Transcript Chapter 16 - Other Legal Problems in the Intelligence Field

Chapter 16 - Other Legal Problems in the
Intelligence Field
Sample Selection Bias
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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
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‘‘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)
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Who were the plaintiffs?
Who were the defendants?
What was Operation CHAOS?
Operation CHAOS
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(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
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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.
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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
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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
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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
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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
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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
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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)
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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
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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
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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
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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)
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Who killed plaintiff's husband?
What was the US involvement?
The Bivens Claims
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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?
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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
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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
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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
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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?