Getting the T’s and C’s Right: The Lessons of Intelligence Reform

The U.S. Intelligence Community (IC) is gearing up for another season of change. With a new Administration and Congress, policymakers will again consider whether and how to revamp the IC. As they do so, we hope they take on board the lessons we learned over the past decade and a half of intelligence reform.

The Office of the Director of National Intelligence (ODNI) is perhaps the most visible manifestation of the changes that swept through the IC following 9/11. We were both at the ODNI at its creation. One of us was part of the transition team that stood up the ODNI, worked in a range of senior leadership positions within the ODNI and the IC, and remains with the ODNI to this day. The other joined the ODNI weeks after stand-up and became the IC’s first Civil Liberties Protection Officer, a position he held for 14 years.

We have been part of every iteration of the ODNI and have seen the highs and lows, the good and the bad, as the IC has remade itself. We have learned valuable—and painful—lessons about what it means to lead and integrate a community of 17 unique elements, all with different legal authorities, cultures, roles, and bosses.

The new Administration should engage with the IC, Congress, foreign partners, and other stakeholders to bake in what’s worked, and avoid repeating what hasn’t. We think of the key areas as the T’s and C’s of intelligence reform:

  • Trust: We should institutionalize existing ethical norms of speaking truth to power and selfless dedication to mission under the rule of law.
  • Transparency: We should further embed and strengthen the institutions and processes that have enhanced transparency, and make sure they are adequately resourced.
  • Collaboration: We should ensure that the Director of National Intelligence (DNI) and IC leadership are aligned on the importance of collaboration and integration, and that the conductor and the players embrace their roles.
  • Clarity: We should ensure that the DNI’s statutory authorities are clear, understood, and accepted by all stakeholders, so that the DNI can provide leadership that ensures that the whole of the IC is greater than the sum of its parts.
  • Continuity: We should focus on meaningful, beneficial change driven by steady IC leadership.

Earn Trust

We were there as the IC weathered its share of storms over the past decade. The IC has been accused of not doing enough to prevent attacks such as the shootings in Fort Hood, Texas in 2009 and the Boston Marathon bombings in 2013. It has also been charged with overreach in how it collects intelligence, particularly after the disclosures of Edward Snowden.

We believe that the IC’s ability to surmount such controversies depends on one thing above all else: trust. Earning trust requires pursuing excellence in tradecraft, acting with integrity, seeking the truth and speaking the truth to power, and honoring our oaths to support and defend the Constitution. This includes performing rigorous analytic work and staying true to that work even when inconvenient from a political or policy standpoint.

In our experience, intelligence officers have remained true to those core IC principles. As lawyers, we have been deeply impressed with how dedicated intelligence officers are to carrying out their mission under the rule of law. They avidly seek and follow legal advice, respect the role of oversight institutions, and take seriously their commitment to provide the best intelligence to policymakers, without regard to whether the information will be well received. The nation’s leaders must support conduct that reflects these core ethical principles, and resist the temptation to pull the IC into the political debate of the day.

Be Transparent

When we started in the IC, we quickly absorbed the imperative of protecting intelligence sources and methods. Secrecy is essential to intelligence, but it can also breed suspicion and distrust.

We learned this the hard way. In June 2013, Edward Snowden’s unauthorized disclosures triggered a crisis in confidence in the IC, raising concerns that it had gone too far in its collection activities. Misperceptions abounded about how the IC protects civil liberties and privacy, and the IC scrambled to release accurate information, while continuing to protect sources and methods.

We were shocked at how readily the public seemed to accept the most extreme allegations about the IC. We should not have been. For decades, the IC had done its best to draw as large a protective circle around its core secrets as possible. This included key aspects of the extensive legal framework that governs the IC and protects civil liberties and privacy. We learned that it is not enough to have a robust protective framework if it operates largely outside of public view. We also need to better inform the public about how the IC conducts itself under the rule of law.

Enhancing transparency while still protecting sources and methods is easier said than done. It requires leadership commitment at the top, widespread buy-in from the workforce, and a great deal of painstaking dedication and effort to ensure that information is accessible and understandable by people not steeped in these issues.

We believe the IC has learned this lesson well; it has been proactively engaged with the American public and released more information than ever over the last decade. For example, the IC published an enormous volume of information regarding its use of surveillance authorities and how it protects privacy and civil liberties (check out IC on the Record and Intel.gov).

But the IC cannot let up on this progress. In a transparent democracy, for intelligence programs to be sustainable over time, public trust and support is essential. The IC must press ahead in promoting transparency while continuing to protect sources and methods; it must also continue to engage with Congress, the American people and our foreign partners to explore how best to protect privacy and civil liberties as we carry out our vital national security mission.

 Collaborate

In our view, the DNI must be the conductor for the IC. A conductor leads the orchestra from preparation to recital, with the goal of delivering a harmonious musical experience. The conductor does not actually play any of the instruments; that role is left to the musicians themselves, experts in their fields. So, too, the DNI must ensure that each element plays to its strengths, and works harmoniously with other elements, so that the whole is greater than the sum of its parts.

The ODNI was created because Congress and the President believed that the IC had failed to “connect the dots” in a way that might have prevented the tragic terrorist attacks on 9/11.  By creating the role of the DNI, the head of the CIA could focus solely on running the CIA and would no longer also have to lead the entire IC, comprised of 17 different organizations. The 9/11 Commission found it was too burdensome for one person to do both jobs; a DNI should focus on ensuring that the entire IC operated together as an integrated whole, and the Director of the CIA should focus on that agency’s specific operations.

When we started in 2005, it was immediately clear to us that the role of integrating the IC was indeed a full-time job. As we engaged with officers from across the IC, we learned that while people understood the value of collaboration, the overall culture was primarily agency centric. Each agency worked doggedly to accomplish its own mission, largely within its own silo. To be sure, people on the “front lines” were working together more closely than ever to combat terrorism, but the closer one got to headquarters, the more interagency relationships were characterized by competition and suspicion, rather than by collaboration and trust. This resulted in less coordinated and integrated outputs from the IC, and more disjointed inputs to policymakers.

The ODNI’s mistakes along the way did not help the path to intelligence integration. For example, the ODNI draws heavily from the ranks of IC elements to meet its staffing needs, including for its senior leadership. Such a staffing approach is beneficial in many ways, but also has its pitfalls. Particularly in the early years, ODNI officials that came from operational backgrounds had to learn to lead on IC-wide policies to integrate the Community, rather than delve into tactical operational matters best left to the IC elements. In order to ensure this, the ODNI had to clearly understand and articulate its role to its new officers, something that the ODNI was still learning in those early days.

In addition, in order to oversee the Community, the ODNI must “task” agencies to generate reports, provide data, and take similar actions. If not managed carefully, such taskings can be onerous for the agencies and distract them from their mission. Many such taskings in fact originate from other sources—notably the White House and Congress, which understandably see the ODNI as a useful coordination point for information requests. But in the early days, the ODNI did not manage this process well, leading to consternation and friction between the ODNI and IC elements.

While ODNI mistakes triggered agency resistance, there wasn’t much need for a catalyst. Many in the IC were already primed to beat back perceived power grabs by this upstart new agency. We recall many meetings where lawyers came armed with printouts of their agency authorities, ready to push back on the ODNI’s proposed actions. Our own copies of the ODNI’s authorities became so dogeared, tabbed, highlighted, and underlined, as to become nearly unreadable.

Working through interagency friction takes time away from the hard work of intelligence reform and makes it more difficult to build the trusted relationships needed to integrate the community.

We believe that, over time, the ODNI and the IC got it right. Under the leadership of successive DNIs, the ODNI became focused on the grueling, unglamorous work of coordinating and integrating the IC. Many across the IC also embraced the need for intelligence integration, information sharing, and collaboration. Agencies now work together with a degree of seamlessness that would have left our younger selves agog with disbelief.

The ODNI has become the conductor of an orchestra of highly skilled and dedicated players that is working more collaboratively together than ever before. But this success is fragile and still highly dependent on relationships, absent strengthened DNI authorities (which we address below). The next DNI must ensure that the ODNI’s focus remains on the hard work of creating and maintaining the conditions that the IC needs to flourish – the foundational policies, infrastructure, and technologies necessary to enable information sharing and collaboration, and to encourage innovation and creativity.

Clarify Authorities

While we are proud of all that has been accomplished, given the dependency on relationships between the DNI and other IC agencies, we are also acutely aware of how quickly hard-earned ground could be lost. Agencies could fall back into their silos, trust could be damaged, and suspicion could undermine confidence.

In the new year, we expect to see the familiar scene of oversight committees quizzing the nominee for DNI on which of the ODNI’s authorities should be clarified or strengthened. As is typically done, the nominee will likely demur, promising to return if they feel such changes are needed.

Such reticence is understandable. The DNI must conduct an orchestra of willing, active participants, who agree to move forward together. One cannot order the musicians to make music in harmony; the DNI must lead, not command.

That said, the ODNI’s legal authorities are not a model of clarity and are undercut by a legal mandate to not override the authorities of other departments. Effective leadership requires clear authorities and we believe the DNI’s authorities as a whole should be reviewed. This should include carefully delineating how the DNI’s authorities interact with those of IC components, rather than relying on a blanket subordination of the DNI’s authorities to those of other IC components.

Because people are at the heart of the IC and there is no job that can be successfully accomplished without them, we would focus first on the DNI’s personnel authorities.  Most IC officers reside within another department and are subject to dueling personnel systems and requirements.  This dynamic can pull people apart rather than bringing them together.  We experienced the negative effects during sequestration in 2013, when IC officers sitting side-by-side doing the same jobs were treated 180 degrees differently based on which agency paid for their position.  This demoralized those affected and undermined the idea that we were one community.

The DNI’s authority to ensure consistent treatment in personnel matters across agency boundaries should be strengthened. Of course, consultation with the heads of IC elements and departments should still be required, and we are confident that such consultation would nearly always translate into agreement. Ultimately, however, clear authorities here will help enhance cohesion in the community.

Change, Not Churn

Finally, we cannot stress strongly enough the importance of continuity and stability. We need change, not churn.

Change is vital for innovation and growth. As we go forward, the ODNI must continue to do all it can to anticipate future IC-wide challenges and lead the IC to tackle those issues together. The DNI must have eyes on the horizon and help the IC get ahead and stay ahead of our adversaries while understanding and mitigating risks.

But there is a big difference between ensuring the IC is sufficiently flexible to anticipate and adapt to the rapidly changing world we live in, and churning the IC’s personnel, processes, and organization every few years.

Unfortunately, we have seen enough churn within the IC to last a lifetime. In 15 years, there have been eight different DNIs; seven have served for two years or less. The ODNI has been reorganized a half dozen times during our tenure. Such frequent change is confusing not only in the moment, as people must shift to new organizations, bosses, and priorities, but also over the long term, as it calls into question whether the ODNI can follow through on major initiatives.

Sustainable, lasting reform takes a long-term vision, and the patience to do the painstaking work to achieve it. Policymakers should spend less time revising organization charts, and more time making sure that the IC leadership team is composed of selfless servant leaders who have the support and resources necessary for success. This includes a diverse leadership team and workforce so that the IC can benefit from the full range of Americans’ experience and expertise. This also includes senior IC leaders with significant experience in intelligence, both because of the complexity of the job and because such a person is much more likely to get the interagency respect required.

And Resilience…

We are heartened by the IC’s resilience, which we have seen time and again.  The IC has undergone many crises; each seemed all-consuming in the moment, but the IC emerged from them all a stronger, more cohesive, and more resilient community.

One of our key lessons learned has been to have faith in the professionalism, integrity and resilience of the IC work force.

We hope that 2021 will bring about thoughtful policies that support the IC’s identity as an integrated community of agencies and professionals, selflessly dedicated to protecting the nation’s security under the rule of law.

 

 

  

About the Author(s)

Alex Joel

Scholar-in-Residence and Adjunct Professor at the Washington College of Law, where he is part of the Tech, Law & Security Program. Until June 2019, he served as the Chief of the Office of Civil Liberties, Privacy and Transparency (CLPT) at the Office of the Director of National Intelligence (ODNI). Follow him on Twitter @awjoel.

Corin R. Stone

Scholar-in-Residence at the Washington College of Law. She is on leave from the Office of the Director of National Intelligence (ODNI) where, until August 2020, she served as the Deputy Director of National Intelligence for Strategy & Engagement. From 2014-2017, Ms. Stone served as the Executive Director of the National Security Agency (NSA).