April Doss served as Senior Minority counsel for the Russia investigation on the Senate Select Committee on Intelligence and, prior to that, as the head of Intelligence Law at the National Security Agency. She currently chairs the Cybersecurity and Privacy practice at the law firm Saul Ewing Arnstein & Lehr.
The attorney general has said the intelligence community was “spying” on the Trump campaign—language that risks a panoply of harms.
Attorney General William Barr has repeatedly used the word spying to refer to the counterintelligence investigation into Russian contacts with Donald Trump’s team in 2016. Barr’s loose use of language risks a panoply of harms, undermining public confidence in three vital goods: the nonpartisan nature of the intelligence community’s work, the generally robust framework for intelligence oversight, and the facts and conclusions of the intelligence community itself.
Does Barr know what he’s saying? In a recent interview on CBS, Barr said that “as a lawyer, I always interpret the word treason not colloquially, but legally.” He also touted his intelligence background from his early days at the CIA. Like lawyers, intelligence analysts are trained to carefully consider the importance of their words. Analysts and lawyers alike know that word choice makes a difference in shading, tone, and received meaning, and that the audience matters when choosing your words.
“Spying” is neither a legal standard nor a term of art. None of the statutes, executive orders, or minimization procedures that govern U.S. intelligence activities refers to “spying.” Each of those legal authorities uses much more precise language, such as “electronic surveillance,” “covert action,” or the “collection, processing, analysis, and dissemination” of information.
Spying is a word that’s been shaped by pop culture, invoking John le Carré novels and James Bond movies. It also carries with it the echoes of the mid-1970s Church and Pike Committee investigations into abuses by the intelligence community (IC)—investigations that Barr says shaped his views of intelligence operations. Barr’s use of the word spying to describe a counterintelligence investigation can only have a negative effect on public perception. This is dangerous in a number of ways.
In fact, all of the information published in Special Counsel Robert Mueller’s report indicates that there was a lawful, proper predicate for the work done by the FBI and others in investigating whether the Russian government was attempting to cultivate relationships or curry favor with members of the Trump campaign and organization in order to sway American politics in 2016. There’s been no credible indication that the investigation was improperly motivated or driven to achieve partisan aims in the United States.
Barr’s own references in his CBS interview to the lessons of intelligence reform in the 1970s are apt ones. During the hearings held by the Church and Pike Committees, bipartisan groups of elected officials brought the U.S. IC to account for a host of misdeeds committed since the end of World War II. Congress concluded that the FBI, CIA, NSA, Defense Intelligence Agency, and military intelligence had collected too much information, used it improperly, and targeted people and groups for reasons having more to do with “subversive activity”—combatting social unrest—than with foreign intelligence threats. The committees concluded that these abuses had been made possible, in part, by a loose and permissive framework of authorities enabling surveillance and tepid congressional and executive-branch oversight.
The Church Committee issued a multivolume report recommending a comprehensive series of reforms that would keep the IC accountable to the American public and force it to live up to its best ideals. Following those recommendations, stringent oversight mechanisms were put in place across all three branches of government: The permanent House and Senate intelligence-oversight committees were created, legislative frameworks such as the Foreign Intelligence Surveillance Act were passed, and Executive Order 12333 defined the scope of IC agencies’ authorities and required attorney-general-approved guidelines to minimize the risk of intrusion on the rights of U.S. persons.
The framework of reforms launched by the Church and Pike Committee investigations hasn’t been perfect, but it’s been continuously strengthened since then, with the establishment of independent boards and commissions such as the Privacy and Civil Liberties Oversight Board, the appointment of inspectors general at multiple levels and within every component of the IC, the widespread appointment of privacy and civil-liberties officers, and other moves toward increased transparency.
While these reforms have not precluded missteps, the track record of the past half century demonstrates that the oversight framework is indeed robust: When IC agencies, or individuals within them, overstep their bounds, those actions have often been identified quickly and addressed with a combination of tailored responses or systemic reforms. Most of the intelligence controversies of recent years have been focused not on unauthorized activities, but on whether activities approved by judges and permitted under the law are consistent, from a public-policy perspective, with American values.
That’s a very different problem than a vague and unfounded notion that the IC, or its officers, has gone rogue. In other words, the framework put in place by the Church Committee has worked quite well to prevent improper surveillance against Americans. To throw around terms such as spying unfairly—and inaccurately—suggests that the IC is still playing fast and loose.
One of the many abuses identified in the Church report was its conclusion that information had been collected and disseminated in order to serve the purely political interests of an intelligence agency or the administration, and to influence social policy and political action. The report described how these politically motivated abuses had taken place under every administration from Franklin D. Roosevelt to Richard Nixon.
This history is one of many reasons so few political appointees are in the IC, and why IC personnel are “further restricted” under the Hatch Act and barred from political activity. Today, at the working level where the daily grind of intelligence gathering is done, most IC personnel stay in the business for many years and through multiple administrations; partisan domestic politics rarely enters into their day-to-day intelligence work. The baseless insinuations that it does will do lasting damage to the credibility of the IC.
It’s ironic, perhaps, that the 1976 congressional investigation that so influenced Barr found that a series of attorneys general had been guilty of politically motivated misuse of the intelligence apparatus. In his response to the Mueller report, Barr has argued that there can’t be obstruction of justice without an underlying crime, leaving commentators to scratch their head over difficult questions of divining people’s intent from their actions. We may not be able to divine Barr’s intent in making repeated references to “spying.” But we know he’s producing a detrimental impact.