An Attack on Inspector General Signals Something Much Bigger

April 22, 2020
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We expect a lot from the intelligence community. In addition to traditional missions like providing warning and supporting warfighters, intelligence agencies now provide assessments on transnational crime, the environment, and global health. They monitor great powers, regional powers, and non-state actors. They track day-to-day events and offer long-term estimates. And they receive an increasing share of the federal budget: last year the combined national and military intelligence budgets topped $80 billion.

All of this points to a need for stronger oversight. Recent events, however, point in the opposite direction.

In early April, President Donald Trump fired Michael Atkinson, the inspector general of the intelligence community. The president was not shy about his reasons. For months, he has publicly questioned Atkinson’s integrity and privately complained about his perfidy. The source of Trump’s anger was Atkinson’s role in shepherding an anonymous whistleblower’s complaint that the president had enlisted the president of Ukraine to deliver dirt on Joe Biden. Upon receiving the complaint, the inspector general launched an investigation and determined that it was credible. At that point, he forwarded the complaint to the acting director of national intelligence, setting in motion a chain of events that led to Trump’s impeachment.

 

 

Trump reportedly took this as proof that Atkinson was disloyal, an unforgivable sin in this administration. It is not, however, substantive grounds for dismissal. House Republicans began an investigation into Atkinson’s handling of the whistleblower complaint in January, but so far they have not turned up anything improper, nor anything that would rise to the level of a firing offense. Multiple witnesses confirmed the account during Trump’s impeachment hearing, as did the White House’s call records of Trump’s conversation with Ukraine’s president last summer.

Exacting revenge on government officials for doing their jobs is bad. Going after inspectors general is especially dangerous because they serve as watchdogs for Congress and the public. Going after the intelligence community inspector general is worst of all, due to the uneasy place of secret intelligence in a democracy. Intelligence agencies rely on secrecy to do their work, but a democracy requires transparency in order to hold them accountable and to ensure that agencies execute policy direction faithfully, without exceeding their mandate or abusing their privileges.

Inspectors general are vital. They serve a “boundary spanning” function, acting simultaneously as internal and external watchdogs. An inspector general is part of the hierarchy of its respective agency, but its activities are not subject to internal sanction. By law, inspectors general have broad access to organizational practices, even when organizations operate behind multiple layers of classification. Beginning with the Inspectors General Act of 1978, Congress has steadily expanded their powers. Most recently, the Inspector General Empowerment Act of 2016 ensures that they have “have timely access to all records, reports, audits, reviews, documents, papers, recommendations, or other materials available.”

If inspectors general span the boundary between internal and external oversight, they also straddle the barbed-wire fence between Congress and the White House. They are the vehicles of oversight from both directions, helping to mediate between executive interests in policy execution and Congressional demands for accountability. This is akin to what Uri Bar-Joseph called multilateral control, which has proven to be a useful safeguard against intelligence intervention in democratic societies.

Inspectors general have uncovered and corrected intelligence abuses in the past. During the height of the Vietnam War, for example, Presidents Johnson and Nixon both authorized a CIA program that sought to discover foreign agitators working within the antiwar movement. Under the auspices of Operation Chaos, as it became known in 1968, the CIA ultimately opened files on thousands of American citizens, including 14 members of Congress. CIA officers also infiltrated protest groups and cultivated internal sources. They found no evidence that foreign states were sponsoring or organizing the movement, however, and by the early 1970s some officers expressed concern that the program exceeded the agency’s foreign espionage mandate. Their frustration went nowhere until the fall of 1972, when CIA Inspector General William V. Broe sent a warning letter to the executive director, William Colby. Director of Central Intelligence Richard Helms then instigated a formal review of the program. According to intelligence historian John Prados, Broe’s intervention “marked the beginning of CIA’s shift away from domestic surveillance.”

Importantly, Broe’s warning came not as the result of a specific review of Operation Chaos, but as a by-product of a normal audit. Members of the inspector general team conducting a periodic review of the Directorate of Operations discovered signs that domestic surveillance had become “indiscriminate.” In the words of one member of the inspector general’s staff, the review turned up “broader concerns on the part of personnel in the field as to whether the agency was being made part of some thought police program.” The effort would have probably been impossible without having a staff in place that had the ability to speak candidly with officers throughout the CIA.

The Department of Justice review of FBI procedures during the investigation of associates of the Trump campaign in 2016 provides a more recent example. Inspector General Michael Horowitz’s report uncovered serious problems in how the Bureau handled information that was used in Foreign Intelligence Surveillance Act (FISA) applications. A subsequent inspector general report found that errors in FBI procedures were not just related to the investigation of the Trump campaign’s alleged ties to Russia. The inspector general office reviewed 29 FISA applications going back to 2014 and found “a deficiency in the FBI’s efforts to support the factual statements in FISA applications… [that] undermines the FBI’s ability to achieve its ‘scrupulously accurate’ standard for FISA applications.” These are damning findings, as even defenders of the FBI acknowledged. Horowitz was granted a level of deference as inspector general. His conclusions were impossible to ignore.

These episodes underscore the value of an independent inspector general. Controversial programs were able to survive until the inspectors general stepped in. Operation Chaos survived an audit from the White House Office of Management and Budget, but it could not survive the attention of the inspector general staff. Similarly, FBI errors continued for years — despite repeated warnings from civil libertarians about flaws in the FISA process — until the inspector general began to scrutinize the program in earnest.

Congress has traditionally sought to protect inspectors general, and it has pushed back against presidential attempts to replace them. Upon taking office, President Reagan tried to fire all of the inspectors general appointed by President Carter. Senate outrage followed, leading Reagan to reinstate five of them, and setting the precedent that the inspectors general would not be expected to resign at the end of any given administration. Executive action has been infrequent since that time, and rare exceptions have drawn bipartisan criticism. The intelligence community has been spared entirely.

Congressional protection has been enough to safeguard inspectors general from political pressure for more than 40 years. About half of the corps of inspectors general are appointees serving at the pleasure of the president, but past leaders have been reluctant to dismiss them. After Trump’s election in 2016, members of his transition team reportedly warned some inspectors general that they would be removed, only to reverse course later. Trump’s action against Atkinson, however, indicates that he is not bound by tradition or deterred by Congress. Upset at Trump’s decision, some senators are demanding a detailed explanation from the White House.

They should go further. Insulating inspectors general from presidential pressure is necessary because of three converging trends that threaten the delicate balance between secrecy and democracy. The first is eroding “norms of mutual toleration and institutional forbearance.” Government works best when institutional actors recognize the value of adhering to expected behaviors. Parties compete for votes, and bureaucracies struggle for wealth and autonomy, but they view each other as legitimate rivals and play within a set of spoken and unspoken rules. Intense partisanship and political tribalism are putting those assumptions under strain.

This exacerbates the second trend: declining public trust in government stretching back to the 1960s. Faith in institutions is important for efficient administration. Courts have long granted the presumption of regularity, or the belief that government officials are working in good faith. This belief may sound naïve, but it encourages institutions to operate without crippling under the weight of perfectionism. In this sense it is a useful fiction; even if we know that there is misconduct in government, we assume most of the time that there isn’t so that institutions can go about their business. But this will become increasingly untenable as public trust in government dwindles, and there are already signs that the courts are unwilling to grant the presumption of regularity to the Trump administration.

The intelligence community has been relatively immune to declining public trust in government. An NPR/PBS/Marist College poll in summer 2017, for instance, showed that 60 percent of respondents had “a great deal” or “a good amount” of trust in the intelligence community. This is a great deal higher than Congress (29 percent) or the Trump administration (37 percent). And while there is some partisanship at work here — Democrats have undoubtedly become more favorable towards intelligence because of the Russia controversy — this level of support is not new. Historical data shows that a majority of Americans have held a favorable opinion of intelligence, at least since the 1980s. Other research shows continued support for the intelligence community, even as the public becomes more skeptical in general.

Past results do not guarantee future performance, of course, and opinions may sour. The transparency movement that began after the Cold War — the third converging trend — has led intelligence to play an increasingly public role in policy debates. It has also put the intelligence community in a precarious position. Policymakers are tempted to politicize intelligence when the public expects that estimates on current issues will be declassified. The more that intelligence agencies are tied to certain policies (and certain policymakers), the more that they will be roped into intense partisan fights. This will make it more difficult to sustain broad support.

Stronger inspectors general can help to buffer the intelligence community from all three of these trends. Insulating them from political pressure will go some distance to restoring the norm that career officials are subject to legal and procedural rules, not to the whims of any given leader. In so doing they can also restore public trust that intelligence agencies are operating under effective oversight and are not free to improvise in ways that exceed their mandate. If the inspectors general succeed, intelligence agencies can exploit the blessings of secrecy without undermining the democratic demand for accountability.

For all these reasons, Congress should review existing protections for inspectors general in the intelligence community, and perhaps consider some new ones. It might, for example, revisit Sen. Susan Collins’ proposal for fixed terms as a way of removing the presidential temptation to purge the ranks. Such changes will not solve the immediate crisis, but they might help to rebuild confidence when new leaders come into office.

 

 

Joshua Rovner is associate professor in the School of International Service at American University. In 2018 and 2019 he was scholar-in-residence at the National Security Agency and U.S. Cyber Command. The views here are his alone.

Image: White House (Photo by Tia Dufour)