from the FAS Project on Government Secrecy
Volume 2013, Issue No. 95
November 4, 2013
Secrecy News Blog: http://blogs.fas.org/secrecy/
- ESTABLISH "NO SPY ZONES"? CURRENT LAW COULD MAKE IT HARD
- INTELLIGENCE COLLECTION AND THE RULE OF LAW
- THE CIA "FAMILY JEWELS," THEN AND NOW
ESTABLISH "NO SPY ZONES"? CURRENT LAW COULD MAKE IT HARD
Disclosure of U.S. intelligence surveillance activities in Germany and other allied countries has aroused angry public reaction in those countries, and has prompted discussion of the possibility of negotiating "no spy zones" abroad in which certain types of intelligence collection would be renounced and prohibited.
Some have spoken of extending to Germany or other countries the "Five Eyes" agreement that has long existed among the US, the UK, Canada, Australia and New Zealand to share intelligence, and not to spy on each other.
But a rarely-noted statute could make it difficult for any U.S. administration to achieve an international agreement involving binding new limits on intelligence collection against a foreign country, unless Congress enacts the limitation itself.
In the FY 2001 intelligence authorization act (P.L. 106-567, sect. 308), Congress said that the imperatives of U.S. intelligence gathering are to be understood to take precedence over any treaty or international agreement:
http://www.intelligence.senate.gov/laws/pl106-567.pdfBy way of explanation, the Senate Intelligence Committee said in a 2000 report: "There has been a concern that future legislation implementing international agreements could be interpreted.... as restricting intelligence activities that are otherwise entirely consistent with U.S. law and policy."
"No Federal law enacted on or after the date of the enactment of the Intelligence Authorization Act for Fiscal Year 2001 that implements a treaty or other international agreement shall be construed as making unlawful an otherwise lawful and authorized intelligence activity of the United States Government or its employees, or any other person to the extent such other person is carrying out such activity on behalf of, and at the direction of, the United States, unless such Federal law specifically addresses such intelligence activity."
At a minimum, this provision appears to complicate any such restriction on intelligence activities that is advanced by international agreement, unless it is explicitly affirmed by Congress itself.
The notion of creating and incrementally expanding "no spy" zones has some history. In a 1996 op-ed, for example, former U.S. Ambassador Robert E. White proposed that the U.S. explore the possibility on a trial basis:
"One reform might be to select a specific region of the world -- for example, Central America -- as a testing place. Withdraw all CIA staff from these countries. Let the National Security Council charge our career diplomats with fulfilling Washington's intelligence requirements. Should Foreign Service officers prove capable of meeting all intelligence needs, then gradually extend this beneficial practice to other countries through pacts of reciprocal restraint by which signatories agree not to spy on or engage in covert action against the other. In order to be eligible to sign such a pact with the United States, the other nation would have to meet minimal standards of openness." ("Call Off The Spies," Washington Post, February 7, 1996).
But even in the post-cold war, pre-9/11 interlude, this proposal did not find a receptive audience, and no such experiment was attempted.
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?"
THE CIA "FAMILY JEWELS," THEN AND NOW
In 1973, the Director of Central Intelligence ordered CIA officials to prepare a descriptive account of all CIA activities that were "outside the legislative charter of this Agency," which is to say unauthorized or illegal. The purpose of the exercise was to identify operations that had "flap potential," meaning that they could embarrass the Agency or embroil it in controversy.
The resulting 700-page CIA compendium of unlawful domestic surveillance, wiretapping, mail opening and detention actions became known as "the family jewels." It helped to inform and to substantiate the investigations of intelligence in the 1970s. The document was finally declassified (with some redactions) in 2007 and was released to the National Security Archive, which has posted it here:
In a new book entitled "The Family Jewels: The CIA, Secrecy, and Presidential Power" (University of Texas Press, 2013), historian John Prados reviews the origins and consequences of the family jewels document and the operations described in it.
The thrust of Prados' book is that the CIA family jewels are not simply relics of a discrete historical period, but rather that they are exemplars of a recurring pattern of intelligence misconduct. Many of the specific abuses of the 1970s, he argues, can be understood as archetypes that have been manifested repeatedly, up to the present day.
As a category, "family jewels," then and now, involve violations of legal or moral norms, shielded by official secrecy. These operations tend to expand in scope until secrecy fails, for one reason or another, and then the public controversy which had been deferred explodes with redoubled force.
"Family Jewels are characterized by activity that goes beyond [legal] boundaries, refusal to rein in the operators, and then covering up the behavior." (p. 57) "One crucial aspect is that projects are relatively easy to initiate, but then very difficult to shut down." (p. 321)
"Perhaps the most disturbing aspect of all is that Family Jewels seem to have a tendency to replicate, suggesting that abuse fulfills some functional purpose." (p. 322)
So, according to Prados, unlawful domestic surveillance in the Vietnam era returns as extralegal surveillance in the war on terror. The abusive interrogation of a suspected CIA mole in the 1960s finds an echo in the CIA's post-9/11 interrogation practices. All the while, secrecy and selective disclosure are used to shape and manage public perceptions.
"There was a logic to the way Family Jewels evolved," he writes, and his interesting new book elaborates on that theme.
* * *Postscript: It was startling to be reminded by Prados that the Federation of American Scientists was on the CIA "watch list" to have its mail intercepted and read by the Agency in the 1960s and early 1970s, along with the American Friends Service Committee, author John Steinbeck, and other questionable types (p. 75).
In 1971, then-FAS President Jeremy J. Stone triggered high-level anxiety at CIA when he wrote a letter to the Postal Service inquiring whether "any other agency" was being permitted to open U.S. mail. The letter generated intense deliberations among CIA leadership, and the program was terminated two years later. Stone presented his account of that episode in a chapter of his memoirs here:
See also "The CIA's Mail Cover: FAS Nearly Uncovered It," by Robert Gillette, Science, June 27, 1975:
Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.
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