The Spies Who Bilked Us
When Russian military forces seized Crimea in March, Sen. John McCain blasted the U.S. intelligence community for not predicting Vladimir Putin’s aggressive reaction to the ouster of Ukrainian President Viktor Yanukovych, calling it “another massive failure.” House Intelligence Committee Chair Mike Rogers echoed McCain’s concerns and vowed to hold hearings to examine what went wrong with our intelligence analysis.
The U.S. annually invests over $70 billion in intelligence operations whose mission is to gather and analyze information necessary to protect the nation’s security. But intelligence failures remain common. Since the terrorist attacks of September 11, 2001 the U.S. has spent trillions of dollars in counterterrorism and military operations, completely reorganizing our homeland defense infrastructure, changing our laws, and establishing a domestic surveillance apparatus J. Edgar Hoover could have only dreamed of. Yet a joint Inspectors General analysis of the inadequate response to the 2011 Russian warning about future Boston marathon bomber Tamerlan Tsarnaev reveals that despite the construction of sophisticated information sharing systems—like the National Counterterrorism Center, more than 70 state and local law enforcement intelligence fusion centers, and the expansion of FBI Joint Terrorism Task Forces—federal agencies still disseminate critical counterterrorism information with “sticky notes.”
Sen. Tom Coburn’s 2012 investigation of intelligence fusion centers, which wasted as much as $1.4 billion in counterterrorism resources with no demonstrable benefit, should have been a warning that such breakdowns were inevitable. And our foreign intelligence services show similar deterioration. Despite their intense focus on the Middle East, intelligence officials admitted missing the 2011 Arab Spring, the largest revolutionary social movement to reshape the political landscape in the region, which largely unfolded openly over social media.
At the same time, massive public leaks of intelligence information—not to mention losses to hostile foreign hackers and spies—show that our spy agencies can’t adequately protect their own data, much less the entire Internet we all depend on. Was intentionally weakening encryption standards really the best decision for establishing long-term U.S. cyber security?
Conservatives don’t typically put their trust in a sprawling, unaccountable government bureaucracy, but the intelligence and national security enterprise has become just that. There are now more than 5 million government employees and contractors holding U.S. security clearances. While the vast majority of these are undoubtedly hard-working and dedicated to our national security goals, can we be so naïve as to believe there isn’t another Robert Hansen or Aldrich Ames lurking among them? And this is not to mention a proliferation of garden-variety waste, fraud, and abuse that inevitably exists in any government endeavor, and is all but ensured in one that operates in near-total secrecy?
Yet even when Congress identifies wasteful and ineffective security programs, it can’t seem to summon the courage to shut them down. In 2010, at the request of Congress, the Government Accountability Office audited the Transportation Security Agency’s behavioral detection program, which purported to identify terrorists through subtle behavioral cues. GAO found the TSA implemented the program, at a cost of $200 million per year, without ever having validated the methodology it uses. Not surprisingly, despite sending tens of thousands of air travelers to secondary screening each year, the program has never detected a terrorist or other threat to aviation. The GAO recommended that Congress cut funding for the program, as it has each year in regular updates to the report, with no effect. At a hearing last year, Rep. Mark Sanford criticized the TSA program for spending “a billion dollars with no result.” An amendment to defund the program failed again.
Americans didn’t know how dysfunctional our intelligence agencies had become before September 11, 2001. But the repeated failures since amply demonstrate that simply expanding their power and inflating their budgets hasn’t made them more effective.
We shouldn’t have to wait for another massive failure before Congress starts a thorough examination of the entire intelligence enterprise; one designed to weed out wasteful and abusive programs and establish sustainable policies that resolve and reduce threats rather than aggravate them. Demanding efficiency and accountability doesn’t impose an unnecessary burden on our intelligence agencies; it is the only way to ensure they are properly focused and effective, and our policies sound. The current piecemeal, post-hoc oversight approach clearly isn’t working. These agencies aren’t going to reform themselves, and one more “how-they-failed” report won’t help.
Our Constitution gives Congress ample authority to act on matters of national security and foreign policy, and to investigate and regulate executive branch activities. But in the decades since World War II, as the intelligence community has swelled in power and scope, Congress has, with rare exceptions, steadily abdicated its responsibility to properly check this most secretive part of our government. There are many explanations for this forfeiture of power, from rising partisanship—where members of Congress increasingly see their role as supporting or opposing the president in power rather than defending the independent authority of their own branch of government—to simple fear that tinkering with national security policy would expose them to blame in the event of another intelligence failure.
Whatever the justification, congressional inaction in this area upsets the careful balance of powers the Framers considered “essential to the preservation of liberty.” The result is an open contempt for congressional oversight and public accountability by intelligence officials today. They regularly neglect to inform Congress of intelligence activities, delay responses to investigative committee inquiries, and even boldly lie without concern for being fired, much less prosecuted.
Senator Feinstein intended to expose CIA obstruction of the Intelligence Committee’s investigation of its interrogation practices, but has instead revealed how weak her committee’s oversight has become. She alleges the CIA didn’t inform the full committee about the program for years after its implementation, then repeatedly provided false information about its efficacy. Only after the CIA destroyed videotapes of the interrogations in 2007 did committee staff finally begin reviewing CIA documents. Yet even after determining that the records showed the program was more brutal than the agency indicated, senators allowed the CIA dictate the terms of their access to the files.
After several years of what appears to have been a Herculean effort by congressional staff in the face of CIA obstruction, and the expenditure of an estimated $40 million, the Committee produced a 6,000 page report that the American public will likely never see. Congress agreed to release only the executive summary, but is still waiting for its declassification to be authorized. Issuing a sanitized summary of an investigative report more than a decade after a program’s implementation isn’t oversight, it’s merely critique.
And congressional supervision of the government’s post-9/11 surveillance practices has fared no better. No piece of legislation received as much public scrutiny and congressional attention as the USA Patriot Act, parts of which required reauthorization in 2005, 2009, and 2011. Yet it took an unauthorized leak of information about its implementation to alert many members of Congress to the government’s secret interpretation of its scope, which allowed the bulk collection of virtually all Americans’ telephone metadata, among other things. No less an authority than the bill’s author, Rep. Jim Sensenbrenner, confirmed that the government’s distorted interpretation far exceeded Congress’s intent when passing the statute.
While the administration likes to say that all three branches of government approved its secret interpretations of the law, it has become clear that intelligence officials have made false and misleading statements to both Congress and the courts regarding the scope and effectiveness of its programs. The Snowden leak proved false Director of National Intelligence James Clapper’s flat denial that the government was collecting data on millions of Americans while testifying before the Senate Intelligence Committee months earlier. And NSA claims regarding the program’s effectiveness in stopping terrorist attacks, which seem to have been uncritically accepted in the closed confines of the Intelligence Committees and the FISA Court, were quickly debunked once exposed to public scrutiny. The government even misled the Supreme Court during arguments to dismiss a constitutional challenge to its surveillance authorities.
Clearly, Congress can’t perform its constitutional obligations without timely access to accurate information. Government officials who obstruct or mislead congressional inquiries, whether over allegations of torture or illegal surveillance, must be held accountable in order to protect the integrity of the legislative process.
It is crucial for Congress to become more assertive, as the intelligence agencies are increasing the stakes in these inter-branch disputes. The CIA’s request for a criminal investigation of the Senate Intelligence Committee staff conducting the review of its interrogation practices demonstrates remarkable hubris, particularly because the internal CIA report it claims staff obtained and handled illegally apparently contradicts official CIA reporting to Congress. The CIA’s effort to bury the internal review appears to be an admission that the agency was using classification and privilege claims to cover false statements to Congress.
Clapper has also issued new intelligence community directives that appears designed to ensure Congress and the American public will get even less information from the intelligence agencies in the future. ICD-119 prohibits intelligence community employees from having any unauthorized contact with the media, even discussions involving only unclassified intelligence matters. The directive uses an expansive definition of ‘media,’ moreover, to include anyone “engaged in the collection, production or dissemination to the public in any form related to topics of national security.” Obviously many advocacy organizations that routinely interact with Congress on national security issues could fit under this broad definition, if not the congressional committees themselves.
The directive is part of the intelligence community’s “insider threat” program, which was initiated in the aftermath of the Wikileaks disclosures and appears more designed to suppress whistleblowers than to find spies. Sen. Charles Grassley, an ardent whistleblower rights advocate, has warned this program could be used to identify and retaliate against intelligence community employees who seek to report waste, fraud and abuse to Congress. Indeed, it may even expose cleared congressional staff to electronic surveillance by the intelligence agencies. Intelligence officials claim the right under the program to subject anyone with a security clearance “across the government” to continuous electronic monitoring, “on the job as well as off.” Given the intelligence agencies’ open disdain for oversight, concerns that such an expansive program could chill congressional investigations of intelligence activities must be taken seriously.
Some characterize these increasing conflicts between Congress and the intelligence community in martial terms. But if it is a war it should be a quick one, because Congress has all the weapons. All it needs to do is use them. In the wake of intelligence leaks the public is demanding reform. In order to get it right, Congress should conduct a broad evaluation of all intelligence policies and practices over two presidential administrations, a review designed to eliminate wasteful and abusive programs, and develop more sustainable and effective policies that the intelligence community won’t need to hide.
Michael German is a Fellow at the Brennan Center for Justice at NYU School of Law and a former FBI agent.