SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2015, Issue No. 54
August 24, 2015

Secrecy News Blog: http://fas.org/blogs/secrecy/

INTELLIGENCE AGENCIES HAVE A "DUTY TO WARN" ENDANGERED PERSONS

Intelligence agencies that discover a threat to a person's life or safety are obliged to alert the intended target in most cases as long as they can do so without compromising intelligence sources and methods, a new intelligence community directive instructs.

A U.S. intelligence agency "that collects or acquires credible and specific information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person or group of people shall have a duty to warn the intended victim or those responsible for protecting the intended victim, as appropriate," the new directive states. "This includes threats where the target is an institution, place of business, structure, or location."

Remarkably, "the term 'intended victim' includes both U.S. persons... and non-U.S. persons."

The "duty to warn" obligation, which in principle dates back at least several decades, was formally established last month by Director of National Intelligence James R. Clapper in Intelligence Community Directive 191, July 21, 2015:

It is not binding in all circumstances, however. Notification of the target would be waived if it "would unduly endanger U.S. government personnel, sources, methods, intelligence operations, or defense operations."

The notification requirement also does not apply in cases where the threat emanates from the U.S. government itself, whether in combat operations or in "covert" targeted killing programs. Thus, the directive states that the requirement would be appropriately waived when "There is a reasonable basis for believing that the intended victim is a terrorist, a direct supporter of terrorists, an assassin, a drug trafficker, or involved in violent crimes."

Likewise, no notification would be required in cases where "The intended victim is at risk only as a result of the intended victim's participation in an insurgency, insurrection, or other armed conflict." Nor is notice needed when the intended victim "is already aware of the specific threat."

The "duty to warn" requirement seems to be an obligation that has been voluntarily assumed by the U.S. intelligence community, perhaps for moral or prudential reasons. In other contexts where there are similar requirements for professionals to breach confidentiality and to warn of credible threats (most notably mental health care), they are rooted in case law. But no comparable legal precedent or statutory requirement appears to exist in the intelligence context that would compel agencies to act in this way. The legal authorities cited in the new DNI directive -- the National Security Act and executive order 12333 -- do not specifically mention the duty to warn.

If necessary to protect sources and methods, "communication of threat information to the intended victim may be delivered anonymously," the new DNI directive says.

Former U.S. intelligence officer Rick Francona recalled being part of a CIA covert action team in northern Iraq in 1995 that was tasked one day to alert an American living there that he had been targeted for death by Iranian Revolutionary Guards for engaging in Christian missionary activity.

Francona and his heavily armed CIA team knocked on the incredulous American's door and introduced themselves: "We're from the State Department."

INTELLIGENCE CONTRACTOR OVERSIGHT, AND MORE FROM CRS

Effective oversight of intelligence community contractors is a particularly difficult exercise since the reliability of official data on contractor activities is uncertain and most of it is classified and inaccessible to outsiders, a new report from the Congressional Research Service explains.

"Contractors have been and are an integral part of the intelligence community's (IC's) total workforce (which also includes federal employees and military personnel). Yet questions have been raised regarding how they are used, and the size and cost of the contractor component."

The new CRS report "describes several initiatives designed, or used, to track contractors or contractor employees. [It also] addresses the questions of whether IC contractor personnel are performing inherently governmental functions and whether the IC's acquisition workforce is equipped to monitor contractors performing critical functions...."

The CRS report itself was prepared without access to classified data on the role of contractors, so it sheds no new factual light on the subject. Instead, it summarizes the recent literature on internal IC contractor management and congressional oversight of IC contractors. See "The Intelligence Community and Its Use of Contractors: Congressional Oversight Issues," August 18, 2015:

Dozens of other new and updated CRS reports were obtained and posted online last week, including these:

The Greek Debt Crisis: Overview and Implications for the United States, August 19, 2015:

China's Currency Devaluation, CRS Insights, August 17, 2015:

Powering Africa: Challenges of and U.S. Aid for Electrification in Africa, August 17, 2015:

Unaccompanied Alien Children: An Overview, updated August 18, 2015:

Mandatory Minimum Sentencing: Federal Aggravated Identity Theft, updated August 20, 2015:

Medal of Honor: History and Issues, updated August 18, 2015:

Sentence for Killing a Bald Eagle Found Too Severe and Unauthorized, CRS Legal Sidebar, August 18, 2015:

Biopower: Background and Federal Support, updated August 14, 2015:

California Drought: Hydrological and Regulatory Water Supply Issues, updated August 14, 2015:

Automatic Continuing Resolutions: Background and Overview of Recent Proposals, August 20, 2015:

"Who is a Veteran?" -- Basic Eligibility for Veterans' Benefits, updated August 19, 2015:

Afghanistan: Post-Taliban Governance, Security, and U.S. Policy, updated August 17, 2015:

Women in Combat: Issues for Congress, updated August 18, 2015:

Comprehensive Nuclear-Test-Ban Treaty: Background and Current Developments, updated August 14, 2015:

Not new, but of renewed current interest is Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents, January 10, 2012:

* * *

The long-term vitality of the Congressional Research Service is threatened by Congress's repeated refusals to appropriate the modest budget increases ($5 million in FY2016) that the agency has requested in recent years. Reductions in the quality of CRS publications and in the depth of staff expertise are foreseeable.

Other congressional support agencies and professional staff face similar curbs on funding, to the detriment of the legislative process.

"Why would Congress cannibalize its own legislative and creative capacity?" ask political science professors Anthony Madonna and Ian Ostrander. See "If Congress keeps cutting its staff, who is writing your laws? You won't like the answer," Washington Post, August 20.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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