CIA : Between Transparency
Remarks of Deputy Director David S.
Cohen Central Intelligence Agency as Prepared for Delivery at the Center on
Law and Security, NYU School of Law “Governing Intelligence” Conference.
Washington DC, April 21, 2016.
Source : CIA.
Good afternoon everyone.
I want to begin by thanking Sam Rascoff and Zach Goldman, NYU
Law’s Center on Law and Security, as well as the Woodrow Wilson Center—and
especially the incomparable Jane Harman—for inviting me to speak on this
crucially important topic of oversight of intelligence.
I have had the honor of serving as CIA’s Deputy Director for
a little more than a year now. Coming into this job from the Treasury Department,
where I oversaw the Treasury’s financial transparency, illicit finance and
sanctions portfolio, I had some sense of what I was getting myself into.
At Treasury, I straddled the worlds of policy and
intelligence. I read raw and finished intelligence products, and saw first-hand
how timely, precise, and insightful intelligence is critical to national
security policymaking and policy execution. We could not have done what we did
at Treasury without the extraordinary intelligence that the Agency and others in
the intelligence community collected, analyzed and disseminated.
Once I arrived at Langley, I found CIA to be even more
impressive than I had imagined. I saw that underlying our finished intelligence
products are hard analytic calls that were the product of full-throated and
robust debate, that many of our intelligence-gathering operations are ready-made
for the silver screen, and that the gadgets our Science and Technology officers
conjure up and create to enable our officers to operate and collect intelligence
in the field are the stuff of great science fiction.
And I also have been deeply impressed that in the conduct of
our core mission—collecting intelligence, producing analysis, and conducting
covert action—CIA officers, from the newest arrivals to the most senior
managers, embrace the principle of intelligence oversight. At headquarters and
in far-flung stations and bases around the world, as our officers work every day
to advance our country’s most important national security interests, they hold
fast to the core values of our democracy – most fundamentally, adherence to the
rule of law and accountability in what we do.
I see this every day. I recognize, however, that what I am
privileged to see from the inside is not – and, indeed, cannot be – quite so
visible to those outside the Agency. That is an inherent feature of a secret
intelligence service. Much of what we do must remain
secret if it is to be effective.
And that is a conundrum for our representative democracy. How
can the American people have confidence that their secret intelligence service
is acting to advance their interests, and is doing so within the bounds of the
law, if they cannot judge for themselves what we do and how we do it?
This is not, of course, a new challenge, nor one that’s
unique to the United States. It is as much a conundrum for other democratic
societies as it is for ours.
So what have we done to address this challenge? Over the
years, our Nation has developed mechanisms that allow the President and our
elected representatives in Congress to maintain oversight of the intelligence
community, and we have instilled within our intelligence community strong,
proactive support for those mechanisms and the oversight they enable. But even
with those mechanisms in place, we still face the question of how to maintain
the proper interaction, and the proper separation, between the executive and
legislative branches of government. And we must still decide how to inform and
educate the American people about complex and sensitive matters. Those
challenges deserve ongoing examination and thorough public deliberation, so I
appreciate the opportunity to participate in this conversation here today.
* * *
Let me begin at the beginning – and that it is to reiterate:
The CIA, from the Director on down, embraces the principle and the practice of
intelligence oversight and accountability. We recognize the inherent tension of
operating a secret espionage agency within a free, democratic society. And so we
do not shrink from oversight; we embrace it.
That doesn’t mean that we never chafe at a particular
Congressional information request, or that we have never gone astray. But from
the very first day a new officer begins his or her career at the Agency, we
emphasize that adherence to the law, which includes Congressional and Executive
branch oversight, is inherent in who we are and what we do.
Let me give you an example. Each month, either the Director
or I swear in new CIA officers in the lobby of our headquarters in Langley –
over the iconic CIA seal on the floor and in view of 113 stars engraved on the
wall to honor of those Agency officers who lost their lives serving our country.
In that solemn setting, new officers raise their right hand and swear to support
and defend the Constitution of the United States against all enemies, foreign
Before we administer the Oath, we emphasize several points –
the crucial role of CIA to our national security, the importance of serving
policymakers while maintaining dispassionate distance from policy itself, the
challenges and opportunities that await our new officers, and – no kidding – the
importance of oversight. In that setting, on day one, we stress that CIA has a
responsibility to act at all times in strict adherence to the law and consistent
with our Nation’s highest values; that every one of us, from the most junior
officer to the most senior, is accountable for what we do; and that oversight by
the President and Congress is essential in how we execute our mission.
Why is that part of the swearing in ceremony, and why do we
First, and most importantly, we recognize that the public
simply cannot scrutinize our activities in the same way that it does federal
agencies outside the intelligence community. To be sure, we do not shield all
that we do from the public. We try to maintain an open public discourse on what
we do for our Nation’s security. And there certainly is no shortage of public
and press interest in what we do.
But at the same time, we don’t publish our latest key
intelligence assessments in the federal register, we don’t issue press releases
touting our latest asset recruitment, and there are no reporters, lobbyists, or
advocacy groups filling the seats at our closed congressional hearings.
There is no denying that we are shielded to some extent from
the “oversight” of the American people – from those whom we serve. Put simply,
there are limits on how transparent we can be and still effectively execute the
mission we’ve been given. Where that line between
transparency and secrecy should be drawn is, of course, a matter of robust
debate. But there is no legitimate disagreement on the basic principle
that for CIA to do the job the American people have entrusted to it, it must
operate largely in secret.
Robust oversight by the President and Congress – in
environments where we can have open, yet still confidential, discussions and
debates about our mission and how we are executing that mission – is the
entirely appropriate adjunct to, and substitute for, traditional oversight by
the people and the press. It is, in short, the right thing to do.
Beyond embracing oversight because it is the right thing to
do, we recognize that oversight makes us better at what we do, which is this:
first and foremost, CIA is an espionage organization engaged in the collection
and analysis of foreign intelligence.
So it might surprise you that some of us bristle when our
work is described as “stealing secrets.” Although it’s a catchy phrase, it does
not do justice to the real work our officers do.
The tradecraft of our officers who are involved in
intelligence collection – the skills, instincts and emotional acumen required to
recruit and run a source, elicit intelligence, and protect an asset for years –
this deserves far better than a simplistic catchphrase implying that our
officers are doing something illegal.
Let me repeat: CIA is an espionage organization engaged in
the collection and analysis of foreign intelligence. On a daily basis, all
around the world, we conduct daring, sometimes dangerous operations. But that
does not mean that we operate illegally. Far from it. We are a disciplined
espionage agency comprised of officers who operate lawfully. Strong oversight
reinforces that discipline and, as I said, makes us better at what we do.
We recognize that no matter how much planning, diligence, and
expertise the exceptionally talented, skilled, brave and creative CIA officers
invest in their work, there is an irreducible element of risk in our operations.
And so the importance of getting it right from the outset and over time cannot
Healthy, robust oversight helps with that. Our oversight
committees, members and staff alike, are intimately familiar with the art and
practice of intelligence; they have years of knowledge and experience in this
arena. Their oversight encourages a culture of introspection. Knowing that we
will be asked tough questions serves to enhance the quality of our activities.
If we can’t convince our oversight committees that our activities are worth the
cost and risk, then maybe we need to reconsider what we’re doing, or how we are
assessing risk, cost and gain.
Finally, oversight also serves to protect our officers. When
our officers are out on the street in some hostile capital meeting with an asset,
emplacing a device as part of a covert action program, or doing any of the
myriad operations that are conducted on a daily basis, they deserve to know that
they have the support of their government – not just from Langley, but also from
the White House and Capitol Hill. If things go wrong—and sometimes they do—the
situation is made even worse if the President or Congress is blindsided.
Thorough oversight and consistent dialogue help ensure we have basic buy-in.
* * *
The hallmark of CIA’s current relationship with Congress is
dialogue—a robust, free-flowing, continuous and respectful exchange of
perspectives. But this was not always the case. Years ago, senior intelligence
officers maintained an attitude toward congressional oversight that today would
be considered less than forward-leaning.
One of CIA’s predecessors, an entity between the World War
II-era Office of Strategic Services and the modern CIA, was known as the Central
Intelligence Group (CIG). Its leadership had a fairly simple attitude toward the
legislative branch. Specifically, the second-in-command of the CIG told his
staff to “never initiate letters to Members of Congress.”
I’d like to say that CIA’s establishment a couple of years
later prompted a real change. But for the first few decades, CIA’s interactions
with Congress were hardly rigorous. In fact, for the first twenty years of CIA’s
history, we had only one person responsible for the relationship with Congress.
Today we have 40.
But in many ways, this laissez-faire approach to oversight
went both ways. It was the famed Senator Richard Russell who, in 1956, told a
Senate colleague that if there were one part of the government whose activities
“had to be taken on faith,” it was CIA.
This was the era of the Doolittle Commission, a review of
Agency operations ordered by President Eisenhower that saw the United States in
a Manichean battle against an implacable enemy: the Soviet Union and its allies.
The dominant attitude was that Soviet expansion was an existential threat, and
to keep the reins loose on clandestine operations designed to combat it.
But this path over the long term was not sustainable for the
Agency, Congress, and the American people. Disclosures in the 1970s of
questionable activities or outright violations of the Agency’s charter damaged
CIA’s reputation and drove public debate.
With many Americans losing faith in the Intelligence
Community, change was required. And from the work of the Church and Pike
Committees emerged the congressional select oversight committees in the Senate
and House, which today are the legislative pillars of America’s intelligence
* * *
Today, our relationship with Congress is marked by daily
interaction and ongoing oversight, both formal and informal. To be sure the
CIA-Congressional dynamic is not always one of complete harmony. But this
tension is to be expected, as it is more generally in the executive-legislative
In fact, would be more troubling if there were never any
tension between the Agency and our congressional oversight committees. If our
relationship reflected earlier genteel harmony of the 1950’s and 60’s, it would
probably mean one side wasn’t doing its job—that either CIA wasn’t being
aggressive enough in the pursuit of its intelligence mission or that Congress
was turning a blind eye. I can assure you, that is not the case.
The foundation for today’s oversight environment is the
statutory requirement for CIA to “keep the congressional intelligence committees
fully and currently informed of all intelligence activities.” In practice, we
meet this legal requirement through extensive and ongoing interactions, most of
which occur outside of formal hearings.
In 2015 alone, our officers participated in nearly 1,000
Congressional engagements. This includes about two dozen formal hearings and
many, many dozens of briefings for members and staff. In addition, we host
monthly briefings at the Agency on our most sensitive covert action programs,
and quarterly briefings on all of our covert action programs. And with every
overseas trip by a delegation from our oversight committees, a cadre of CIA
officers briefs members and staff beforehand to help them prepare, offering
additional opportunities for inquiry into our programs, activities and lines of
In addition to these in-person engagements, every year CIA
provides about 200 written Congressional Notifications (CNs) to our oversight
committees. These CNs, which range from one-pagers to multi-page tracts, are
often highly classified and provide our oversight committees insight into our
intelligence activities, both positive and negative, including our covert action
programs. They can be preceded by oral notifications to give our committees a
“heads-up” about a particularly significant development, and often spark
requests for follow-on briefings.
The other side of the coin is Congress’s consistent
engagement with CIA. Not only does our Office of Congressional Affairs receive
daily phone calls and emails seeking information, but intelligence committee
staffers have badges that grant them access to almost any facility in the
Intelligence Community. Staffers even get VIP Parking at CIA when they come to
visit. In all seriousness, these courtesies illustrate how much we encourage a
cooperative and consistent oversight atmosphere.
As we all were taught, one of Congress’s most powerful tools
is the power of the purse – its authority to appropriate funds and to authorize
how funds are spent. Like all Executive Branch agencies, CIA cannot spend funds
unless they are authorized and appropriated. The law governing CIA further
requires that we cannot spend funds on an intelligence activity unless those
funds are specifically authorized for use on that activity, which makes the
House and Senate intelligence committees that much more powerful. We are in the
midst of the budget process with Congress now, and I can assure you that the
committees take this responsibility very seriously.
But beyond the authorizing and appropriating legislation
itself, the oversight committees also express their oversight through classified
annexes to these bills. These classified annexes contain directions on how we
may spend funds that have been authorized and appropriated, including so-called
“fences” that, on their face, tie our ability to spend appropriated funds to
meeting certain conditions and gaining certain permissions from the oversight
This, I think, is a particularly interesting aspect of our
oversight relationship. Congress has recognized that the classified nature of
our intelligence activities prevents many details from being publicly disclosed
in the body of the authorizing statute or in the public report accompanying it.
Instead, Congress sets forth a detailed set of conditions in
classified annexes. Congress has noted that the classified annexes “have the
same legal force as the report[s]” accompanying the authorizing statute. But
because the annexes, like the reports, are neither voted on by both houses of
Congress nor presented to the President for signature, a constitutional scholar
would say they do not have the force of law.
Nonetheless, Congress treats these classified annexes as law—INS
v. Chadha notwithstanding. And unless a provision runs counter to our statutory
responsibilities or is otherwise infeasible, CIA, as a matter of policy and
comity, treats the classified annex as binding. Doing so affords the proper
respect to the legislature given the classified nature of our activities, and
also allows for flexibility on both sides to arrive at workable solutions. A
truly functioning oversight relationship would be impossible otherwise.
* * *
What I have just described, however, is only part of the
relationship. In fact, the aperture of congressional oversight is far wider than
a narrow focus on just collection and covert action.
As it well should, analysis receives its fair share of
attention from our congressional committees. Senators, representatives, and
their staffers frequently hold our analysts’ feet to the fire, pressing them on
their calls and assessments.
This oversight extends to larger issues facing the tradecraft
of analysis, such as analytic objectivity. In fact, that very issue arose
recently when we established ten mission centers in which we bring together all
of CIA’s talents and capabilities—operational, analytic, technological and
support—into integrated teams to pursue prescribed missions.
Integrating analysts with operations officers generated
concerns that subtle pressure would emerge on analysts to shift their analysis
for the benefit of the operators with whom they were now working in the same
That’s why Congress directed us to provide a detailed plan on
how best to foster analytic objectivity. Many components of the plan were
already in train at the Agency, because analytic objectivity – like independence
from policy agencies and departments – has been and will always be a top
priority at CIA. But Congressional focus on analytic objectivity certainly
helped to bring greater attention to this issue.
To take another example—congressional oversight extends to
the Agency’s relationships with foreign intelligence services. These foreign
liaison partners are vital to CIA’s work. The world is so complex and the
challenges so widely dispersed that, despite our capabilities, CIA cannot do it
all on our own. We need foreign liaison services for a range of reasons, from
helping disrupt terrorist plots to understanding the military capabilities of
Congress sees the fruits of this cooperation in our briefings
and assessments, and they encourage us to help our partners develop their
capacity and capabilities. But we and our oversight committees also are
committed to ensuring that our liaison relationships are consistent with our
values and the law.
Put simply, we need our foreign liaison partners but our
support and our willingness to work with them is not unconditional. When we
discover that individuals associated with a liaison service may have engaged in
human rights abuses or illegal activities, we actively seek to validate those
allegations. If we confirm that such abuses have occurred, we carefully assess
whether US national security imperatives warrant continuing contact with the
service. When they do not – and in some instances they have not – we’ve
terminated the relationship.
But when we decide to continue liaison relationships despite
human rights concerns, we have done so because of the critical intelligence
those foreign services provide, while emphasizing that our partners must respect
human rights. Where appropriate, we develop guidance and training to improve
their conduct, and we may also adjust the nature or depth of our cooperation.
In all of these cases—no matter the result—we keep Congress
informed. We describe the basis of the concerns that arise, whether confirmed or
not, and how we’ve chosen to address the situation.
Now, none of this interaction with Congress is formally
dictated or specifically compelled by law. To the contrary, it is the product of
an ongoing, healthy relationship, one that is conducted with common sense and
civility, and one that serves the paramount interest of accountability in our
* * *
Before concluding, I want to spend just a minute on another
key aspect of oversight – the intra-executive branch oversight of CIA that comes
from the President through the NSC process.
Much of the focus on Presidential oversight of CIA activity
centers on covert action, and for good reason. CIA, as you know, engages in
covert action only when directed to do so in a Presidential finding or a
subsequent memorandum of notification, which establish the objectives of a
covert action program and specify CIA’s authorities in pursuing those
Oversight of covert action comes in a variety of ways,
including the reports CIA prepares for the President through the NSC that
describe both the actions undertaken by CIA in pursuit of the covert action
program’s objectives, as well as assessments of how effective we’ve been in
achieving those objectives. And on a regular basis, CIA’s covert action
performance is the topic of policy meetings at the White House convened by the
NSC staff with relevant participants from the interagency.
But that is just a small measure of the oversight and
direction of CIA exercised by the President.
The President, through the Director of National Intelligence,
oversees the entire intelligence community’s collection priorities through the
National Intelligence Priorities Framework, or the NIPF. To a rather remarkable
degree of detail, this document – which is regularly updated – identifies and
ranks policy priorities for intelligence collection. The DNI is responsible for
coordinating how the various elements of the intelligence community, including
CIA, array collection efforts against these priorities.
Moreover, on a regular basis, CIA’s intelligence activities
of one stripe or another – from operations to analysis – are topics of
discussion among the most senior policymakers in our government. At these
meetings, a range of perspectives and factors are considered when considering
intelligence activities, including the legal foundation for the activity, the
risks to diplomatic and economic relationships if the activity were disclosed,
the anticipated policy value of the acquired intelligence, and, of course,
whether the operation is consistent with US policy objectives and strategy.
There are also numerous less formal, but equally rigorous,
ways that the executive branch conducts oversight, from daily interactions
between senior intelligence officials and senior NSC officials, to regular
in-person meetings between intelligence community chiefs and NSC leadership.
On any given day, moreover, the President and his NSC
leadership read about and are briefed on the intelligence products and analysis
resulting from our operations and activities, providing additional opportunities
and occasions for questioning and scrutiny.
In all of these ways, the President not only exercises
oversight of CIA’s intelligence activities, but CIA and its officers obtain
critical guidance and support for our activities from the White House.
* * *
For CIA officers, rigorous oversight may feel onerous from
time to time; it may make our jobs more complicated and the days a bit longer.
But we know that for the sake and security of our democratic society, we must be
accountable for our actions. And we understand that such oversight is both right
In closing, I’d like to thank you for the opportunity to
delve into a crucial topic that does not often receive the time it deserves.
This is a discussion worth having. This is an issue that requires continued
The debate about the present and future of intelligence
oversight needs to be proactive. Because as President Obama said in January 2014
when rolling out his review of signals intelligence, “for our Intelligence
Community to be effective over the long haul, we must maintain the trust of the
American people, and people around the world… This debate will make us stronger.”
Looking ahead, let’s continue this dialogue. Let’s commit to
the utmost openness about our aims and activities even when the specifics of our
programs demand secrecy.
And let’s push for an informed and accurate discussion about
these difficult yet critical issues. The debate will indeed make us stronger as
we strive to secure both the trust and the safety of the American public.
The people of the United States deserve nothing less. Thank
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