CIA : Between Transparency and Secrecy

Much of what we do must remain secret if it is to be effective. CIA is an espionage organization engaged in the collection and analysis of foreign intelligence. But that does not mean that we operate illegally…

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:

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 and domestic.

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 embrace oversight?

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 be exaggerated.

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 oversight structure.

* * *

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 relationship.

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 analysis.

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 committees.

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 mission center.

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 our adversaries.

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 democratic society.

* * *

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 objectives.

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 and wise.

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 examination.

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 you.

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