https://americanmind.org/essays/abolish-the-cia/
The Claremont Institute
The American Mind
Essay
Abolish CIA & FISA
How to defend the Republic against the Deep State.
Angelo Codevilla
02.12.2020
This is the first in The American Mind’s new Rethinking Policy series.
Throughout 2020 we are publishing essays that boldly reframe, reorder, and
reprioritize our political goals in order to directly address the real
challenges of our time. These essays are intended to spur clear, sharp
discussions that rid us of obsolete ideological frameworks and point towards
viable paths forward. Amid today’s realignment, we must discern and articulate
vital principles and national purpose free of the ideological encumbrances of
the past. —Eds.
America’s Intelligence agencies are the deep state’s deepest part, and the most
immediate threat to representative government. They are also not very good at
what they are supposed to be doing. Protecting the Republic from them requires
refocusing them on their proper jobs.
Intelligence officials abuse their positions to discredit opposition to the
Democratic Party, of which they are part. Complicit with the media, they
leverage the public’s mistaken faith in their superior knowledge, competence,
and patriotism to vilify their domestic enemies from behind secrecy’s shield.
Pretenses of superior knowledge have always tempted the Administrative State’s
officials to manipulate or override voters. Hence, as Justice Robert H. Jackson
(who served as chief prosecutor of the Nuremberg trials) warned, they often
turn their powers against whomever they dislike politically, socially, or
personally and try to minimize the public’s access to the bases upon which they
act.
But only the Intelligence agencies have the power to do that while claiming
that scrutiny of their pretenses endangers national security. They have
succeeded in restricting information about their misdeeds by “classifying” them
under the Espionage Act of 1921. Thus covered, they misrepresent their opinions
as knowledge and their preferences as logic. Thus acting as irresponsible
arbiters of truth at the highest levels of American public life, they are the
foremost jaws of the ruling class vise that is squeezing self-rule out of
America.
As Senator Charles Schumer (D-NY) truly told President Trump, “Let me tell you,
you take on the intelligence community, they have six ways from Sunday at
getting back at you.” As we shall see, Intelligence officials have proved
Schumer correct.
What follows begins with an overview of the threats today’s intelligence
agencies pose to self-government in America.
Next, it touches on U.S. intelligence’s dismal professional record, and
suggests that the measures needed to refocus them on professional performance
would also separate them from domestic politics.
In sum, we find:
• CIA is obsolete. Cables show agents’ intelligence takes are inferior
to diplomats’. Agent networks are unprotected by counterintelligence. FBI
success at counterintelligence ended when the Bureau was politicized and
bureaucratized in the 1970s. CIA bottlenecks and incompetently controls
strategic intelligence, while the Army and Marines show demonstrable tactical
superiority.
• As a result, CIA is ideologically partisan. Its strength is in
leading or joining domestic campaigns to influence public opinion. FBI has
followed suit.
• Senior intelligence officials were the key element in the war on
Donald Trump’s candidacy and presidency. CIA used meetings that it manufactured
as factual bases for lies about campaign advisors seeking Russian information
to smear Hillary Clinton. Intelligence began formal investigation and
surveillance without probable cause. Agents gained authorization to
electronically surveil Trump and his campaign and defended their bureaucratic
interests, sidelining Lieutenant General Michael Flynn and denying or delaying
Trump appointments and security clearances.
• Partisanship produces failure. FISA has incentivized political abuse.
“Profiling” has failed repeatedly in high-profile cases like the Atlanta
Olympics bombing and the anthrax mail attacks. Perjury trapping has become
commonplace.
Finally, we outline the steps that presidents and Congress might take to
improve matters:
• FISA must be repealed legislatively or through Constitutional
challenge in court. It unconstitutionally mingles judicial and executive power
in secret. It gave Intelligence a blank check. Hardly “an indispensable tool”
for national security, it is now indispensable for partisanship. Broad
consensus exists for a legislative “fix,” but none is possible. The secret
court’s existence, the heart of the law, allows partisan bureaucrats and allied
judges to do what they want in secret.
• Functions currently performed by CIA should be sheared down. Data
infrastructure and consultant networks should be eliminated. Bipartisan
opposition to the Intelligence threat should use fierce resistance and lobbying
from Intelligence as evidence of why cuts are in the national interest.
• CIA must be disestablished. Its functions should be returned to the
Departments of State, Defense, and Treasury. FBI must be restricted to law
enforcement. At home, the Agencies are partisan institutions illegitimately
focused on setting national policy. Abroad, Agencies untied to specific
operational concerns are inherently dangerous and low-value.
• Intelligence must return to its natural place as servant, not master,
of government. Congress should amend the 1947 National Security Act. The
President should broaden intelligence perspectives, including briefs from
State, Defense, and Treasury, and abolish CIA’s “covert action.” State should
be made responsible for political influence and the armed services for military
and paramilitary affairs.
Sword and Shield
Roughly one third of the U.S government’s $80 billion annual budget for
intelligence is devoted to the military’s “Intelligence-Related Activities.”
These are technical programs to surveil military targets and connect the
information to weapons. Generally speaking, their focus ensures their
usefulness. Professional and political dysfunction, however, are rife in the
other two thirds, the “National Intelligence Program.” This is our subject.
Intelligence is an instrument of conflict. It is knowledge (or pretense
thereof) that can help one force or team at the expense of another. But the
gathering and management of secret information naturally tempts those in charge
of it to marshal truths or lies to hurt competitors within their own side as
well. That is why prudent statesmen have curbed such temptations by
subordinating Intelligence to government operations that deal with foreigners.
By nature, Intelligence is not independent. It is a function defined by the
operations it serves. That is why wise statesmen have considered Intelligence
agencies that are un-tied to specific operational concerns to be inherently
dangerous, as well as not so useful in foreign and military affairs. When the
U.S. established CIA as an agency responsible only to the president, it broke
new ground. Nothing concerned the authors of the 1947 National Security Act
that established it so much as preventing it from interfering in domestic
matters.
Yet, ab initio, CIA’s founding generation concerned itself with making national
policy, arguably more than with anything else, and transmitted that concern to
its successors. Today’s meddling in elections and trying to overturn their
results is a logical consequence.
Police Intelligence is analogous. Statesmen manage its temptations by keeping
it focused on crimes defined by law. Until the 1960s, the FBI’s focus on
investigating violations of statutes, and the “cop mentality” with which it
dealt with national security issues, limited its interference in politics to
gathering bits of dirt on politicians. By the 1970s, however, the FBI was
joining CIA in supporting the causes and prejudices of its political homologues.
Today these Agencies’ naked threat to the president of the United States,
conveyed by the opposition party’s leader, shows a power grab so big that,
unless crushed, it puts them on the path trod by the Roman Empire’s Praetorian
guard. Like the Roman Emperor’s supposed guardians, they claim to protect the
City. But, as Attorney General William Barr noted, they have come to identify
“the national interest with their own political preferences,” feeling that
“anyone who has a different opinion” is somehow “an enemy of the state.” They
now support their party in seizing power, “[convincing] themselves that what
they’re doing is in the higher interest, the better good.”
In short, CIA and FBI have become instruments of partisan power.
None of this, of course, has anything to do with the natural, proper functions
of Intelligence.
The Soviet Cheka (KGB), the Nazi Gestsapo, the Chinese Communists’ Intelligence
service (which they called “the teeth of the dragon”) as well as their
contemporary epigones, are not about knowledge—not even about discovering who
the regime’s enemies are. They are weapons—what the Soviets called the Party’s
“sword and shield,” made to hurt whomever the Party designates as enemies.
Because the power to hurt people unaccountably is tyranny’s quintessential
tool, competent tyrants limit such agencies’ powers by periodically purging
them.
Power in America
Although a growing amount of the U.S. Intelligence agencies’ power comes from
the kind of identification with the ruling party and class that is
characteristic of totalitarian regimes—media, judiciary, etc.—in America it is
ultimately founded on the public’s, especially the conservative sector
thereof’s, acceptance of them as expert, impartial, brave public servants.
Changing that perception is prerequisite to any and all reform.
The U.S. Intelligence agencies’ record shows that they are the opposite:
professionally incompetent and politically dysfunctional. That record’s
exposure, demystifying Intelligence, would make it possible to return the
Agencies to their natural, proper functions.
To firmly subordinate foreign Intelligence to military and diplomatic
operations we must disestablish CIA and return its functions to the Departments
of State, Defense, and Treasury. Since the FBI’s involvement in politics—and
especially its justification thereof—also follows to some extent from its
involvement in foreign affairs via anti-terrorism, re-establishing the
distinction between Intelligence and law enforcement is essential. We must also
repeal some of the laws and regulations that lately have empowered the
Agencies’ misbehavior, notably the 1978 Foreign Intelligence Surveillance Act.
All this is now possible because, in recent years, the Agencies’ behavior has
raised opposition on the political Right as well as on the Left.
Professional Dysfunction
CIA never did and never could fulfill the expectations placed on it.
Nothing could be farther from the truth than the supposition that its agents
penetrate the world and have access to its secrets. 98% of CIA “case officers”
are under “official cover,”—mostly pretending to be diplomats. Hence, they are
known as collectors of information for the U.S. government, and are limited to
the social circles of U.S. government employees. The other 2% pretend to be
working for U.S. companies.
Studies of cables from CIA stations show that the persons these officers claim
as “agents” are no such thing, and that their “take” is inferior in quality to
that of U.S. diplomats. Most important, these so-called agent networks are not
protected by anything that respectable professionals would call
“counterintelligence,” i.e., quality control. So eager is CIA for anything that
looks like agent information that it takes literally anything that looks like
agent information and calls it good.
Often, what it gets is deadly disinformation. Consider: In December 2009, an
“agent” walked into a meeting of CIA case officers and blew everyone to kingdom
come. For the previous year and a half, CIA had relied on this agent’s
information to order drone strikes killing God knows how many people whom he
had falsely fingered as America’s enemies.
CIA’s analytical acumen is worse than carelessness. So much does CIA
concentrate on spinning information to serve its own policy preferences that it
cares little for accuracy. The higher up the chain any of its products go, the
less fact and the more spin they contain. I once attended one of its
top-secret, codeword-protected briefings on the Iran-Iraq war, in which the
briefers referred to a map of the region which mis-labeled Iraq and Syria. As
usual, the facts were window dressing for the spin.
CIA jealously guards its prerogative to well-nigh monopolize the flow of
Intelligence to the president, Congress, and (via leaks) the public. It sets
the subjects of and has the final word on single “national Intelligence
estimates” (NIEs)—official versions of foreign realities. Seasoned observers
can safely bet that these will come at a time and be written in a manner to
bolster the Democratic party’s position on pending foreign policy questions.
Reality be damned.
Between 1963 and 1978 annual NIEs on Soviet strategic forces stated that the
Soviets would not try to match U.S. missiles’ numbers. When they matched them,
the NIEs stated that they would not exceed them substantially. When they
exceeded them substantially, the NIEs said that they would not equip them for
counterforce warfare. When they so equipped them, the NIEs said that this did
not matter.
As the U.S. government debated what to do about Iran’s nuclear program, CIA
promulgated a special NIE that said that Iran had given up work on nuclear
weapons. The team specially selected to write it were persons with a history of
advocating leniency to Iran. Nor is this bias new: In 1950, CIA weighed in
against General Douglas MacArthur on Korea policy both within the U.S.
government and by supplying material for columns against his views by the New
York Times’s James Reston.
The CIA’s bias is not mere incompetence. For more than a decade—during which,
thanks to the treason of its own Aldrich Ames, the entire U.S. agent network in
Moscow was under KGB control—CIA analysts still passed the “take” from that
network to the president because, according to the Inspector General’s report,
the analysts thought that the president should be acting as if these reports
were true.
This is the same CIA that insisted for years that the GDP of East Germany—where
whole families used to have to share a single tea bag and bananas were
luxuries—was equal to that of West Germany, and that the Soviet Union’s ratio
of military spending to GDP was the same as America’s. It was at least five
times ours.
All of this is to say that, as regards strategic intelligence, CIA is usually
worse than useless. For tactical intelligence, it is largely irrelevant.
Intercepts of foreign communications are the one most useful source of tactical
intelligence. NSA and the military do that. CIA often gets in the way of the
military’s own needs for intelligence. Over the years, CIA has successfully
lobbied Congress to prevent the military services from developing their own
human collection networks, despite the fact that CIA’s own human assets are
almost completely irrelevant to military needs.
Probably the only good result of the “war on terror” has been the Army’s and
Marines’ forced resumption of responsibility for their own Intelligence,
although restricted to the places where they must fight. The military services
were always better equipped for human Intelligence because their officers—but
especially their enlisted—are far more diverse racially, more versatile
linguistically, and incomparably more accepting of personal risk than CIA’s
case officers. The disparity is such that, in the early 2000s, CIA simply took
over Army personnel, individually and as units, and used them for infiltrations
of various kinds that its own people could not do and would not risk.
What, then, is CIA good for?
Its founding myth combines a historical falsehood with reference to technical
circumstances that have not existed for at least a generation.
In 1947 and since, CIA’s advocates have argued that the surprise of Pearl
Harbor happened because—although the information to indicate that Japan would
attack Hawaii at 7am on December 7 existed in many pieces—no agency existed to
put them together, to “connect the dots.” Had a place of central analysis
existed, the disaster would have been avoided. Nonsense.
Our Navy had broken the Japanese diplomatic code and, from a succession of
Tokyo’s messages to its Washington embassy, had concluded that the attack would
happen in the place and at the time when it did. The Navy warned the White
House and the War Department in time. But the latter’s warning to Pearl Harbor
was sent by routine, and sat in Admiral Kimmel’s mailbox as the attack took
place.
The truth that analysis of Intelligence must include a multiplicity of sources,
and that a central repository of information is needed for that, was always the
strongest argument for the existence of some sort of central facility where
“all source analysis” could be done. But, since at least the 1980s, computers
have made it possible and imperative for all analysts, regardless of their
location, to access everything securely. Nowadays, ironically, CIA’s insistence
on managing the access and distribution of information is the biggest barrier
to universal, all-source Intelligence analysis.
Today, CIA is good for confidential meetings with the New York Times,
theWashington Post, NBC News, etc., through which it joins—if it does not
lead—campaigns to shape domestic American opinion.
What is the FBI good for?
Once upon a time, FBI foreign counterintelligence officers were cops first.
Like all good cops, they knew the difference between the people on whose behalf
they worked, and those who threaten them. They had graduated from places like
Fordham, a Catholic, blue-collar university in the Bronx. Like T.V.’s Sergeant
Joe Friday, they wore white shirts and said yes, sir, yes, ma’am. Unlike CIA
case officers, FBI officers mixed with the kinds of people they investigated,
and often went undercover themselves. The FBI jailed Capone and dismantled the
Mafia. Because it used to take counterintelligence seriously, it was able to
neutralize Soviet subversion in the USA. The old joke was that, in any meeting
of the U.S. Communist Party or of its front groups, a majority of attendees
were FBI agents. The only U.S. Intelligence penetration of the Kremlin was the
FBI’s recruitment of a U.S. labor activist whom high-level Soviets trusted.
In the late 1970s, that began to change. Director William Webster (1978-87)
refused to back up the officers who had infiltrated and surveilled the New
Left’s collaboration with the Soviets against America in the Vietnam War.
Webster also introduced contemporary political correctness into the FBI. Asked
by the Senate Intelligence Committee why his FBI had neither infiltrated nor
disrupted the Jim Jones cult that resulted in the deaths of 900 Americans in
Jonestown, Guyana, he answered that he would no more have interfered with that
religion than with the Catholic Church. Not incidentally, the Jim Jones cult
was associated with the Democratic party.
Thus FBI officers became standard bureaucrats who learned to operate on the
assumption that all Americans were equally likely as not to be proper targets
of investigation. They replaced the distinctions by which they had previously
operated with the classic bureaucratic imperative: look out for yourselves by
making sure to please the powerful.
Webster’s FBI joined the ACLU as the principal sponsor of the 1978 Foreign
Intelligence Surveillance Act (FISA), which judicially pre-cleared all
electronic surveillance operations through ex parte secret proceedings, despite
warnings that such pre-clearance amounts to warrants for warrantless
surveillance, and hence that it incentivizes political abuse.
The directorships of William Sessions and Louis Freeh, ending in 2001, did
nothing to slow the FBI’s evolution along these lines. Reliance on
pseudo-scientific “profiling” vastly reduced the felt need for scruples.
Thus did the Bureau practically convict an innocent man, Richard Jewell, of
having bombed the 1996 Atlanta Olympics.
From the beginning, the FBI’s “profiling” process concluded that no foreign
government or entity had been responsible for the dispatch of letters from a
post office near where the 9/11 hijackers had lived containing weapons-grade
anthrax. Rather, they claimed the attacks that killed five and injured 17
Americans had been the work of a lone, white, conservative scientist.
Thus it pursued and nearly broke one Steven Hatfill, whose lawsuit the
government subsequently settled for $5.8 million. The FBI then turned its
attention to someone else who fit its profile, Bruce Edward Ivins, whom it
never charged but whom it ruined and hounded into suicide. After which it
declared him guilty, but refused to make public the evidence on which it had
reached its conclusion. Classified, you know? No one was ever charged with the
crime. This matter defined Robert Mueller’s (2001-13) directorship.
The Bureau’s increasing adoption of military weapons and tactics further
tempted its officials to shortcut intelligence for the sake of, well, war
against disfavored persons and movements. In 1992 the Bureau conducted an
11-day war against the Randy Weaver family in a remote Idaho cabin, in which
one law enforcement officer was killed along with the Weavers’ 14-year-old son,
and which ended with an FBI sniper killing Mrs. Weaver with baby in arms—and
with an angry jury acquitting Weaver. A year later, the FBI ran another war
against a religious cult in Texas that cost four lives.
And, oh yes, the FBI has protected America against such dangerous characters as
Martha Stewart, Lewis Libby, and General Michael Flynn, by perfecting the
technique of “perjury trapping” (accusing someone of perjury by contrasting the
target’s recollections with someone else’s) whoever is foolish enough to speak
with its Special Agents.
Thus did the FBI become the politically weaponized, domestic danger it is today.
Political Dysfunction
The Intelligence agencies were the key element of the ruling class’s support of
the Democratic Party in the 2016 election. Its senior officers, regarding
themselves as guardians of their class’s right to rule, waged war on Trump’s
candidacy.
There being no facts on which to base charges of Trump’s illegitimacy in
office, the Agencies strove instead to create “predicates” for investigations,
the very existence of which would substitute for facts and provide the bases
for media accounts of Trump’s villainy. Since Trump was elected, the Agencies
have been the indispensable element of the ruling class’s “resistance.” Through
the media, they have defamed him using their hoary ploy: You must believe us
because what we say is based on classified information. For that reason, your
demand for corroboration threatens National Security.
CIA was first and foremost. Circa April 2016, it “vectored” some of its
longstanding assets, including Stefan Halper in Britain and Joseph Mifsud in
Italy, to approach low-level Trump advisers Carter Page and George
Papadopoulos, respectively. Note: these agents were not seeking information.
The meetings they initiated served as the factual bases for the outright lie
that these advisers, and hence Trump, were involved in obtaining information
from Russia to smear Hillary Clinton. This is the “narrative” that CIA conveyed
to the media, whose renditions thereof would serve as a “predicate” (i.e. as a
watered-down substitute for “probable cause) to begin a formal investigation
that would lead to more stories and lend further public force to the
“narrative”: Trump as a Russian agent.
That narrative having taken root in the media by the summer of 2016, the
Agencies initiated a formal counterintelligence investigation of the Trump
campaign, along with a criminal investigation of him. This involved
authorization to conduct electronic surveillance of the campaign and of him.
But by this time, Intelligence surveillance of Trump had already been going on
for months under Sec. 702 of the 1978 Foreign Intelligence Surveillance Act.
Using this legal vehicle, Trump had been the real target though the
surveillance was aimed nominally at the Russians. This is what Admiral Mike
Rogers, head of the National Security Agency, told the president-elect on
November 16, 2016, that caused him to move his transition headquarters to his
NJ golf club.
It is essential to note that well before Trump was elected the extensive
surveillance to which his campaign had been subjected had proved to U.S.
Intelligence that neither he nor his had ever dealt with the Russians in any
way about the election. None of the subsequent “investigations” have unearthed
anything that the Agencies did not already know months before November 2016.
Nevertheless, these “investigations,” based on the “narrative” that Trump had
colluded, continued. They were not discovering facts. They were providing
pretexts for accusations.
The supposition that the evidence exists in classified form remains the
official excuse for the ruling class’s “resistance” to the Trump
administration, and a feature of the Democrats’ impeachment of him. Obviously,
such “investigations” by “Intelligence” are about acting as the “sword and
shield” of the ruling party and of the class it represents by spreading
political lies.
The Intelligence agencies’ bureaucratic/corporate interests also contributed to
their war on Trump.
Trump’s primary foreign policy adviser during the campaign, Lieutenant General
Michael Flynn, had been director of the Defense Intelligence Agency. Like other
directors of DIA, he had developed antipathy for CIA, and supported plans for
removing it from its paramount role in the Intelligence Community. As Trump’s
prospective National Security adviser, he would have implemented those ideas.
Flynn was also privy to the details of the Obama administration’s clandestine
activities in Libya that had led to the embarrassing destruction of the U.S.
mission there with the loss of four American lives.
Whatever damage could be done to Trump’s election prospects or eventual
legitimacy, “getting” Flynn was a priority unto itself. On November 10, 2016,
in a highly unusual act of interference with a successor, and almost certainly
at CIA Director John Brennan’s suggestion, Obama warned Trump against hiring
Flynn. On January 24, just after the inauguration, FBI agents interviewed Flynn
about a wholly legitimate conversation with the Russian ambassador and, with
the transcripts of the intercepts thereof in hand, led him into recollections
of that conversation inconsistent with the transcript—on the basis of which he
was charged with lying to a federal investigator, ruined financially, and
forced to plead guilty to save his son from indictment.
The intelligence agencies’ hostility, and the black eye of Flynn’ s indictment,
impacted the first round of Trump’s personnel choices and forced him to look
over his shoulder.
No sooner had Trump begun appointing officials than the CIA began to
effectively veto his choices by denying them security clearances—in the
prototypical January 2017 case of NSC official Michael Townley, because he had
been critical of the Agency. The FBI slow-walked investigations for security
clearances.
No one disputes that any President has plenary authority to grant and remove
clearances. But Trump chose to defer to the Agencies. Trump also deferred to
the Agencies with regard to what documents are or are not legitimately
classified, giving them free rein to “leak” their versions thereof to the news
media and to retreat behind security classification’s shield.
Presidential policies are only words, unless implemented by people committed to
them. But as a result of this deference to his enemies, three years into the
Trump administration only a fourth of presidential positions have been filled
and Trump hops on one leg instead of running on four. At this rate, the Trump
administration is sure to end without ever really having existed—which is the
idea.
In sum, it is difficult to overstate the effect of the intelligence agencies’
participation in the “resistance.” Why Trump has suffered their behavior is
irrelevant.
FISA and Official Secrets
The 1978 Foreign Intelligence Surveillance Act is not least among the
incentives that have contributed to the U.S. Intelligence agencies’
professional and political dysfunction. One of the unintended consequences of
secret judicial imprimaturs on investigations is that the FISA courts confer
the status of official secrets on the results. At the same time, the U.S.
government has been claiming that the Espionage Act demands that classified
information be afforded something like the deference mandated by Britain’s
Official Secrets Act. All this has empowered and emboldened bureaucrats.
By the late 1970s the intelligence bureaucracies—CIA, FBI, NSA—had become leery
of conducting any electronic surveillance, even of Soviet Bloc embassies and
persons, because some American leftists who had worked with said embassies
against the U.S. in the Vietnam war had filed lawsuits against prominent
individuals in these bureaucracies. Hence the agents clamored for judicial
warrants to protect them from lawsuits in national security cases in the same
way they are protected in cases of wiretaps for domestic criminal purposes.
Trouble was—and is—that to ask a judge for a warrant in any ordinary court is
eventually to reveal the surveillance to the objects thereof. The bureaucracies
asked Congress to square the circle by establishing a court to rule ex parte,
secretly. But FISA, by providing judicial pre-authorization for many of our
national security bureaucracies’ actions, is perverting the American legal
system and fostering a secret body of common law hostile to civil liberties.
Prior to FISA, the intelligence bureaucracies’ actions, although unquestionable
a priori because undertaken secretly, could always be questioned openly and
thoroughly ex post facto. Once FISA became law however, the defense that any
given act was good because it was lawful made substantive questioning far more
difficult. It is also more difficult because the information’s classified
status now enjoys judicial approval.
In 1978, the American Bar Association invited me to debate the issue with
professor Antonin Scalia at the University of Chicago’s law school. I said that
requiring judicial authorization for an executive action in pursuit of national
security is an unconstitutional obstruction of the president’s power as
commander-in-chief. Scalia agreed, but pointed out that the president, i.e.,
the bureaucracies, had agreed to support involving judges in national security
because they realized that the obstruction is theoretical rather than
practical: FISA’s secret court, having no basis for judging what is or is not
required for national security, would merely give the Agencies the confidence
to do their jobs. I countered that this very confidence would be problematic:
although strictly speaking the court could confer only a procedural imprimatur,
in practice that imprimatur would shield the bureaucracies—and the
President—from having to defend the substantive value, and the propriety, of
any act of surveillance.
I also pointed out that ex parte secrecy had been the defining feature of
England’s infamous “Star Chamber”—the very negation of Anglo-Saxon due process.
Scalia agreed, but pointed out that the FISA court’s jurisdiction would be very
limited. I countered that Congress could expand that foreign body, and that it
would expand in practice. Scalia said that we were debating only the law then
proposed, as indeed we were.
But the law’s logic asserted itself. Already in the 1980s the Intelligence
Committees were receiving requests to place authorization for FBI infiltration
of domestic groups “of national security interest” within the FISA system. In
2001 Congress and the President enacted section 702, which effectively
authorizes all manner of warrantless surveillance of Americans so long as it is
excused as “incidental” to collection on foreigners.
FISA became law because the Intelligence Agencies’ (primarily FBI’s) concerns
dovetailed with those of the sincere ACLU-variety liberals of that time. The
liberals then believed that involving the judiciary in decisions to wiretap
foreigners, and drafting guidelines severely to limit the retention and use of
data collected incidentally about “U.S. persons,” would gradually extend the
Fourth Amendment’s standards of “probable cause” plus warrants to foreign
Intelligence. At the time, I warned fellow Senate staffer John Elliff and other
liberal drafters agonizing over the rules’ minutiae that their words were not
housebreaking Intelligence, but rather giving bureaucrats the means of covering
political surveillance with a cloak of pretend legality—providing them with
temptations they eventually could not resist. They were legalizing Watergate.
Watergate, recall, was an attempt by two of President Nixon’s staffers to
gather information about the opposition party’s 1972 presidential campaign.
That anyone connected with the U.S. government should use government resources
to disadvantage a political opponent was scandalous. Barriers to investigating
it were judged just as scandalous, and all involved in Watergate were punished
severely.
As noted above, U.S. government Intelligence began electronic surveillance of
Trump as soon as it became possible that he would be the Republican nominee. In
the spring of 2016 it also infiltrated his campaign with its agents and
instituted investigations—counterintelligence and criminal—soon thereafter.
This was Watergate on a massive scale.
By October, the surveillance and investigations had turned up nothing that
substantiated the notorious “Steele Dossier” that the media had been touting
since summer. Never mind the charges that Trump was beholden to Russia—they
failed to turn up anything that would derail Trump upon release. Hence, when it
began to seem possible that Trump might win, the bureaucrats who had ordered
the surveillance and investigations faced the possibility of having to explain
by what right they had done it.
FISA was available for legal cover. In a nutshell: they re-packaged the Steele
Dossier on which the public charges had been based and presented it to the FISA
court, nominally to get a warrant for surveillance of low-level Trump adviser
Carter Page and the rest of the campaign. They did this in late October—far too
close to the election to obtain any information useful in that regard. The
Agencies having surveiled Trump for seven months, the warrant served neither
the gathering of information nor any offensive purpose.
Instead, through the Carter Page warrant, the FBI got the Court to warrant, by
political implication, the surveillance that had begun in April under Section
702, as well as the counterintelligence/criminal investigation (initiated
formally on July 31, but actually begun in April). FBI officials were able to
do this because at least some of the federal judges who staff the FISA Court
had become part of the same political party.
In 1972 nobody had to ask whether or not the president’s men who burglarized
the DNC suite at the Watergate Hotel were committing the (only in America) high
political crime of using government power against the opposition candidate. The
only question was “what did the president know, and when did he know it?” Nor
were there any legal obstacles to obtaining any documents or testimony
regarding who had done what. Since a crime was involved, the courts struck down
the president’s claim of executive privilege.
But in 2016, when the president’s men used the full power of the FBI and CIA to
surveil and defeat the opposition candidate and then to de-legitimize the
election’s winner, they were confident knowing they had acted with the FISA
Court’s imprimatur, and that the bureaucratic machine—Inspectors General,
etc.—would agree that that their request to the Court had been properly
“predicated.” They turned out to be correct.
Since early 2017, as first a trickle and then a flood of evidence has become
public that all four of the FISA court’s approvals of surveillance warrants
were based essentially on political lies, no judge has hauled in any bureaucrat
to face comeuppance for contempt of court. Nor have any judges complained of
having been fooled. Only in 2020, after the Justice Department officially
informed the FISA Court that at least two of the warrants it had issued were
based on fraudulent presentations, did the Court acknowledge that these
warrants had been issued invalidly.
Moreover, since the bureaucrats’ submissions to the Court were classified, the
CIA, FBI, and Justice Department bureaucracies refused even Congress’s and the
new president’s demands to see them, unredacted. Classified, you know?
But why give implicit respect to claims of classification?
Under the Espionage Act, Federal officers can classify the information they
generate as “confidential” if, according to their judgment, its publication
would “harm” the United States; as “secret” if they think the harm would be
“serious”; and as “top secret” if they judges the prospective harm “especially
serious.” Classification being merely the classifier’s opinion, publication or
release of classified information is not a crime in America, unless it can be
shown that it was harmful, and that the person either knew it would do harm or
acted recklessly.
But now, because of ruling class solidarity and bureaucratic self-interest, a
classified stamp increasingly endows documents with the status of Official
Secrets, and the documents’ possessor with the authority to withhold them –
while briefing the press on his version of them with impunity.
In sum, FISA’s judicial involvement in national security affairs made
Watergate-type operations into lawful tools of government power. But also, by
the logic of power and class solidarity, it has contributed to making the
protection of security into a system that allows the well-connected to make
accusations anonymously while making it impossible for those accused to fully
defend themselves on substance. FISA has helped make National Security secrecy
the last refuge of scoundrels.
Remedies
Americans, ruling class included, share an interest in removing the
Intelligence Agencies from domestic politics and refocusing them on their
natural functions. Yes, they have served, and are serving now as the ruling
class’s sword and shield. Yet this class’s members know that Praetorians’
natural tendency is to govern on their own account. Knowledge of Intelligence’s
power to arbitrate intra-ruling class struggles is the reason why Stalin purged
and killed KGB chief Nikolai Yezhov and Khrushchev did the same to Lavrentiy
Beria, why Mao did it to Kang Sheng, and why Fidel Castro executed General
Arnaldo Ochoa Sánchez on trumped-up charges.
Without switching allegiances, the Sword and Shield’s handlers can ruin their
patrons merely by taking sides in their internecine quarrels. In fact, the U.S.
Agencies’ outsized impact on the 2016 election and aftermath began when someone
hacked into the DNC’s e-mails, the publication of which showcased that the
Party hierarchy had taken Hillary Clinton’s side against insurgent Bernie
Sanders. The FBI, by not pressing an investigation into who had done the
hacking while espousing the baseless narrative that “the Russians” had done it
to help Trump, helped avert intra-Democrat bloodletting while boosting Clinton.
When the next internal clash comes, the Agencies could well decide the contest.
Here is a sketch of the major measures by which any president and Congress
could help guard the Republic against the Agencies, in ascending order of
importance and difficulty.
Repeal FISA
Were the executive branch to challenge FISA in court, it is difficult to
imagine the argument by which to sustain the constitutionality of involving the
Judiciary in national security surveillance.
Neither Professor Scalia nor anyone else made any such arguments in 1978. At
the time, civil libertarians accepted in good faith the immunities that FISA
was giving the Agencies in exchange for their good-faith promise to take
seriously the parchment barriers contained in the law. The Justice Department
winked at this accord’s patent un-constitutionality because it removed
objections to needed surveillance of foreigners while posing no immediate
threats. Hence, FISA became known as “an indispensable tool” for national
security—as if needed surveillance had never been done before FISA and could
not take place without it. But as the years wore on, good faith succumbed to
partisanship, and tolerating little violations of the Constitution for noble
purposes had its usual effects.
Today, there is no more good faith.
Today, FISA’s existence (and expansion under Section 702) having facilitated
gross U.S. governmental interference in our political process, there is broad
consensus on the need for “a legislative fix.” But because the problem lies in
FISA’s very premise—the secret mingling of judicial and executive power—no such
fix is possible. This being so, any legislative remedies—more elaborate
standards and procedures, maybe even mandating a “devil’s advocate”—must be
equally as vulnerable to partisan re-interpretation as the ones that John
Elliff and friends elaborated in 1978. Parchment barriers notwithstanding,
purpose-driven bureaucrats and friendly judges acting together in secret can do
whatever they want.
With regard to Intelligence surveillance as with anything else, the
Constitution makes it possible for the Judiciary to restrain the Executive by
forcing each to work by their own rules. The Executive may work in secret. But
the Judiciary may choose to examine that secret work in its own public sphere.
The very possibility of a public hearing is greater incentive for the Executive
to adhere to its own rules than submitting applications to an ex parte court in
secret. Separation of powers—each branch concentrating on fulfilling its own
responsibilities—is the U.S. Constitution’s genius.
Repealing FISA outright is as simple as the removal of a priori justification
would be sobering. Minus FISA, the Agencies would find malfeasance more
hazardous and more difficult to hide. Only Congress can repeal it. But the
president can achieve the same effect by challenging FISA’s constitutionality
in the Supreme Court, while ordering the Agencies not to submit any
applications to the FISA Court. But changing the CIA’s and FBI’s habit of
acting as partisan policymakers and, most recently, of throwing their weight
around in domestic politics, will require reducing the Agencies’ size,
resources, and pretenses.
Shear
The U.S. Intelligence community’s size—some $58 Billion annually for the
National Intelligence Plan—ensures that those who administer it control a lot
of careers, contracts, consultancies, and high-level contacts. That much money
and power, added to the capacity to shield the basis of its pronouncements,
comports prestige in spite of substantive incompetence.
Wasteful activity is the least of the problem. Much of what happens within
Intelligence is counterproductive. Worse, the sense of power that comes from
managing such big things—while having near-total control of how their own
management is explained—accustoms its officials to a ruinous sense of
entitlement to having their own way. As the Intelligence community has grown in
size—nearly doubling since 9/11—it is becoming ever more a political force that
pursues its own objectives.
Hence, shearing U.S. Intelligence—cutting down or out functions that are
wasteful or dysfunctional—is an indispensable means to refocusing the Agencies
on their proper functions. Shearing also creates opportunities for replacing
the officials whom the bureaucracy had selected as its champions with ones
chosen to do what they should while eschewing domestic politics. Nothing quite
so focuses bureaucrats’ minds as the clear and present possibility of
reductions in force.
This is truest regarding CIA, the Community’s most politicized part, which
wields outsized influence in Washington and in the media. From the beginning,
the Agency took on a peculiar socio-political character and gathered its
personnel’s allegiance to itself rather than to the president—or to the United
States. Legally, shearing CIA is the easiest of tasks because, by the law that
established it, its employees may be hired, managed, and fired strictly at the
president’s pleasure.
The candidates for shearing include major technical Intelligence programs that
have become known to their targets, and which hence have become potential
avenues of disinformation. Many of CIA’s human Intelligence operations should
also be considered for shearing because of their structural operational
insecurity. Since lack of operational security and quality control is arguably
U.S. Intelligence’s major shortcoming, lack of these features in any given
programs should put it on the chopping block.
The gargantuan amounts of metadata of U.S. telephone calls and emails have been
judged useless and worse: the infrastructure for storing them should be
eliminated.
Much if not most of the Community’s vast network of consultants has always been
a kind of echo chamber and welfare system for the well-connected, and should be
eliminated.
CIA’s Directorate of Intelligence, vastly overstaffed and specializing in
groupthink, tries to be the U.S. government’s official interpreter of foreign
reality—a worse than useless function. The Community’s very size has occasioned
the establishment of support structures, such as the National Intelligence
University, to prepare persons for service in it. Surely, these should be
abolished.
Not least of the benefits from the cuts would come from explaining to the
public how they remedy wrongs and improve performance. Such explanations would
also temper the resistance they would generate.
Since the reduction and possible elimination of programs impacts the interests
of well-connected officials—and especially of corporate contractors—resistance
and lobbying are sure to be fierce. But the personal, private motivation of
these factional interests can serve as an argument for why the cuts are in the
national interest. Each cut should be made in ways that de-mystify
Intelligence, and put it in its natural place as the servant rather than the
master of government.
Getting It Right
The trope that knowledge of others’ secrets is prerequisite to understanding
how we should deal with them is the reverse of the truth. In fact unless we
know who we are and what’s good for us; unless ordinary intercourse has taught
us what others are about; unless we use our intelligence in the ordinary sense
of the word, secret Intelligence can only confuse us. And in fact, though the
United States has never suffered because our officials lacked knowledge of
others’ secrets, the American people have suffered much from their willful
ignorance of the realities against which they continue to stub our toes.
All too often, they have used Intelligence to counter common sense. During the
Cold War, arguments over secret tidbits about Soviet weapons allowed
policymakers to sidestep the question before them: how shall we defend America?
More recently, arguments about Iraq’s and Iran’s Weapons of Mass Destruction
obscured the real question: what is our interest in the Middle East, and how
shall we serve it?
Intelligence being policy’s natural servant, it cannot carry any policy’s
burden. Intelligence can help intelligently conceived policy to succeed. But it
cannot rescue congenitally dumb policy. Asked to address students at the
National Intelligence University who were asking what they could do to help our
troops in Afghanistan, I could only set their consciences at ease: No amount of
Intelligence could help distinguish between friendly Youssef and unfriendly
Ahmed, never mind turn the latter into the former.
At home as well, it turns out that lack of intelligence is more troublesome
than lack of Intelligence. Almost all acts of terrorism are perpetrated by
persons already well known to local law enforcement or to the FBI. The
perpetrators are not “lone wolves” out of nowhere, but known wolves, known to
Intelligence but not to intelligence. At home like abroad, our real need is for
ordinary intelligence, along with ordinary virtues.
Hence, as we reshape U.S. Intelligence to better serve the Republic, we need
not fear that we will deprive ourselves of knowledge for our own protection.
Function and Intelligence
Secrets help refine plans for action. They do not define action’s parameters.
Their value depends on the difference they make to the plans’ success. That is
why Intelligence is normally subordinated to operations. The U.S. Army, Navy,
and Diplomatic service used to collect such secrets as they needed. Specific
supply followed specific demand. But by establishing CIA as the central organ
of U.S. intelligence, the 1947 National Security Act reversed this natural
order.
CIA was to be responsible for no operations except for such covert activities
as the President might order.
The Act granted CIA a near monopoly on human collection and communication with
the president and Congress on Intelligence matters. It subordinated the
Intelligence activities of the government’s operating departments to CIA
supervision. These departments now keep control of Intelligence in which CIA is
uninterested and get most of the Intelligence they need from or through CIA.
Hence, they get what the CIA system produces, given its own interests and
capacities, regardless of their own needs. Because the Agency soon developed
its own particular predilections, the gap between what the operators need and
what CIA has available has always been wide. U.S. Intelligence became
controlled by the producers of secret information—not by its consumers. The
results have been comparable to those of other producer-dominated systems.
CIA was created specifically and primarily to serve the president of the United
States. Informing him is its primary job. But, from the beginning, CIA officers
crossed the line between informing the president and claiming the right to form
his mind—as well as the rest of the government’s mind. Ever less subtly, CIA
has claimed that it is improper, even illegitimate, for anyone in the U.S.
government, including the president, to act or even to think about foreign
affairs contrary to its own supremely authoritative judgments. Over the
decades, the media have echoed CIA’s complaints whenever presidents have acted
regardless of or against CIA’s recommendations.
This is doubly wrong. Yes the president, constitutionally responsible as he is
for the conduct of the armed forces and foreign relations, must have an
architectonic view of what he is up against. But that does not mean that his
advisers can know the military’s and the diplomats needs for information. Much
less does it authorize the standard CIA view that its job “comprises all the
major evaluative and predictive functions” and “leaves the policy-maker little
or nothing in the decision-making process except the ceremonial finale.” But
this has been the basis for its attempts to substitute bureaucratic authority
for that of officials responsible to voters. CIA’s complaints are another
instance of our ruling class’s attempt to push aside representative government
in favor of the Administrative State.
In sum, since 1947, U.S. Intelligence’s basic structure has separated the
collection and analysis of secrets from the functions they should serve. Having
created a presidential Agency with no functions to fulfill for which it may be
held responsible has encouraged that Agency—and others by imitation—to presume
presidential powers. A non-responsible agency became irresponsible. We should
reverse the process.
Responsibilities
Congress, being beholden to the Agencies’ contractors, enmeshed with their
bureaucracy, and ignorant of their failings given their oversight Committees’
unserious oversight, (Devin Nunes’s 2015-19 chairmanship on the House side and
Malcolm Wallop’s 1981-85 budget chairmanship on the Senate side excepted) will
not amend the 1947 National Security Act until it learns that it should. The
president can help it learn by exercising his substantial authority to
subordinate Intelligence to the government functions it is supposed to serve.
Exercising that authority requires more attention to Intelligence than
presidents heretofore have wanted to devote. But, the Agencies having played
such a prominent part in the Resistance against President Trump, neither he nor
any future president can afford not to force them out of politics while
focusing them on their jobs.
The President should end the CIA’s monopoly on providing Intelligence to
himself and the NSC; demand to receive his Intelligence briefings from State,
Defense, and Treasury as well; order CIA to stop characterizing the documents
that it produces as authoritatively and exclusively of “national” status and
encourage other agencies to create whatever documents and briefings might flow
from their expertise. By doing so the president would broaden the perspectives
to which the top levels of government are exposed, introduce open intellectual
competition in the analysis of Intelligence, and remove Intelligence officers’
temptation to substitute their judgment for that of responsible officials. Top
officials, and the president himself, having become habituated to receiving
just one perspective, would feel the weight of additional responsibility.
This would also be a first step in the parceling out of CIA’s functions, and a
demonstration of the benefits thereof.
The President should also end the CIA’s near monopoly on human Intelligence.
The need for Intelligence from persons under covers other than the ones CIA
provides is undeniable. CIA did not object to the creation of a corps of
undercover agents in the Justice Department’s Drug Enforcement Agency because
its own people would not even try to do that dirty, dangerous work. Heretofore,
however, it has objected to the military running its own deep cover agents. The
president should override those objections and direct OMB to budget funds for
such human Intelligence as the Services think necessary for military
operations. Broadening the Services’ collection would also enrich the DOD’s
analytical products.
Most of the National Security Agency and the National Reconnaissance Office are
properly run by the military for military needs. But substantial technical
systems that are aimed at political Intelligence are planned and controlled by
CIA. Since the “take” therefrom is useful primarily for foreign relations, the
State Department is best fit to judge what it needs from them. The President
should decide to reorganize accordingly.
The covert exercise of political and paramilitary influence was not least of
the reasons for CIA’s establishment. But international law does not treat
threats, blandishments, support, or opposition any differently if done with
greater or lesser degrees of secrecy. In retrospect, influence on other
countries being the proximate purpose of foreign relations, the benefits of
maintaining the “plausible deniability” (utter secrecy of actions being
inherently impossible) of U.S. influence are difficult to understand.
Subsequent experience makes it more difficult to avoid the conclusion that
covert action’s covertness was always meant to allow the U.S. government to
avoid publicly confronting the question “what are we doing in the world on
whose behalf?” because it is the flip side of the core domestic question: “who
and what among us is right, and wrong?”
CIA’s covert actions’ covertness within the U.S. government resulted in not
sufficiently thinking through their consequences. Worse, covertness allowed the
U.S. government to defer basic choices between foreign policy alternatives.
Often, while the State Department pursued option A, the government would keep
option B alive through CIA. Multi-track policy has also been instrumental in
erasing the distinction between war and peace.
The president should decide to abolish the ruinous category “covert action” and
hence make the State Department responsible for the exercise of all manner of
political influence abroad, and the military services responsible for military
and paramilitary affairs.
The President of the United States should control Intelligence by the very
means by which he controls all other parts of the National Security
establishment: The National Security Council. That is, assuming that he
controls it, and not the other way around.
