Ethics and Oversight of Clandestine Intelligence Operations

Introduction

One of the most common yet least understood methods of operations in the art of statecraft is the clandestine operation (Sheldon 1997). Though popularized in pulp fiction and film — such as the James Bond franchise and numerous other spy thrillers — clandestine operations remain relatively unknown in the public consciousness, and when they are discussed it is generally with distaste, distrust, and vilification (Sheldon 1997). Yet as Sheldon (1997) shows, clandestine operations are not new or unique to the modern world; in fact, ancient Rome used them whenever military operations were impractical. Thus, "political influence operations, seeding, propaganda, political patronage, safe havens, political assassination, and paramilitary operations" can all be traced back more or less to similar operations implemented by the ancient Romans (Sheldon 1997, 299).

Today, there are many different facets to clandestine operations, and many agencies that use them — from the CIA to the FBI to the NCS (the National Clandestine Service) — and those are just a few of the agencies operating within the U.S. Every developed nation has its own agencies that implement clandestine operations as a normal part of statecraft. This literature review examines the role that clandestine operations play in the U.S. today and what the risks of those operations can be.

The Complexity of Clandestine Operations among Multiple Agencies

A major component of clandestine operations is the collection of intelligence. The U.S. Intelligence Community is a complex, complicated amalgamation of agencies, each with its own work, sphere of influence, and areas of focus. In the Overview of the United States Intelligence Community for the 111th Congress (2009), it is noted that the power bases are many and diverse: "the Director of the CIA is the National Human Intelligence (HUMINT) Manager and serves as the national authority for coordination, de-confliction, and evaluation of clandestine HUMINT operations across the IC, consistent with existing laws, Executive Orders, and interagency agreements" (2). The Overview was written to give Congress a detailed picture of the various agencies and organizations involved in the intelligence community, what their roles were, and how they collected and disseminated information. It portrays a vast and complicated, loosely confederated community of agencies and organizations that all embark on their own independent clandestine operations at times — often in ways that are not supportive of a unified aim or of a particular administration's policy, as Warner and McDonald (2005) point out in their research.

The Overview (2009) states, for instance, that "the National Clandestine Service (NCS) has responsibility for the clandestine collection (primarily HUMINT) of foreign intelligence that is not obtainable through other means. The NCS engages in counterintelligence activities by protecting classified U.S. activities and institutions from penetration by hostile foreign organizations and individuals" (2). Thus, as the Overview shows, both intelligence and counter-intelligence operations fall under the umbrella of clandestine operations at times, and the agencies involved in managing these operations are not necessarily working together, sharing intelligence, or even pursuing the same ends simultaneously.

In their research on this issue, Warner and McDonald (2005) note that these various intelligence agencies can be politicized, meaning their actions may not always be aligned with the policies and platforms of the administrations under which they are operating. This was seen in the lead-up to the Iraq War when, in the aftermath of 9/11, there was a push by an inner "cabal," as Seymour Hersh (2003) called it in his research on the post-9/11 wars and the men responsible for initiating them. The "cabal" described by Hersh (2003) existed under the agency heading of the Office of Special Plans (OSP), which engaged in a clandestine operation of its own to create the intelligence used to launch a full-scale invasion of Iraq.

The events leading up to the Iraq War provide a fertile ground for understanding the conflicts that can arise among various clandestine operations occurring simultaneously under a single administration. As Hersh (2003) shows, Bush's policy advisors in the OSP were involved in their own clandestine operation, which focused on overruling the intelligence analysts at the CIA and shaping foreign policy to meet their own aims and objectives. The "cabal" at the OSP consisted of a group of policy advisors including Abram Shulsky, Paul Wolfowitz, Richard Perle, Doug Feith, and Scooter Libby. According to Hersh (2003), they were "a small cluster of policy advisers and analysts based in the Pentagon's Office of Special Plans (OSP)," and their clandestine operation rivaled what the CIA and the DIA were doing by supplying the Bush Administration with faulty intelligence on Iraq's alleged weapons of mass destruction program. The OSP, for instance, used the intelligence source known as CURVE BALL — a collection of "soft" evidence (unsubstantiated hearsay) alleging collusion between Iraq and terror networks — to push the Bush Administration into invading Iraq.

The other agencies did little to stop them, however. Both MI6 in England and the CIA at Langley offered only minimal resistance to the OSP's claims, effectively making them complicit through their relative silence, as Pfiffner and Phythian (2008) have shown in their research. The husband of CIA agent Valerie Plame, former Ambassador Joe Wilson, published an editorial in national media debunking the claims of the OSP. The OSP in turn unmasked Plame, forcing her out of the field. It was, in short, an all-out conflict between clandestine actors in what turned out to be a major foreign policy shift in the wake of 9/11 — one based not on hard intelligence but rather on a clandestine operation inside the Pentagon. The result of the OSP's falsification of intelligence regarding yellowcake uranium allegedly passing through Niger into Saddam Hussein's hands was a war, more than a million deaths, and a succession of destructive insurrections across the Middle East (Stone & Kuznick 2012).

That is not the only example of complications in clandestine operations stemming from power struggles in which multiple agencies and bureaucrats vie for influence. Moir (2012) notes that "the differing bureaucratic cultures and the disconnected approach to intelligence between the CIA and FBI [have been] further compounded by disjointed relationships between intelligence agencies and policy decisionmakers. This is notable in [the CIA's] frustration with the Clinton administration's failure to address the al Qaeda attacks on U.S. Embassies in Nairobi and Dar es Salaam as acts of war" (149). Moir's review of CIA memoirs shows that when it comes to clandestine operations, it is effectively every agency and organization for itself — ostensibly united under the banner of intelligence but in reality working independently toward goals that not everyone is always apprised of.

Oversight of Clandestine Operations

Clandestine operations, because of their very nature, can be perceived as an area of intelligence that has remarkably little oversight and that comes with many risks. The risks are often better understood in hindsight, as is the case with the Iraq War, but they can be discerned and identified at any rate, as Best (2002) shows: "Counterterrorism is highly dependent upon human intelligence (HUMINT), the use of agents to acquire information (and, in certain circumstances, to carry out covert actions). HUMINT is one of the least expensive intelligence disciplines, but it can be the most difficult and is undoubtedly the most dangerous for practitioners. Mistakes can be fatal, embarrass the whole country, and undermine important policy goals" (2). Best's (2002) report shows that controlling clandestine operations and knowing how they are being used should be a matter of grave concern.

The reason for this is simple: as revealed in recent years, clandestine operations can be used against one's own government — not just against foreign nations — which is what Morris and McGann (2017) demonstrate in their study of clandestine operations. McDonnell (2017) likewise makes this point and supports the findings of Morris and McGann (2017). At the same time, administrations have worked with the CIA and the Joint Special Operations Command to engage in clandestine operations abroad with little regard for rule of law: drone assassinations and related activities fill out the catalogue of events that transpire as a result of clandestine operations carried out in foreign lands (McDonnell 2017).

Clandestine operations are used widely and for a variety of reasons, and they are often tied to the War on Terror in the post-9/11 world. The FBI uses them frequently in its counter-terrorism efforts. For instance, the Bureau can utilize the tactic of "tagging," which involves covertly placing some kind of marker or identifying feature on objects destined for a WMD laboratory (Carter 2004). Carter's (2004) assessment of clandestine means within operations shows the range of these methods and their applicability — along with the fact that it is essentially a field in which there is very little regard for oversight or rule of law. For example, a tag can be a transmitter, a chemical marker, or any device that allows the Bureau to trace the movement of material, though there is little debate over whether this constitutes a lawful means of monitoring.

Penetrating the information infrastructure of targets is another common clandestine operation strategy that security forces use as part of a counterproliferation policy. This strategy relies on signals intelligence — technological means to penetrate and exploit terrorist network cell phones, laptop computers, local area networks, and other information infrastructure devices (Carter 2004). These devices are then monitored so that any movement of materials is known in advance and can be intercepted.

Arnold and Salisbury (2019) show that legal means are also at the disposal of security and intelligence forces, indicating that in some cases the rule of law is administered. For instance, the Export Control Reform Act (ECRA) allows security forces to identify potential violations and engage in preventive or pre-emptive measures to uncover and recover WMDs. The FBI has used this strategy in the past — for example, when it ensnared Brussels-based Kaiga and disrupted his illicit activities exporting aluminum tubes from the U.S. that were believed to be destined for WMD laboratories in Iran. Other options include undercover, lure, and sting operations, which are helpful in building criminal cases against suspects and targets. The Department of Homeland Security has used sting operations, such as the one employed against Jiang Guanghou Yan, who was caught trafficking counterfeit goods (Arnold & Salisbury 2019).

Relying on human intelligence will remain a major factor, and counterproliferation policy should make best use of HUMINT for intercepting, monitoring, or raiding WMD facilities, transports, or networks (Carter 2004). When it comes to preventing the deployment of WMDs, security forces have numerous options available. But questions remain about how oversight of those options and methods is to be provided (Carter 2004).

Conclusion

This literature review has shown that clandestine operations predate modern society by thousands of years. The ancient Romans practiced clandestine operations in lieu of warfare to satisfy state ambitions. Statecraft today is replete with instances of clandestine operations ranging from efforts designed to influence politics in other countries and domestically, to political assassinations. However, with so many different agencies, organizations, and groups operating beneath the radar — like the OSP within the Pentagon — the oversight and regulation of clandestine operations is limited, to say the least.

The moral and ethical risks of this situation need to be better understood. Too many groups engaging in this type of activity without accountability could ultimately undermine the principles of freedom and democracy that the United States was founded upon and actively promotes throughout the world. As the existing literature makes clear, the intelligence community's capacity for clandestine action has outpaced the legal and institutional frameworks designed to govern it — and closing that gap represents one of the most urgent challenges in contemporary national security policy.