Chapter 16 - Other Legal Problems in the Intelligence Field

Sample Selection Bias

What intelligence cases do you hear about? WMD in Iraq Bay of Pigs What do these have in common?

Why are the successes hidden? Breaking the German codes in WWII

What policy problem does this pose, i.e., how can you know who is telling the truth about intelligence services?

The Domestic Role of the CIA

‘‘the Agency shall have no police, subpoena, law enforcement power, or internal-security functions,’’ 50 U.S.C. [§403-4a(d)(1)

The original order from President Roosevelt to J. Edgar Hoover to begin internal security operations was to investigate foreign communist and fascist influence within the United States. Were these investigations considered foreign

intelligence? Did Congress intend for the CIA to operate in the US?

Halkin v. Helms, 690 F.2d 977 (1982) (CIA)

Who were the plaintiffs? Who were the defendants? What was Operation CHAOS?

Operation CHAOS

(1) the CIA letter-opening program, which was directed at letters passing between the United States and the Soviet Union, and involved the examination of correspondence to and from individuals or organizations placed on a ‘‘watchlist’’;

(2) the Domestic Contact Service, a CIA office which solicits foreign intelligence information overtly from willing sources within the United States;

(3) the CIA’s ‘‘Project 2,’’ which was directed at the infiltration of foreign intelligence targets by agents posing as dissident sympathizers and which, like CHAOS, had placed agents within domestic radical organizations for the purposes of training and establishment of dissident credentials;

(4) the CIA’s Project MERRIMAC, operated by the Office of Security, which was designed to infiltrate domestic antiwar and radical organizations thought to pose a threat to the security of CIA property and personnel; and

(5) Project RESISTANCE, also a creature of the Office of Security, which gathered information on domestic groups without any actual infiltration.

The Legal Issues

Was Operation CHAOS a valid CIA activity in the US?

What is the discovery fight and what did the court rule?

What is the effect of not allowing discovery on plaintiffs' efforts to get legal redress from a potentially illegal activity?

Where did the Court say the remedies should lie?

Executive Order No. 12,333.

Executive Order No. 12,333, anticipates that the CIA will engage in the ‘‘collection of foreign intelligence or

counterintelligence within the United States,’’ §1.8(a), and

‘‘participate in law enforcement activities to investigate or prevent clandestine intelligence activities by foreign powers or international terrorist or narcotics activities.’’ §2.6(b)

How can these be reconciled with the lack of law enforcement power?

Intelligence Reform and Terrorism Prevention Act of 2004

terms ‘‘national intelligence’’ and ‘‘intelligence related to national security’’ were defined to include ‘‘all intelligence, regardless of the source from which

derived and including information gathered within or outside the United States, that pertains . . . to more than one . . . agency; and that involves threats to the United States, its people, property, or interests; the development, proliferation, or use of weapons of mass destruction; or any other matter bearing on United States national or homeland security.’’

The Intelligence Reform and Terrorism Prevention Act of 2004 and the CIA

What does the definition of intelligence related to national security seem to do to the CIA's right to operate in the US?

How did Congress limit this? What type of intelligence did this apply to? What is the CIA free to do in the US under the

law? How is this consistent with abolishing the

foreign/domestic distinction?

The Director of National Intelligence and Internal Security

Is there any foreign/domestic limitation on the DNI? Why not? Why was this a priority for the 9/11

Commission? Does it matter if the constituent agencies have

limits if the DNI does not?

COINTELPRO

Who did COINTELPRO operations target? Was this just intelligence gathering? What sort of covert actions were carried out? What were the long term goals of the operation against

Black Nationalists? Why was the FBI worried about the New Left? What actions were recommended against the New Left?

(p441) This is one of the reasons behind academic hostility to

the intelligence services and distrust of the government.

The FBI Enabling Act

The FBI operates on the basis of the Attorney General’s authority in 28 U.S.C. §533 (2000 & Supp. III 2003) to appoint officials: (1) to detect and prosecute crimes against the United

States; (2) to assist in the protection of the person of the

President; and . . . (4) to conduct such other investigations regarding

official matters under the control of the Department of Justice and the Department of State as may be directed by the Attorney General.

Hobson v. Wilson, 737 F.2d 1, 10 (D.C. Cir. 1984)

What was the result in Hobson v. Wilson, 737 F.2d 1, 10 (D.C. Cir. 1984)? the plaintiffs prevailed against the FBI. The Court of

Appeals stated, ‘‘Government action taken with the intent to disrupt or destroy lawful organizations, or to deter membership in those groups, is absolutely unconstitutional.’’

Why was the result different from Halkin v. Helms? Would this rationale still be good today?

MI5

Should the US have an MI5 type agency that focuses on intelligence, leaving crime fighting to the FBI?

What are the advantages of this? What are the disadvantages?

The NSA

What is the NSA and what intelligence does it process? Does the NSA act on the intelligence it gathers? Should you worry about the NSA combing through all of

your communications and electronic transactions? Does it matter if you are on a watch list?

How could that change? What if the congressional committee finds out?

What are the issues of the NSA doing economic espionage to benefit US companies?

Covert Businesses for Intelligence Gathering

How is this different from using real private businesses to carry out intelligence operations? What are the constitutional issues with front

organization in the US? (4th amendment) How do private businesses get around that?

What is the problem with using UN aid organizations to support private armies?

What about owning media and paying for propaganda? What if reporters do not know they are working for a

CIA front?

Harbury v. Deutch, 233 F3d 596 (2002)

Who killed plaintiff's husband? What was the US involvement?

The Bivens Claims

Why use Bivens? What were the Biven's claims based on?

(1) by contributing to Bamaca’s torture, CIA defendants violated his Fifth Amendment substantive due process rights;

(2) by participating in and concealing information about Bamaca’s torture and murder, all defendants violated Harbury’s constitutional right to familial association; and

(3) by concealing information and misleading her about her husband’s fate, NSC and State Department defendants violated her right of access to courts.

What is the Legal Situs of the Claims?

What does United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) tell us about the claims of foreign nationals for actions that happen outside the US?

What claims does she have that concerned her own damages based on US conduct?

What is the problem with her bringing FTCA claims based on what happened?

Dealing with Dirty Assets

What did the National Commission on Terrorism report claim in 2000 about the effect of the reforms limiting CIA use of dirty assets?

Did the CIA say it slowed them down: No one knows better than we do that when combating

terrorism it is often necessary to deal with unsavory individuals. But we do so with eyes wide open and with appropriate notification to senior officials. . . . [The CIA] has never . . . turned down a request to use someone, even someone with a record of human rights abuses, if we thought that person could be valuable in our overall counterterrorism program.

Doing Business with Terrorists

Who do you need to do business with to learn about terrorists?

What about terrorists who become heads of state or of political parties? Jerry Adams Yasir Arafat Menachem Begin

The Role of the Military

How is using the military for covert actions different from using the CIA? Is it better to use the military?

What is the command structure confusion when special forces are used for non-military covert actions?

Are there potential conflicts when the military collects its own intelligence?