Intelligence: From Secrets to Policy (38 page)

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Authors: Mark M. Lowenthal

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The Espionage Act (1917) has also been used in leak prosecutions. Enacted months prior to the United States’s entry into World War 1, this act covers traditional espionage but is also deemed broad enough to cover leaks, even of information that is not classified but is related to the national defense. During World War I, the act was used to jail antiwar protesters, such as U.S. socialist leader Eugene V. Debs. The Espionage Act was used to convict Samuel L. Morison, a Navy intelligence officer who provided classified imagery to a British publication with whom he had a business relationship. Morison was convicted in 1985 of espionage and theft of government property.
Use of the Espionage Act became controversial in 2006 when it was used as the basis for prosecuting two officials of the American Israel Public Affairs Committee (commonly called AIPAC) who received classified information from a DOD official, Lawrence Franklin, and then passed it on to an Israeli official and a journalist. Franklin pleaded guilty and was sentenced to more than twelve years in prison. But the cases of the AIPAC officials, Steven J. Rosen and Keith Weissman, were the first use of the Espionage Act to prosecute nongovernment officials. The judge in the case refused to dismiss the charges on the claim made by the defendants’ lawyers that the use of the Espionage Act infringed on their clients’ right of free speech, but he also raised questions about the applicability of the statute during the trial.
Another aspect of leaks that became controversial was an offshoot of the Plame/Libby case. In 2006, Libby reported that President Bush authorized him in 2003 to discuss aspects of the then-classified 2002 national intelligence estimate (NIE) on Iraq WMD with a reporter. Although the president can decide to declassify information, Bush’s action seemed to undercut his administration’s complaints about leaking. It can be argued that the president cannot leak because the president also has the right to declassify intelligence, but the motives behind a revelation can be debated, as they were in this case. (U.S. intelligence officials were caught off-guard by the first unclassified acknowledgement that the United States used imagery satellites, which came in a speech made by President Lyndon Johnson in 1967.)
Finally, the Plame leak investigation led to questions about the roles and responsibility of the press with regard to classified information (see chap. 13).
NATIONAL SECURITY LETTERS
 
One investigative technique that has been used in espionage cases, as well as counterterrorism, is
national security letters
(NSLs). Although these have been authorized since 1978 as an exception to the law protecting personal financial data, their existence only became widely known in 2005. NSLs are a type of administrative subpoena—that is, they do not require a judicial order. NSLs are used most often by the FBI but also used by the CIA. NSLs require the recipients to turn over records and data pertaining to individuals, with the added proviso of a gag order—the recipient of the NSL may not reveal its contents or even the fact of its existence.
Since their inception, NSLs have expanded beyond their original provisions to include electronic communications and credit information. The USA Patriot Act, passed after the 2001 attacks, expanded the authority to issue NSLs from FBI headquarters only to field offices, included terrorism as a cause as well as espionage, and eliminated the requirement that the information being sought pertain to a foreign power or its agent.
Several controversies surround NSLs. The most obvious is the fact that they are not subject to judicial review and that they come under a gag order, which raises civil liberties concerns. Second, the use of NSLs has expanded greatly since 2001. According to the Justice Department, the number of NSLs rose to 19,000 annually in 2005, which involved 47,000 requests for information. Third, subsequent internal FBI and Justice Department scrutiny also revealed that some NSLs were issued without the proper “exigent circumstances.” FBI Director Robert Mueller took responsibility for the lapses and apologized, but this was not the first time that the FBI’s management had been called into question in the press and in Congress. It is likely that the use of NSLs will be subject to much greater internal and congressional oversight in the future.
CONCLUSION
 
As VENONA confirms, the espionage threat during the cold war was pointed and obvious, even though some cases of Soviet espionage—such as those of Rosenberg and Hiss—stilt remain controversial to some people. But, as the Ames and Hanssen cases indicated. Russian espionage did not end with the cold war. Neither did U.S. activities against Russia, given the Russians arrested bv dint of Ames’s spying or the source who led to Hanssen. (In 2003, Russia arrested Aleksander Zaporozhsky, a former intelligence officer who had settled in the United States but had been lured back to Russia. Zaporozhsky was sentenced to eighteen years for spying for the United States. Some observers believed that Russia held Zaporozhsky responsible for helping identify Hanssen.) In 1999, the Cox Committee found that China had stolen U.S. nuclear weapons designs during the 1980s, when the two states were tacit allies against the Soviet Union.
Assessing the nature and scope of the espionage threat to the United States may be more difficult in the post-cold war world than it had been before the demise of the Soviet Union, not only because the ideological conflict is over but because the sources and goals of penetrations mav have changed. A 2002 report prepared for Congress listed China, France, India, Israel, Japan, and Taiwan as being among the most active collectors. The most commonly targeted types of intelligence are U.S. military capabilities, U.S. foreign policy, technological expertise, and business plans. Government officials need not be the sole targets. For certain types of intelligence, government contractors may be key. Also, just as the United States relies on liaison relationships to enhance its HUMINT, so do foreign nations. In 2001, Ana Belen Montes, a DIA analyst, was arrested for spying for Cuba. U.S. officials assume that much of the intelligence that Montes provided over seventeen years was shared by Cuba with Russia and possibly other nations. Another 2002 report.
Espionnge against the United States by American Citizens, 1947-2001,
prepared by the Defense Personnel Security Research Center, noted changes in the demographics of U.S. citizens who spied against their country. Since the end of the cold war, spies have tended to be older, to have lower clearances, to be naturalized citizens instead of native-born, and to include more women. Thus, it would be naive to believe that the need for rigorous counterintelligence and counterespionage ceased with the end of the cold war.
KEY TERMS
 
big CI
compartmented
counterespionage
counterintelligence
counterintelligence poly
damage assessment
double agents
graymail
lifestyle poly
little CI
mole
national security letters (NSLs)
need to know
polygraph
responsibility to provide
sleeper agent
FURTHER READINGS
 
Reliable and comprehensible discussions of counterintelligence—apart from mere spy stories—are rare. What follows are among the most reliable sources.
 
Bearden, Milt, and James Risen.
The Main Enemy: The Inside Story of the CIA’s Final Showdown with the KGB.
New York: Random House, 2003.
Benson, Robert Louis, and Michael Warner, eds.
VENONA: Soviet Espionage and the American Response, 1939-1957.
Washington, D.C.: NSA and CIA, 1996.
Doyle, Charles. “National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments.” Washington, D.C.: Library of Congress, Congressional Research Service. Report RS22406, March 21, 2006. (Available at
www.fas.org/sgp/crs/intel/RS22406.pdf
.)
Godson, Roy S.
Dirty Tricks or Trump Cards: U.S. Covert Action and Counterintelligence.
Washington, D.C.: Brassey’s, 1995.
Hitz, Frederick P. “Counterintelligence: The Broken Triad.”
International Journal oj Intelligence and Counterintelligence
13 (fall 2000): 265-300.
Hood, William, James Nolan, and Samuel Halpern.
Myths Surrounding James Angleton: Lessons for American Courrterintelligence.
Washington, D.C.: Consortium for the Study of Intelligence, Working Group on Intelligence Reform, 1994.
Johnson, William R.
Thwarting Enemies at Home and Abroad: How to Be a Counterintelligence Officer. Bethesda
, Md.: Stone Trail Press, 1987.
Masterman, J. C.
The Double-Cross System.
New Haven: Yale University Press, 1972.
National Counterintelligence Executive.
The National Counterintelligence Strategy of the United States.
NCIX Publication No. 2005-10007, March 2005.
_______.
The National Counterintelligence Strategy of the United States of America,
2007. Washington, D.C.: National Counterintelligence Executive, 2007.
Shulsky, Abram N., and Gary J. Schmitt.
Silent Warfare: Undastanding the World of Intelligence.
2d rev. ed. Washington, D.C.: Brassey’s, 1983.
U.S. House Permanent Select Committee on Intelligence.
Report of Investigation: The Aldrich Ames Espionage Case.
103d Cong., 2d sess., 1994.
______.
United States Counterintelligence and Security Concerns
—
1986.
100th Cong., 1st sess., 1987.
U.S. House Select Committee on U.S. National Security and Military/Commercial Concerns with the People’s Republic of China (Cox Committee).
Report.
106th Cong., 1st sess., 1999.
Zuehlke, Arthur A. “What Is Counterintelligence?” In
Intelligence Requirements for the 1980s: Counterintelligence.
Ed. Roy S. Godson. Washington, D.C.: National Strategy Information Center, 1980.
CHAPTER 8
 
COVERT ACTION
 
COVERT ACTION
, along with spying, is a mainstay of popular ideas about intelligence. Like spying, covert action is fraught with myths and misconceptions. Even when understood, it remains one of the most controversial intelligence topics.
Covert action is defined in the National Security Act as “[a]n activity or activities of the United States Government to influence political, economic or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.”
Some intelligence specialists have objected to the phrase “covert action,” believing that the word “covert” emphasizes secrecy over policy. (The British had earlier referred to this activity as special political action—SPA.) The distinction is important, because even though these activities are secret, they are undertaken as one means to advance policy goals. This cannot be stressed enough. Proper covert actions are undertaken because policy makers have determined that they are the best way to achieve a desired end. These operations do not—or should not—proceed on the initiative of the intelligence agencies.
During the Carter administration (1977-1981), which exhibited some qualms about force as a foreign policy tool, the innocuous and somewhat comical phrase “special activity” was crafted to replace “covert action.” The administration thus substituted a euphemism with a euphemism. But when the Reagan administration came into office, with different views on intelligence policy, it continued to use “special activity” in its executive orders governing intelligence.
Ultimately, what covert activities are called should not matter that much. What is significant is that in making changes in appellation the United States reveals a degree of official discomfort with the tool.
The classic rationale behind covert action is that policy makers need a
third option
(yet another euphemism) between doing nothing (the first option) in a situation in which vital interests may be threatened and sending in military force (the second option), which raises a host of difficult political issues. Not everyone would agree with this rationale, including those who would properly argue that diplomatic activity is more than doing nothing without resorting to force.
As with counterintelligence, a pertinent question is whether covert action was a product of the cold war and whether it remains relevant today. Covert action became—under the leadership of Director of Central Intelligence (DCI) Allen Dulles during the Eisenhower administration (1953-1961)—an increasingly attractive option (see chap. 2). It had both successes and failures but was seen as a useful tool in a broad-based struggle with the Soviet Union. In the post-cold war period, situations could arise—involving proliferators, terrorists, or narcotics traffickers—in which some sort of covert action might be the preferred means of action.
THE DECISION-MAKING PROCESS
 
Covert action makes sense—and should be undertaken—only when tasked by duly authorized policy makers in pursuit of specific policy goals that cannot be achieved by any other means. Covert action cannot substitute or compensate for a poorly conceived policy. The planning process for covert action must begin with policy makers justifying the policy, defining clearly the national security interests and goals that are at stake, and believing that covert action is a viable means as well as the best means for achieving specified ends.

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