The Oversight of Outsourcing US Intelligence After 9/11

Inhaltsverzeichnis

1. Frontmatter

2. Chapter 1. Introduction

   Bülent Sungur

   Abstract

   This chapter introduces the key terminology about outsourcing intelligence and provides theoretical framework for the book. The line between the public and private sectors has been blurred and debate on this topic has moved to intelligence tasks much further than it has ever before. The leading firms and individuals at the centre of this issue are a new phenomenon known as Private Intelligence Contractors or PICs. PICs are private entities and persons who perform a broad scope of intelligence tasks for intelligence agencies. Remarkably they provided sensitive services such as intelligence collection, interrogation, intelligence analysis and target identification which were customarily carried out by government employees. PICs have therefore challenged the traditional approach which assumes that sensitive intelligence tasks should be performed by government officials because of their importance for national security. This chapter also provides the rationale for testing the principal-agent theory to examine the research questions through three cases studies after 9/11: (1) the Iraqi WMD issue, (2) the Abu Ghraib prison scandal, and (3) US covert drone operations. The principal-agent theory is a useful approach for demonstrating whether an agent pursues the best interest of the principal. To measure the agency problem in each case, this chapter first determines the role(s) of the actors, then demonstrates how to measure agency problems by the implementation of police-patrol and fire-alarm oversight mechanisms. The main focus here is not only that private contractors were delegated to intelligence tasks but also that the executive principal tried to increase his discretion and achieve his hidden agenda by mismanagement, politicisation and the outsourcing of intelligence. This chapter also discusses the response of the executive and legislative principals for each case and Congressional attempts to fix the existing police-patrol mechanism.

3. Chapter 2. The Evolution of Outsourcing US Intelligence and Intelligence Oversight Mechanisms from the Cold War to 9/11

   Bülent Sungur

   Abstract

   This chapter explores the intelligence mission in the US, considers the evolution of congressional and executive intelligence oversight mechanisms, including the legal bases of outsourcing intelligence from the Cold War to 9/11. For the outsourcing of intelligence before 9/11, both legislative and executive principals produced legal rules, policy letters and directives to regulate intelligence contracting and prevent the delegation of contractors to inherently governmental functions. However, there were significant loopholes in these rules which hampered their implementation. In addition, information asymmetry was evident for Congress due to the lack of information about the contracting inventories of the IC.

   The brief history of intelligence oversight in the US from the Cold War has demonstrated that executive principals could exploit and mismanage the secret capabilities of the IC to achieve their hidden agendas. In the 1970s, Congress responded to the mismanagement of the IC and to intelligence scandals by establishing new rules and entities, particularly the SSCI and the HPSCI. Despite these landmark evolutions, new congressional control mechanisms could not prevent the subsequent Iran-Contra scandal. Furthermore, under the Reagan administration, congressional intelligence panels began to experience turf wars when the executive policies clashed with the policies of other groups on Capitol Hill. Eventually, regarding congressional oversight, the new monitoring rules and entities were not adequate to monitor the activities of the IC before 9/11.

   During the Cold War, the IC hired contractors to increase its technological capacity against the Soviets. From military satellite projects to communication technologies, contractors supported intelligence agencies, but because of the narrow intelligence focus on the USSR, intelligence tasks were dominated by federal employees. By the end of Cold War, this trend began to evolve in favour of private actors and because of new operational requirements in several parts of the world, contractors were delegated to carry out intelligence tasks to fill the expertise gap. The executive principal’s policies for the downsizing of the federal workforce, including the IC, increased the need for the skills of private actors. In the 1990s, the US suffered several terrorist attacks around the world but these attacks did not stimulate US decision-makers to transform the IC to address these new security threats.

4. Chapter 3. The Mismanagement of Contractors Over the Iraqi WMD Issue

   Bülent Sungur

   Abstract

   This chapter presents an analysis of the mismanagement of contractors over the Iraqi weapons of mass destruction (WMD) issue. In 2002, President Bush had accused Iraq of developing WMD and for its close ties with the perpetrators of the 9/11 attacks. Subsequently, Congress demanded a National Intelligence Estimate (NIE) on Iraq from the IC because of the increasingly belligerent tone of the White House. Although the Hill did not or could not verify the estimates in the October 2002 NIE, Congress voted for the resolution which gave the president authority to initiate a war against Iraq. Notably, the legislators chose to trust and depend on the IC’s assessments of Iraq’s nuclear programme, so congressional police-patrol oversight failed to detect the false evidence which had also been analysed by the contractors in the October 2002 NIE. After the end of major operations in Iraq, concerns about the existence of WMD were raised in Congress, leading to the SSCI investigating the IC’s arguments in the NIE. It was disclosed that the CIA had relied on the supposed independence and expertise of PICs to sow doubts about the conclusions of other agencies (INR, DOE, UN, IEAS) regarding the purpose of the tubes. In other words, to please the executive principal, the CIA had used contractors to provide evidence based on the desired results; as an agent, however, the Agency had misled other principals—Congress and the American public—about the purpose of the aluminium tubes. Nonetheless, the partisanship atmosphere among voters, the self-criticism of the media, and negligence in regard to the evaluations of international organisations did not lead to a detailed examination of the role of contractors in the notorious NIE. Since Congress held the CIA responsible for the flaws in the October 2002 NIE, contractors were able to stay out of the oversight of the Hill. Although executive investigations highlighted the contractors’ role particularly in the tests of the aluminium tubes, they did not recommend any sanctions against or regulations for the contractors. The politicisation of intelligence in the October 2002 NIE and the failure of the IC before the 9/11 attacks led to the creation of a new head of intelligence, the DNI: Congress established a new agent in the IC who was responsible for the whole of the IC, and punished the former agent by abolishing the DCI post. Although the new DNI created a new layer of bureaucracy and raised concerns about efficiency, the primary role of the CIA in the IC effectively came to an end.

5. Chapter 4. PICs and Abu Ghraib

   Bülent Sungur

   Abstract

   This chapter discloses the waste and abuse by PICs in Abu Ghraib prison. After the 9/11 attacks, human intelligence gathered through the interrogation of suspects and captured terrorists became significant for the US military and intelligence agencies to find the perpetrators of the attacks. However, due to the overseas operations in Afghanistan and Iraq, the US Armed Forces and intelligence agencies were in dire need of expert personnel to provide translation and interrogation services because of the increasing number of detainees. To meet these language requirements, the US government raised spending on the outsourcing of these tasks and hired vast numbers of PICs. The employment of a large number of private contractors widened the scope of PICs’ tasks, and contractors were also delegated to carry out interrogation tasks, which were mainly assumed to be a governmental function. The Bush administration cleared the way for the implementation of harsh interrogation techniques against detainees, and immunised contractors from Iraqi laws through CPA orders. In addition, the weak administrative monitoring of contractors in the Abu Ghraib prison, the impact of PICs on the contractual process and oversight system, and the lack of congressional patrolling led to excessive discretion being devolved to private contractors. These factors clearly created ideal conditions for the perpetration of terrible abuse and torture in the prison. Because their ownership of the management of interrogation tasks enabled them to control the contractual process, contractors had partly captured the system in Abu Ghraib. Although third parties such as the media and civilian and international organisations reacted to the abuse and torture when it was revealed, reactions mainly centred around the severity of the torture and there were inadequate fire-alarms to demonstrate the wide-ranging role of contractors in the Abu Ghraib case. As a response to the fire-alarms, the executive principal tried to downplay the abuse as a failure to monitor a few “bad apples”, and extended the contracts of the responsible companies. Congress had to deal with a turf war over the delegation of contractors to perform interrogation tasks. Although some reforms were achieved by Congress in legal systems such as the extension of the MEJA and UCMJ rules, they were limited to the DOD’s overseas operations.

6. Chapter 5. The Outsourcing of US Covert Drone Operations

   Bülent Sungur

   Abstract

   This chapter reflects on the outsourcing of US covert drone operations in Pakistan, Yemen and Somalia as well as the scope of PICs’ roles in these operations. After the 9/11 attacks, the AUMF approved by Congress and the MON signed by President Bush provided broad authorisation and discretion to the Executive to implement counter-terrorism measures through covert drone programmes in Pakistan, Yemen and Somalia. Technological improvements in unmanned aircraft led to the rise of covert drone operations because of their risk-neutral nature. However, as the demand for drone strikes increased, the agencies became increasingly dependent on contractors because of their expertise in the maintenance, loading, launching and landing of drones as well as piloting, and the analysis of intelligence data and video images. Although the CIA’s and JSOC’s covert drone programmes in Pakistan, Yemen and Somalia transformed into a kind of aerial warfare and resulted in civilian casualties, the police-patrol oversight by Congress failed to oversee adequately the CIA’s targeted killing programme and contractors’ involvement in drone strikes. The broad discretion of the Executive for fighting the perpetrators of the 9/11 attacks, the implicit support of the committees for targeted killings overseas, and finally congressional indifference were the main contributing factors for the failure of congressional monitoring. Because Congress failed to detect the problems in the CIA’s covert drone strikes and the delegation of contractors to some related tasks, third parties set off fire-alarms. Violation of rules led to moral hazard and adverse selection problems due to the delegation of contractors to perform inherently governmental tasks. Further, external fire-alarms revealed the international opposition to covert drone strikes and an increasing anti-American attitude. However, due to the support of the American public, domestic fire-alarms could only effectively ring for the extrajudicial killing of Americans overseas rather than the civilian casualties in Pakistan, Yemen and Somalia. Despite the outcry from the third parties over the vast civilian casualties in covert drone operations, initial congressional responses in 2010 did not translate into any reforms since the American public did not oppose the drone attacks. Although several hearings were held in Congress on targeted killings by drone overseas, they were of an informative nature and did not instigate any legislative reforms. Extrajudicial killing of Americans by drone strikes overseas did, however, induce the Senate to push the Obama administration to disclose the legal bases of the targeted killings by using nomination power. The reaction of Congress showed that members were more concerned about the extrajudicial killing of Americans than about overseeing the executive’s counter-terrorism policy or addressing the mismanagement of drone strikes in terms of international law. Instead of overseeing the role of the CIA in the targeted killing programme, the SSCI waged a turf war against the other committees on Capitol Hill and the president in order to keep its influence over the drone programme. Ultimately the covert drone programme became politicised because the multiple principals struggled against each other for the implementation of their own policies. Consequently, the new Trump administration revoked the weak reporting system, and oversight of the covert drone programme returned to its original form. Overall, therefore, under the umbrella of governmental agencies, contractors could remain off the radar of the principals.

7. Chapter 6. Conclusion

   Bülent Sungur

   Abstract

   This chapter evaluates key findings of the study and suggests some considerations for the strengthening of police-patrol oversight. Outsourcing US intelligence dramatically increased after 9/11 because of the expertise and personnel gap in the IC after 9/11. The more the complexity, the range of tasks and the need for new technologies increased, the more money had to be spent on outsourcing intelligence and the number of PICs rose, hence the IC began to rely heavily on private actors. However, PICs overcame existing monitoring mechanisms through one or a combination of the following reasons: their close relationship with the IC or US military, the politicisation of intelligence by the executive principal, inadequate congressional oversight, weak administrative oversight, ambiguous contractual processes, partly regulatory capture of the tasks and the IC’s dependency on PICs. Further, when police-patrol oversight failed, by information asymmetry (moral hazard and adverse selection), PICs could violate legislative rules and goals by performing inherently governmental tasks, colluding with the IC to support the executive principal's policies, capturing control of the task, capturing control of the contractual process, waste and fraud and abuse. So the main argument of this chapter is that the greater the changes in the ICs’ use of PICs, the greater the problems faced by those responsible for oversight.

8. Backmatter