A New Approach to Intelligence?

Over the course of his time in office, George W. Bush confronted the challenges of two wars, the pursuit of al-Qaeda, and the proliferation of dangerous weapons technologies. To address these challenges, his administration expanded the scope of the accepted methods of intelligence collection, authorizing controversial practices such as rendition and waterboarding.

Eight years later, Bush’s successor, Barack Obama, faces these same concerns, but has framed his approach to intelligence collection very differently. Yet although he has criticized the Bush administration for “politicizing” the country’s intelligence apparatus and sanctioning coercive methods of interrogation, the new president has made only minimal substantive change in the U.S. intelligence community.

Substantive change to the structure of the US intelligence community and the principles upon which it is constructed will only come if Obama articulates a clear and coherent philosophical basis for the changes he seeks.

Everything is Political?

The first line of cleavage between the two administrations is the question of the proper degree of separation between intelligence collection and policymaking. The Bush administration rejected the idea that analysts could produce dispassionate and disinterested intelligence, and encouraged policymakers to search through the fragmentary evidence to find pieces that offered support for its predetermined objectives. The most infamous case of this “cherry-picking” of intelligence occurred during the lead-up to the Iraq War, when the Office of Special Plans scoured the available data for instances of Iraqi sponsorship of terrorism or possession of weapons of mass destruction. There was no attempt to divorce intelligence collection from consumption.

At the other end of the spectrum, during his campaign Obama repeatedly emphasized “getting politics out of intelligence.” In his view, the intelligence community should be an independent source of objective analysis. However, this ideal is more difficult to achieve than it first appears. Although it’s possible to segregate personnel, the same is not true of their functions. Analysis and decision are interactive processes. On the one hand, the tendency for analysts is to avoid making intelligence assessments that conflict with policy options that have already been chosen. On the other, leaders instinctively downplay reports that challenge an ongoing policy.

Still, there are measures that can be taken to depoliticize intelligence. During his campaign, for instance, President Obama promised to give the director of national intelligence (DNI) a fixed term. Although this proposal has yet to be enacted, it would give the intelligence community more independence. The DNI would become more like the chairman of the Federal Reserve rather than a cabinet secretary serving at the pleasure of the president. To many observers, the most opportune time to institute this promise would have been when Obama nominated former Navy Admiral Dennis Blair to serve as DNI and California Representative Leon Panetta to head the CIA. However, no mention was made of a establishing a fixed term for the DNI. Whether or not Obama follows through on this piece of campaign rhetoric remains to be seen.

The Torture Debate

The other main divergence in Bush and Obama’s approaches to intelligence was over the role moral concerns should play in intelligence collection. Members of the Bush administration repeatedly emphasized the need to prevent terrorists from attacking the United States at any cost, a view recently reiterated by former Vice President Dick Cheney: “To make certain our country never again faced such a day of horror [as 9/11] we…committed to using every asset to take down [terrorist] networks.” Thus, starting in 2002, with the approval of President Bush and the Justice Department, the CIA used intense physical pressure against around 30 al-Qaeda prisoners. Many legal authorities and human rights groups have described some of these methods, including waterboarding, as torture. In 2006, President Bush also acknowledged the CIA use of black sites in other countries to avoid laws about harsh interrogation on U.S. territory.

In contrast, during his presidential campaign Obama constantly reiterated the need to restore “American values” to the fight against terrorism by limiting use of coercive force against prisoners. He denounced the interrogation methods permitted under the Bush administration, spoke of the need for all U.S. interrogators to follow guidelines set out in the Army Field Manual, and pledged to end the practice of rendition. Casting the matter as a practical as well as moral issue, Obama stated: “We cannot win a war unless we maintain the high ground and keep the people on our side…because the administration decided to take the low road, our troops have more enemies.”

Accordingly, during his first week in office Obama dismantled the controversial intelligence programs authorized by the Bush administration, particularly the CIA’s use of harsh interrogation techniques such as waterboarding. Administration officials, including CIA Director Panetta, have vowed to continue the pursuit of al-Qaeda and its allies, but have stated that interrogators will use methods in line with the Army Field Manual and not physical force. Controversy arose, however, when Obama released classified Justice Department memos from the Bush administration that discussed the use of waterboarding. The release of the memos led to many calls for the prosecution of the interrogators. But thus far Obama has opposed the idea of legally prosecuting CIA personnel that committed waterboarding, based on the legal advice of superiors. While the topic has been subject to heated internal debate within the White House, the president’s stance seeks to reconcile the tension between his desire to break with the Bush administration policies and his concern over alienating an agency with a central role in the campaign against al-Qaeda.

Obama has also found it difficult to shut down the CIA’s detention program. As a candidate, he denounced the Bush administration’s treatment of prisoners. During his first week in office he issued an executive order closing the detention facility at Guantánamo Bay. However, although the CIA decommissioned the secret overseas sites where it held al-Qaeda prisoners in April, Obama has found himself at odds with his own party on closing Guantánamo. On May 20, 2009, the Senate voted to keep the detention facility open for the foreseeable future and forbade the transfer of any detainees to facilities in the United States. Some other countries have volunteered to house them. Italy has accepted three detainees; the Pacific island of Palau will be taking up to 17 Uighur Guantánamo detainees, whom the United States thinks might be tortured if they return to China. But many more detainees remain in limbo. Meeting resistance at home from lawmakers unwilling to allow them into the United States and finding it difficult to locate countries that will take them in, Obama’s efforts to dismantle detainee programs have this been stalled.

Surveillance and FISA

The tension between balancing national security concerns with civil liberties also arose on the domestic front. Maintaining their emphasis on combating terrorists at any cost, Bush administration officials, particularly Cheney, initiated a controversial wiretapping program after the September 11 attacks. In 2002, Bush issued an executive order that authorized the National Security Agency (NSA) to conduct surveillance of communications involving any party believed to be outside the United States — even if the other end of the communication lay within the country — without obtaining a warrant as stipulated by the 1978 Foreign Intelligence Surveillance Act (FISA). When the program became public, critics called it a violation of FISA as well as Fourth Amendment rights against warrantless search. The Bush administration maintained that the authorized intercepts were not domestic but rather foreign intelligence integral to the conduct of war. They claimed that the subsequent passage of the Authorization for Use of Military Force Against Terrorists implicitly superseded the warrant requirements of FISA.

The FISA Amendments Act of 2008 belatedly resolved the issue by amending the 1978 legislation and substituting the requirement of a warrant to conduct surveillance with a system of NSA (National Security Agency) internal controls. The bill also allowed the monitoring of all electronic communications of people in the United States without a court order or oversight, so long as it is not targeted at one particular person “reasonably believed to be” inside the country. It includes a divisive element that Mr. Bush had deemed essential: legal immunity for the phone companies that cooperated in the NSA wiretapping program.

This bill was a delicate campaign issue for then-Senator Obama. During his campaign for the Democratic nomination, he had opposed giving legal immunity to the telecommunications corporations that took part in the NSA wiretapping program. But in July 2008, he ended up voting for what he called “an improved but imperfect bill.” Obama argued that the new law reaffirmed FISA as the exclusive means to conduct surveillance, one that the president cannot circumvent: “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program.” The left castigated the bill as meaningless, since the exclusivity provision was in the 1978 act. Seeking to avoid Republican accusations that he was weak on foreign policy, Obama made one of his most substantive breaks with his liberal base and adopted the Bush administration’s emphasis on national security concerns.

The new law hasn’t succeeded as well as Obama had hoped. A periodic Justice Department review found in April that the National Security Agency had intercepted private e-mail messages and phone calls of Americans in recent months, on a scale that went beyond the broad legal limits established by Congress last year. While still unclear, the issue appears focused in part on technical problems in the NSA’s ability to distinguish between communications inside the United States and those overseas, as it uses its access to American telecommunications companies’ fiber-optic lines to intercept calls and e-mail messages. According to intelligence officials, the problems grew out of changes enacted by the FISA Amendments Act. Justice Department officials took comprehensive steps to correct the situation and bring the program into compliance with court orders, but this incident highlights the fact that privacy concerns still abound.

The Uses of Intelligence

What, ultimately, should be the goal of U.S. intelligence-gathering? With its chief focus on the Global War on Terror, the Bush administration viewed intelligence agencies as tools to defeat terrorist opponents. The agencies, it argued, needed wide latitude in the methods they used in the fight against al-Qaeda. Yet this led to contentious debates over domestic surveillance and disturbing intelligence activities. Obama, having to deal with the fallout from the Bush years, has unsurprisingly attempted to orient the U.S. intelligence community in a different direction. At present he has tended to define his goals in opposition to those of his predecessor, and has given no coherent formulation of his view on the proper use of intelligence since assuming office. Thus, while Obama generally views the proper goals of the intelligence apparatus very differently than Bush, tangible reform has yet to take place.

To refocus U.S. intelligence toward its proper mission of preserving civil liberties and the rule of law, Obama needs to articulate a clear vision of how intelligence can be used to preserve and promote the “American values” he spoke of during his campaign. So far, his attempts to do so have been haphazard. He has not ruled out criminal prosecutions of those who authorized the constitutional wrongdoing — although it remains unclear whether such prosecutions will take place — stating that no one should be above the law. Yet, despite pressure from Senate Judiciary Committee Chair Patrick Leahy, Obama has opposed establishing a “truth commission” on the grounds that a backward-looking investigation would not be productive. However, in the wake of the abuses that took place under the previous administration, it may be useful to hold a larger national discussion about the uses of U.S. intelligence, like in the mid-1970s during the Church Committee hearings. Such an initiative would make more information public and promote true reform, which the U.S. intelligence community has yet to experience.

Erin Fitzgerald is chair of the G8 Research Group at the Munk Center for International Studies, University of Toronto, and a contributor to Foreign Policy In Focus.