights Watch. There were footnotes and quotations to source the information.

No, the CIA bureaucrats were hiding behind the false flag of the censors. We tend to think of censors working in small rooms, their weapon the black marker. Under Porter Goss, the censors today use a paint roller and work in the dark. They assume that if the topic is related to intelligence, it is classified. This is the result of the bubble in which they live.

At the end of the day, I have full confidence the paper will be cleared. I am sure I will find a suitable journal to publish it. The CIA will look silly for their effort. Perhaps it is a tactical win on silencing debate, but ultimately a strategic loss. I don’t lose if the CIA is roundly viewed as unethical and immoral; serving officers do.

This all me think about issue of secrecy and ethics. Is silencing debate ethical? Is it abuse of power? Is it necessary? Is it productive?

Sunday, January 22, 2006

Warrantless Wiretap Entertainment

By Melissa Boyle Mahle

The debate this past week over warrantless wiretaps reminded me of World Wrestling Entertainment, shocking at first, boring as the contrived moves go on and on and ultimately predictable in results. The Al Gore Half Nelson and the White House Neckbreaker demonstrated that the issue will remain a political free-for-all, but added little to the substantive debate.

There was some informed discussion on the topic, however. The Congressional Research Service—a non-partisan research agency that informs Congress on issues of legislative interest—issued two reports that deserve close scrutiny. The first report, released on 5 January 2006, assessed presidential authority to conduct warrantless electronic surveillance to gather foreign intelligence information. The second report, released on 18 January 2006, assessed statutory procedures under which Congress is to be informed of US intelligence activities, including covert action. In a nutshell, the first found the practice in breach of the FISA law. The second report found that NSA and the White House did not meet the requirement of keeping the intelligence committees “fully and currently informed” of the domestic surveillance effort.

The first report, a slow read for a non-lawyer, made a pretty compelling argument for illegality. The second report left me laughing. The “fully and currently informed” language is a joke and has always been a joke. It is technically impossible for the intelligence community (IC) to meet this requirement because short of giving every member of the oversight committees unrestricted access to all of the computer systems in the IC, there are not enough briefers or congressional staffers and hours in the day to tell Congress absolutely everything the IC does on a daily basis.

The “fully and currently informed” language has historically been used as a spanking paddle against members of the IC when one agency or another does something that someone on the oversight committee does not like. In the 1970s, the language crept into existence, first being non-binding requirement for dealing with the newly established oversight committees. The Intelligence Oversight Act of 1980 made the “fully and currently informed” language a legal obligation for the IC—this came after the Church Committee investigation. Subsequently, the language has been invoked as Congress investigates IC activities, as a tsk-tsk for not providing details in the nth degree on an operation under investigation.

A more meaty part of the second report is the criticism that the White House and NSA restricted oversight by limiting the briefings to the “Gang of Eight”. Doing this made the whole oversight process just process, devoid of any added value. What I found amazing is not that the White House, NSA or DCI tried to restrict access to the program, but that the “Gang of Eight” agreed to the terms. It shows that they intrinsically acknowledge that oversight is an empty process.

The other interesting commentary on the topic came from Victoria Toensing in the Wall Street Journal on 19 January, entitled “Terrorists on Tap”. In it, Toensing argues that FISA is broken, has been broken and will remain broken. Unfortunately, her experience with FISA predates 9/11 as do all the examples used to support her argument. Nonetheless, she hits the nail on the head in the following passage:

“The overarching problem is that FISA, written in 1978, is technologically antediluvian. It was drafted by legislators who had no concept of how terrorists could communicate in the 21st century or the technology that would be invented to intercept those communications. The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war.”

Having reached this somewhat obvious conclusion, Toensing then completely shoots herself in the foot by arguing that the President should be excused for not asking Congress in 2001 to amend FISA because it would have led to a public debate on how the US monitors terrorist suspects. She completely ignores the fact that there was already a public debate on the shortcomings of our counterterrorism efforts as a consequence of 9/11. That public debate was in the form of the 9/11 Commission and the Joint Congressional inquiry—both of which discusses explicitly the limitations on NSA authorities to collect intelligence within the US.

Toensing also expresses the fear that if the President asks for the law to be modified, Congress will make a political issue out of it and the IC will come away with less ability to monitor. In other words, working within the democratic system is too risky; better not to ask permission and deny or make counter accusations later. Hummm.

Monday, January 16, 2006

Reading and Writing the Mail

By Melissa Boyle Mahle

In the past month, US intelligence has been accused of reading and writing the mail. Yes, US intelligence has been caught doing it job. Gentlemen do and should read and write other’s mail. This is a basic rule in the intelligence business. Good job guys!

The National Security Agency (NSA), in its efforts to develop operational leads against possible terrorists in the US, has been monitoring voice and data communications between suspected terrorists overseas and folks in the US.

In Iraq, the US is accused of spreading propaganda by paying agents of influence to spread ideas and messages the US supports.

As I wrote in previous posts, the NSA should have the authorization and established procedures to collect signals intelligence to defend national security. Yes, it needs to be done in a way consistent with US laws and with intelligence oversight, but it still needs to be done. Senator Specter, Chairman of the Judiciary Committee, will conduct hearings on the controversy in February. His comments reflect the view that the wiretapping was done in the best interests of the nation, but on shaky legal ground. This is a no-brainer, Congress. Get busy drafting legislation that provides the necessary legal framework.

Wars are not won through great defense. We must defeat the ideas for which our enemy stands. Propaganda is a powerful weapon in the war of ideas and we should not shy away from it. Reuel Marc Gerecht wrote an excellent op-ed on the topic in the Washington Post this past week. I frequently disagree with Gerecht on intelligence and Middle East issues, but think he was spot on when it comes to the value of propaganda.

'Hearts and Minds' in Iraq
As History Shows, Ideas Matter More Than Who Pays to Promote Them
By Reuel Marc Gerecht
Washington Post
Tuesday, January 10, 2006; A15

Once again we are confronted with stories about how the Pentagon and its ubiquitous private contractors are undermining free inquiry in Iraq. "Muslim Scholars Were Paid to Aid U.S. Propaganda," reports the New York Times. Journalists, intellectuals or clerics taking money from Uncle Sam or, in this case, a Washington-based public relations company, is seen as morally troubling and counterproductive. Sensible Muslims obviously would not want to listen to the advice of an American-paid consultant; anti-insurgent Sunni clerics can now all be slurred as corrupt stooges.

There is one big problem with this baleful version of events. Historically, it doesn't make much sense. The United States ran enormous covert and not-so-covert operations known as "CA" activities throughout the Cold War. With the CIA usually in the lead, Washington spent hundreds of millions of dollars on book publishing, magazines, newspapers, radios, union organizing, women's and youth groups, scholarships, academic foundations, intellectual salons and societies, and direct cash payments to individuals (usually scholars, public intellectuals and journalists) who believed in ideas that America thought worthy of support.

It's difficult to assess the influence of these covert-action programs. But when an important Third World political leader writes that a well-known liberal Western book had an enormous impact on his intellectual evolution -- a book that, unbeknownst to him was translated and distributed in his country at CIA expense -- then it's clear that the program had value. It shouldn't be that hard for educated Americans to support such activity, even though one often can't gauge its effectiveness.

Nor should it be so hard to support even more aggressive clandestine action in developing democracies such as Iraq. Let us make a Cold War parallel. As is well known, the CIA for years financially maintained the British journal Encounter. This magazine, which was perhaps the most important English-language outlet for anti-communist U.S. and European writers, influenced debates among the Western intelligentsia from the 1950s through the '70s. By bang-for-the-buck calculation, it may be the most effective nonmilitary highbrow covert action the United States has funded.

Does anyone seriously believe that the French intellectual giant Raymond Aron was compromised by regularly writing for this publication or for French magazines also funded by the CIA? Regardless of whether Aron or others at Encounter might have suspected that their checks were cut by the U.S. taxpayer, are their insights and reporting any less relevant and true?

A historian looking at Radio Free Europe-Radio Liberty when it was subsumed within the CIA would probably find it hard to suggest that it was less truthful or more subject to political manipulation than today's Radio Liberty, which operates under the oversight of the politicized and idiosyncratic Board of Broadcasting Governors. RFE-RL was probably the most successful "soft power" expenditure that Washington ever made. East European and Soviet dissidents didn't have a problem with the CIA backing. The issue with them, as it is today with Uzbeks listening to Radio Liberty or Muslims elsewhere reading or listening to U.S.-supported material, is whether the content echoes the reality that they know.

Contrary to what is commonly believed, CIA funding of intellectual "propaganda" projects -- including direct cash payments to American and foreign journalists -- has usually been done with the lightest touch. In my direct experience, and in reading files covering CA activity in Europe and the Middle East, I never saw an instance in which agency officers manipulated the final product. What was regrettable was that CIA officials often didn't have the linguistic skill or education to match the countries they covered and had no real grasp of what their CA assets were writing.

Why did the United States spend so much covert-action money in Western Europe after World War II? Washington was unsure of Western Europe's commitment to democracy and its resolve to oppose the Soviet Union and its proxy European communist parties. The programs had to be clandestine: The foreigners involved usually could not have operated with open U.S. funding without jeopardizing their lives, their families or their reputations. Did these CA projects retard or damage the growth of a free press and free inquiry in Western Europe after World War II? I think an honest historical assessment would conclude that U.S. covert aid advanced both.

Surely democracy in Iraq is at least as shaky as it was in Western Europe after the defeat of Hitler. The real complaint that ought to be made against the Bush administration is that it has allowed such important work to be contracted to a public relations firm (in the case cited above, the Lincoln Group) that has done a poor job of protecting anonymity. Nevertheless, one has to give the Pentagon credit: It seems to be the only government agency that is at least trying to develop Iraqi cadres to wage the "hearts and minds" campaign. The CIA seems to have all but abandoned its historical mission in this area.

The Bush administration shouldn't flinch from increasing its covert "propaganda" efforts in Iraq and elsewhere in the Middle East. The history in the last great war of ideas is firmly on its side.

The writer, a former CIA case officer, is a resident fellow at the American Enterprise Institute.© 2006 The Washington Post Company

Sunday, January 08, 2006

Executive Orders

By Melissa Boyle Mahle

Americans are most familiar with Executive Orders in the context of new initiatives started by the US president that may or may not be followed up by new legislation. Presidents issue them fairly frequently as a way to make the government move in a desired direction. These are all public documents. Bush’ first Executive Order was on Faith-based and Community Initiatives. A vanilla topic. Right?

To the intelligence community (IC), they are marching orders. The most important guidelines for the IC are in the form of Executive Orders. EO 12333 signed by President Reagan in December 81 and subsequently updated a number of times. EO 12333 tells the IC what the missions are authorities. EO 12333 contains the language banning assassination, using American journalists and the Peace Corps for covert operations, among many other things.

For the IC, Executive Orders are just the tip of the iceberg. This is the part that is above water, transparent to all Americans. Secret presidential orders, the body of the iceberg, fill in the blanks, providing authorization to take specific actions. Covert Action, for example, requires presidential authorization in the form of a finding (or Memorandum of Notification). If the president wants to secretly overthrow the government in a foreign country, and he wants the CIA to do it, the CIA will draft a finding for the president’s signature. There is always a tension of language on findings. The CIA prefers precise language for organizational self-protection; the White House likes vague text for political deniability. The White House usually wins these struggles, given the power of balance—the CIA works for the President.

Do presidents ever ask the CIA to break US law? Yes. A historical example is during the time of the Nixon administration when Nixon asked the CIA to engage in domestic espionage related to Watergate. DCI Helms famously refused and became political toast.

Is President Bush getting ready to ask the CIA to break US law? Since President Bush and I do not chat on a regular, or irregular, basis, I can only speculate. The “signing statement” Bush issued when he signed McCain anti-torture law makes me wonder.

In essences, Bush is saying in the signing statement that as Commander-in-chief, he reserves the right to waive the law’s restrictions in the name of protecting national security. Or, when it comes to war, the president is above the law and can authorize the CIA to act above the law.

I bet there are some nervous folks over in Langley right now. Since the rather public fight between the CIA and the White House in the run up to the Iraq war and the months that followed, the CIA has been doing its utmost to mend fences and to show that the men and women of the CIA are indeed the president’s men. Director of the CIA Goss has been at the vanguard. How will Goss react if and when he gets pressure from the White House to continue harsh interrogation practices? How will the GS-10 in the prison cell interrogating the al-Qa’ida prisoner react?

I am currently preparing a paper for a conference on Ethics and Intelligence. One of the questions I ponder is what makes good people do bad things. My conclusion is that when an operations officer is called to the Seventh Floor and told that he is being sent out somewhere to do a particularly important and difficult interrogation, that officer is being set up for the ethics test of his life. He is told it is critical, the nation’s security could be at stake; break the guy and bring home the intelligence. The President wants it. I come from this culture and understand the unspoken message: duty, loyalty and mission accomplishment trumps all.

Will Goss take a page out of Helm’s book; or will he follow the path of Bill Casey, the DCI of Iran-Contra fame?

Monday, January 02, 2006

New Year Resolutions

By Melissa Boyle Mahle

Like many Americans, I am a fan of New Year Resolutions. A personal plan of action is always a good thing, even if it is not completely realized by the end of the year. The Intelligence Community (IC) could use a few New Year Resolutions as well. There are many positive developments that can and should be built upon. There are some problems as well that are lurking and will likely be points of discussion and controversy in 2006.

Leadership

The standing up of the Office of the Director of National Intelligence (ODNI) and the getting down to work by John Negroponte, General Michael Hayden and the staff is a significant achievement. Their progress has been slow, but the task is enormous. They must dismantle piece by piece and construct anew not just the skeleton but the soft tissue of the IC as well. The entire process of how intelligence flows through the IC is being changed, arguably for the better. We are still not beyond the possibility that the ODNI will just be another bureaucratic layer without value added. The real value, after reform, is the ODNI must be the policy hub for the IC.

Other positive develops include the positioning of Charlie Allen over at DHS. Allan is a community man who thinks strategically. This can only help DHS, which is suffering from a patchwork of agencies, missions and visions.

Stephen Cambone, Undersecretary of Defense for Intelligence, seems to be coming into his own at the Pentagon. The word in the corridors is that his shop is the place to be if you want to be involved in threshold pushing operations. Watching the people trail is a good indicator. One of the top female CIA scientific officers recognized greener pastures in the Pentagon’s intel shop this past year, following in now well-worn tracks from the CIA to DIA and other military intel offices.

Porter Goss is floundering at the CIA, accused by the troops of politicizing intelligence and by outsiders of not using a firm enough hand. On Goss, I had adopted a wait and see approach. I liked what he was saying in terms of a new vision for the CIA. I just wanted to see him implement the changes necessary to realize the vision. I give Goss uneven grades on this front. I was extremely disappointed by Goss’ decision to not hold any CIA officer accountable for poor performance for 9/11. Goss says he took the decision because the officers in question demonstrated dedication and risk-taking after the devastating attacks on our homeland. In other words, institutional loyalty and good effort excuses poor performance.

Did Goss reach his decision with the intention of saving the CIA, an organization where I am honored to have worked for more than a decade? Or did he do it to salvage his reputation inside the walls of Langley? It is certain that giving a pass to poor performance will result in neither. Officers named in the CIA Inspector General report are those who failed to do their jobs and the ones who should be held accountable. They should not be the mentors or roll models for the next generation of spies. Indeed, eschewing accountability will only lead to the destruction of the CIA.

If Goss thinks he will win new friends and supporters by giving CIA officers a pass on poor performance, he is wrong. DCI Woolsey tried this when he decided no one should be held accountable for the Aldrich Ames spying scandal. Ames’s treachery led to the death of at least ten Soviet spies. Woolsey found himself quickly out of a job and the CIA was terribly weakened by a half-decade of political attacks and bureaucratic turf wars that followed. This time we are not talking about 10 foreign spies, but thousands of Americans slaughtered on one day.

Resolutions: Buy into the vision of a new IC that is integrated, committed to excellence, accountable for poor performance and welcoming of innovation.

Policy

2005 is the year that debate on intelligence policy started to re-emerge from the vaults. At least three factors led to this: the pending sunset of certain Patriot Act provisions, congressional reaction to Abu Ghraib abuses and leak of a sensitive NSA collection program.

The Bush Administration has a strong preference to operate in secret and to minimize debate. This has led to growing distrust of government practices and increasing demands for more transparency. Administration officials have recently acknowledged the need to permit debate on a range of topics—no doubt in reaction to the polls. The Administration, however, has resisted permitting a debate on intelligence policy, trying to mischaracterize policy as intelligence activities and therefore secret.

What are the public policy issues? Balancing civil liberties and national security; clear policies on the detention and treatment of prisoners in the global war on terrorism; and the checks and balances on executive authorities related to intelligence.

Negroponte has been conspicuously absent from some of the major policy debates. He is quoted as saying “It’s above my pay grade” when asked about exempting the CIA from the law banning torture. I find this troublesome because the chief intel officer should be the policy go-to guy. He needs to weigh in one way or another, as a voice of the IC. It is understandable that the ODNI is currently focused on process, but that is no excuse to avoid the big policy issues because policy as much as process shapes the capabilities and the overall health of the IC.

Resolutions: Return intelligence policy fully to the world of public policy and make the ODNI the focal point for representing the IC.

Performance

In 2005, there was no major terrorist attack against the US homeland despite the continuing motivation of terrorist groups to do grievous harm. US intelligence agencies continue to identify and neutralize threats, showing the war on terror is far from over.

Intelligence is a lot like war fighting. Winning a lot of skirmishes does not count much if you loose the big battles and as a consequence the war. Americans don’t know much about the IC’s success on the skirmish level, but they do know about 9/11 and Iraqi WMD. The challenges are daunting for continued success: insufficient personnel with experience, a not well-understood enemy in the global war on terrorism and insufficient resources to do everything, everywhere, all the time.

As concerned as I am about CIA capabilities, I believe the FBI is the greater problem. The FBI continues to play lip service to the call to do business in an entirely different way. The FBI does not have a strong enough handle on either counterterrorism or counterintelligence. Its knowledge base on Islamic extremism is poor and there are few efforts to improve it. The Chinese are stealing US technology and running circles around the FBI. The Parlor Maid case is just the tip of the iceberg. Only the 9/11 Commission seems to be asking hard questions about FBI performance and mission suitability—and that a day late and dollar short after giving the issue a pass when they prepared the Commission Report. My real worry is that the US will push down the road dealing with the hard issue of breaking up the FBI and creating a domestic intelligence service until faced with another colossal intelligence failure.

Resolutions: Don’t rest on the laurels of success from 2005; grapple with the unfinished business of degraded capabilities and wrong structures that negatively impact the ability of the IC to identify and pre-empt national security threats.

New Year Wishes

I believe the IC turned an important corner in 2005 on the road to recovery. Let’s be positive in encouraging the trend to continue in 2006 while being prudent about continuing problems. Despite all the controversy, ups and downs, bad press, and leaks, we should not lose sight of the people. To the men and women in the intelligence profession, I wish them success in the New Year and thank them for their service and dedication.