The House Permanent Select Committee on Intelligence (HPSCI) sent an important bipartisan signal through Section 439 of the FY 24 Intelligence Authorization Act (IAA) that the U.S. Intelligence Community (IC) must do more to track how intelligence-sharing with allies and partners may contribute to civilian harm. While the Department of Defense (DOD) is required to report to Congress when a U.S. military operation kills civilians, intelligence agencies – until now – have not been required by law to track or report instances when the United States provides intelligence support for operations that result in civilian harm. Section 439 imposes a requirement to do just that.
Tracking and investigating how partners and allies use U.S. intelligence is important not only because of U.S. legal (and moral) culpability in the strikes it enables, but also to hold partners accountable and instill better civilian protection measures. As the United States continues to work more with partner forces, including through proxy warfare programs such as 127e and 1202, it will be even more crucial for Congress to keep tabs on how partners use U.S intelligence information.
Examining the Intel Sharing Problem
Section 439 of the IAA, which was enacted last year as Section 7326 of the National Defense Authorization Act (NDAA) for Fiscal Year 2024, requires the Office of the Director of National Intelligence (ODNI) to submit an annual report to Congress on civilian casualties caused by foreign government operations, including operations in which intelligence shared by the IC played a “significant role.” The provision requires ODNI report the following information: the date on which, and the location where, the operation occurred; the element of the foreign government that conducted the operation; the individual or entity against which the covered operation was directed; and other circumstances or facts that the Director of National Intelligence determines relevant.
Due to the lack of a statutory requirement until now, it is unlikely that either the IC or Congress have a full picture of where shared U.S. intelligence has led to civilian harm. But public reporting has brought to light concerning incidents where U.S. partners likely used U.S. intelligence in military operations that harmed civilians.
For example, members of Congress were alarmed by reports that the United States provided the Nigerian armed forces with intelligence related to a strike of an internally displaced persons camp in Rann, Nigeria that killed over 70 people and wounded at least 120.
Public reporting also indicates that the U.S. military has shared intelligence with Saudi and Emirati forces, enabling their bombing campaign in Yemen that has been widely criticized for indiscriminate attacks.
Absent stronger oversight, it is impossible to discern how allies and partners are using U.S. intelligence in military operations. In certain cases, the IC may be providing indirect support through intelligence sharing for partner operations conducted in a manner inconsistent with U.S. law and policy (including standards set, for example, in the DoD Law of War Manual and the Presidential Policy Memorandum on direct action).
The State Department has developed guidance to investigate reports of civilian harm involving weapons from the United States and recommend actions that could include suspension of arms sales. The same should be required for the sharing and use of U.S. intelligence information.
The HPSCI provision is a positive first step that will increase congressional oversight and executive branch transparency of intelligence sharing. But opportunities exist to strengthen the provision further, as Congress has done for the annual 1057 civilian casualty report. Ultimately, the IC and DoD’s interpretation and implementation of the statute will determine the annual report’s efficacy.
First, the ODNI will need to develop a definition to determine whether intelligence shared meets the “significant role” threshold for inclusion in the annual report to Congress. Will ODNI’s reports only include incidents where the U.S. provided tactical, real-time intelligence for targeting purposes? Or will reporting encompass intelligence provided prior to the strike to initially identify the person or object as a target? A broad definition would help Congress surmise the true scale of the issue and assess the impact of U.S. contributions.
Second, the IAA provision also specifies that covered operations include those conducted by a “foreign government.” But the United States may also provide intelligence to non-state entities, including state-supported militias and proxy groups. Congress should modify the provision to ensure “covered operations” include all foreign entities, including non-state actors, using U.S. intelligence for military operations.
Additionally, the provision does not cover all instances of U.S. intelligence sharing that may result in civilian harm. The IAA provision mandates reporting by ODNI, but other entities outside of the IC, such as the combatant commands (e.g., CENTCOM and AFRICOM) also share intelligence with partners. These entities are even more likely to share the type of tactical intelligence that results in civilian harm. The provision should be amended to include all agencies and components that share intelligence with foreign partners, regardless of their status as a member of the IC.
Finally, increased transparency concerning the scale and impact of U.S. intelligence sharing is crucial to support legislative deliberation and public discourse. The IAA provision focuses on providing classified information to Congress; a redacted and declassified version of the report also should be released to the public.
U.S. intelligence is a national asset and should only be used in ways consistent with U.S. law and policies. If partners and allies are not living up to these standards, then Congress must act to do something about it.