173

Chapter 5 - ‘Partnerships’ in trouble: The

emergence of accountability problems and triggers

This chapter examines how the intelligence community’s reliance on the private sector has

impacted on the intelligence accountability process between 2001 and 2009. Two parts of this

process are examined in detail: the occurrence of accountability problems and the

accountability holders’ awareness of, and reactions to, these problems. Accountability

problems typically emerge when the conditions for accountability to occur such as favourable

political and legal standards, accountability holders’ access to information and the availability

and the use of sanctions are not fulfilled. During the presidency of George W. Bush, the

accountability standards guiding public-private intelligence ‘partnerships’ were notably

affected by the government’s priorities and after 9/11 the executive and legislative branches

of government favoured effective security sometimes at the cost of efficiency and liberal

democratic values. In this context, deficiencies in the domain of contract management

became particularly apparent and the evolution of public-private intelligence ‘partnerships’

generated a need for more adequate legal standards. The growth of public-private interactions

also raised legitimate concerns about the influence of the private sector on the standards

followed by public accountability holders. In addition, accountability holders’ access to

information from private companies was complicated by a series of legal and organisational

factors, and sanctions (when they existed) were not applied consistently. This enforcement

problem can be related to a lack of legal clarity, organisational difficulties and, above all, a

lack of political willingness within government to apply sanctions. Overall, from 2001 to

2009, the accountability regime applying to public-private intelligence ‘partnerships’ was

imperfect and hampered by hasty privatisation.

In the course of the presidency of George W. Bush, the existence of problems

regarding public-private intelligence ‘partnerships’ became increasingly apparent to

accountability holders. A series of incidents triggered reactions from key intelligence

accountability holders and this chapter distinguishes between light triggers, or incidents

generating reactions that are essentially limited to some accountability holders, and heavy

triggers, or incidents generating sustained reactions from most accountability holders

including society. The existence of light triggers demonstrates a continuous awareness of

some problems among policy-makers and some executive agencies such as the CIA Office of

the Inspector General. However, in the absence of sustained media coverage, the

174

accountability holders’ activity reached a limited audience. Between 2002 and 2006 a

succession of high-profile incidents involving the private sector fostered public scrutiny of

public-private intelligence ‘partnerships’. Executive, legislative and judicial reactions to these

heavy triggers, and media exposure, were significant. These scandals crystallised

accountability around four issues: conflicts of interests, efficiency, human rights, and civil

liberties. Together they forced the US government to consider the imperative for change.

Accountability problems

Accountability standards

Government priorities and management deficiencies

Following the 9/11 attacks, policy-makers and senior intelligence officials prioritised

effective national security to the detriment of liberal democratic values and efficiency. This

political decision was clearly expressed by President Bush when, to justify ‘the largest

increase in defense spending in two decades’, he considered that ‘the price of freedom and

security is never too high’.1 This resolute defence of ‘freedom and security’ impacted on the

way public-private intelligence ‘partnerships’ were carried out. Senior intelligence managers

have admitted that, in the context of crisis that followed 9/11, contract management was not

considered as a priority by the intelligence community’s leadership. Michael Hayden, the

former director of the NSA and the CIA, recognised that the intelligence community was

‘effective’ but not ‘efficient’ in the years following the 9/11 attacks and explained ‘there’s no

way we could have done it that quickly, that rapidly, that expansively, and had done it well,

had done it efficiently’.2 In other words, he has suggested that during his tenure, the

administration prioritised results, or effective national security, over cost-effectiveness.

Under the authority of George W. Bush, executive control of intelligence contractors

was wanting. At the strategic level, the intelligence community did not plan its reliance on

the private sector and senior intelligence officials did not keep track of the number of

contractors.3 With hindsight, officials have emphasised that the government procurement

1 George W. Bush, The President’s State of the Union Address, 29 January 2002, <http://georgewbush-

whitehouse.archives.gov/news/releases/2002/01/20020129-11.html> (accessed 24 September 2012). 2 Michael Hayden, interview with Frontline, 19 August 2010, <http://www.pbs.org/wgbh/pages/frontline/are-

we-safer/interviews/michael-hayden.html> (accessed 10 august 2012). 3 Michael Hayden, in Video: C-SPAN, ‘Privatization of U.S. intelligence’, 20 August 2009, <http://www.c-

spanvideo.org/program/288482-1> (accessed 10 September 2011); Dana Priest and William M. Arkin, Top

175

model makes counting contractors more complicated than counting government employees.4

For example, individual contractors may work for a series of companies at the same time, and

do not always work for a full year.5 Yet, the difficulty of the task does not explain the

absence of overall effort to collect data on the aggregate number of intelligence community

contractors before 2006.6 Up to then, the 16 agencies forming the intelligence community had

‘no single standard to count or distinguish contractors’.7 In this context, congressional

committees - which often rely on the executive branch to access information about

intelligence activities - could not be expected to seriously oversee the evolution of public-

private intelligence ‘partnerships’. The Senate Select Committee on Intelligence (SSCI)

complained in 2006 that it had ‘seen no metrics that would link the additional proposed

personnel to improvements in the Intelligence Community’s ability to detect, predict, analyse,

and counter current and future threats to the United States’.8 Put simply, the intelligence

community expanded its reliance on the private sector without knowing whether it would

improve its capabilities at the margins. Similarly, the House Permanent Select Committee on

Intelligence (HPSCI) concluded in 2007 that US officials ‘do not have an adequate

understanding of the size and composition of the contractor work force, a consistent and well-

articulated method for assessing contractor performance, or strategies for managing a

combined staff-contractor workforce’.9 Under such conditions, it is legitimate to speculate

whether or not functions vital to national security were being contracted beyond the

government’s capability for control.

In order to spot abuses and apply adequate sanctions, the government needed a

contract management workforce able to maintain ‘adequate civilian oversight over

intelligence operations’.10

After 9/11, this specialised workforce faced multiple challenges

Secret America. The Rise of the New American Security State (New York: Little, Brown and Company 2011)

pp. 187-8. 4 Congressional Budget Office, Contractors’ Support of U.S. Operations in Iraq, August 2008, p10.

5 See for example: Clapper, cited in US Senate, Select Committee on Intelligence, Nomination of Lieutenant

General James Clapper, p.16; Office of the Director of National Intelligence, Key Facts About Contractors, p.2,

<https://www.fas.org/irp/news/2010/07/ic-contract.pdf> (accessed 25 October 2012). 6 Sanders, Results of the Fiscal Year 2007 U.S. Intelligence Community Inventory of Core Contractor

Personnel, p.13. 7 Paula J. Roberts, Statement before the US Senate Committee on Homeland Security and Governmental

Affairs, Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of

Columbia, 112th

Congress, 1st sess., 20 September 2011, p.31.

8 US Senate, Select Committee on Intelligence, Report accompanying the Intelligence Authorization Act for

Fiscal Year 2007, Report 109-259, 109th

Congress, 2nd

sess., 25 May 2006, p.40. 9 US House of Representatives, Permanent Select Committee on Intelligence, Report on Intelligence

Authorization Act for Fiscal Year 2008, Report 110-131, 7 May 2007, p.42. 10

Patrick T. Henry, Department of the Army, Office of the Assistant Secretary, Manpower and Reserve Affairs,

Intelligence Exemption, 26 December 2000, p.2. For a similar expectation, see: Office of Federal Procurement

Policy, Policy Letter 92-1 to the Heads of Executive Agencies and Departments, 23 September 1992.

176

because it had been significantly downsized in the 1990s.11

In addition, rapid technological

development, especially in the realm of information technology, further complicated

intelligence acquisitions programmes and contract arrangements, which required further

workforce adaptation.12

However, while outsourcing boomed from 2001 onwards, the

contract management workforce did not significantly expand.13

This was particularly

problematic since, as the former Director of the Defense Contract Audit Agency remarks

‘when contractors grow that fast, the procedures, processes, and systems have trouble

keeping up’.14

In this light, it should not come as a surprise that the workforce embraced

‘whatever means necessary to meet its customers’ needs’.15

Numerous reviews and experts identified significant shortfalls plaguing contractor

management in the realm of defence and national security during the GWOT.16

Criticisms

concerned many components of the IC and focussed on the paucity of a contract management

workforce, its lack of experience and the inadequacy of the procedures followed by this

workforce. The Gansler Commission pointed out in 2007 that contracting officer

representatives (COR), who play a central role in controlling contractors during overseas

operations, were poorly trained and valued within the armed forces.17

An external report from

the Intelligence and National Security Alliance (INSA) in 2008, an interest group supporting

the intelligence industry, emphasised a lack of ‘acquisition and procurement officials

available to review and process contracts, many of whom are over-extended and under-

experienced’.18

A degradation of resources affected the DOD Inspector General (IG) who

11

Former Senior Intelligence Official A, interview with author, 8 August 2011, Washington DC. 12

For a similar argument, see: Office of the Director of National Intelligence, Office of the Inspector General,

Critical Intelligence Community Management Challenges, 12 November 2008, p.11; Department of Defense,

Office of the Undersecretary of Defense for Acquisition, Technology and Logistics, Report of the Defense

Science Board Task Force on Developmental Test and Evaluation, May 2008, p.7. 13

Sharp, ‘The US Defense Acquisition Workforce Since the Cold War’, p.82; Government Accountability

Office, Defense Management: Actions Needed to Overcome Long-standing Challenges with Weapons Systems

Acquisition and Service Contract Management, Testimony Before the Subcommittee on Defense, Committee on

Appropriations, US House of Representatives, GAO-09-362T, February 2009, pp. 12-3. From 2001 to 2008 the

Department of Defense contracting career field grew by only one per cent. 14

Patrick Fitzgerald, Testimony to the Commission on Wartime Contracting in Iraq and Afghanistan, Hearing,

Subcontracting: Who’s Minding the Store?, 26 July 2010, p.46,

<http://www.wartimecontracting.gov/docs/hearing2010-07-26_transcript.pdf> (5 October 2012). See also: Gale,

‘Intelligence Outsourcing in the U.S. Department of Defense: Theory, Practice, And Implications’, p.109. 15

Steven L. Schooner, ‘Contractor Atrocities at Abu Ghraib: Compromised Accountability in a Streamlined,

Outsourced Government’, Stanford Law & Policy Review 16/2 (2005) p.571. 16

US Senate, Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Oversight

of Government Management, the Federal Workforce, and the District of Columbia, Background: Intelligence

Community Contractors: Are We Striking the Right Balance?, 112th

Congress, 1st sess., 20 September 2011,

p.77. 17

Commission on Army Acquisition and Program Management in Expeditionary Operations (Gansler

Commission), Urgent Reform Required : Army Expeditionary Contracting, 31 October 2007, p.3. 18

Intelligence and National Security Alliance, ‘Critical Issues for Intelligence Acquisition Reform’, 2008, p.2.

177

considered that, as a result of cuts, it was ‘not able to provide sufficient audit coverage of

DoD acquisition programs given the dollars expended by the Department.’19

Former senior

officials have argued that the government had lost part of its ability to understand how to

acquire and manage the capabilities it needed during this time.20

A report by the ODNI noted

that ‘some IC elements lack strong program and procurement offices; clearly defined

program requirements, performance measures, and acceptance terms; and program

management systems to support the acquisition decision-making process.21

In the mid-2000s,

the Baltimore Sun reported that the NSA lacked ‘mechanism to systematically assess whether

it is spending its money effectively and getting what it has paid for’.22

A recent report from

the ODNI IG recognised that, as a result of the agency’s lack of strategic and human capital

planning, ‘there is not a road map upon which to plan for the effective application and

management of core contractor workforce’.23

In addition, the report found that within the

agency itself, the ODNI ‘has not implemented internal controls necessary to ensure the

acquisition process is meeting its needs’.24

On the whole, it is reasonable to argue that the IC

struggled to manage public-private ‘partnerships’.

Inadequate standards

Between 2001 and 2009, the existence and application of political and legal standards25

to

public-private intelligence ‘partnerships’ were inadequate. Yet, within the intelligence

community, government employees were in charge of controlling the contractor workforce.

Since 2002, ‘each component of the IC has a designated Chief Human Capital Officer or

similar official who is responsible for developing workforce strategy, attracting and retaining

19

Department of Defense, Office of the Inspector General, Department of Defense Inspector General Growth

Plan for Increasing Audit and Investigative Capabilities Fiscal Years 2008 – 2015, 31 March 2008, p.11. This

situation is well represented in a chart provided in the same report. A copy of this chart is provided in appendix

10. 20

Edmund H. Nowinski and Robert J. Kohler, ‘The Lost Art of Program Management in the Intelligence

Community. A View of How We Manage’, Studies in Intelligence 50/2 (2006) p.37; Joan Dempsey, in Center

for Information Policy Research, Incidental Paper, Seminar on Intelligence, command and Control, the

Limitations of Recent Intelligence Reforms, Harvard University, September 2006, p.15. 21

Office of the Director of National Intelligence, Critical Intelligence Community Management Challenges,

p.11. 22

Siobhan Gorman, ‘Computer Ills Hinder NSA; 2 technology programs, weapons for the war on terrorism,

have proved duds’, Baltimore Sun, 26 February 2006, <http://articles.baltimoresun.com/2006-02-

26/news/0602260086_1_cryptologic-agency-technology-programs > (accessed 5 July 2010). 23

Edward L. Haugland, Assistant Inspector General for Inspections, Office of Inspector General, Office of the

Director of National Intelligence, Testimony before the US Senate Committee on Homeland Security and

Governmental Affairs, Subcommittee on Oversight of Government Management, the Federal Workforce, and

the District of Columbia, 112th

Congress, 1st sess., 20 September 2011, p.30.

24 Ibid.

25 Standards reflect accountability holder’s political preferences regarding the trade-off between national

security and liberal democratic values. They become legal standards when this preference is expressed in law.

178

talent, and assessing workforce needs’.26

The Federal Acquisition Regulation (FAR)

constitutes a robust framework for contracting out government activities and over the years, it

has been reinforced by a series of statutes. For example, the Federal Activities Inventory

Reform Act requires agencies to hold inventories of ‘commercial activities’.27

At the CIA, a

contract law division within the Office of General Counsel has ensured that procurement

respects such legal standards.28

Former intelligence officials have considered that existing

standards were sufficient to ensure the ascendency of public authority. Mark Lowenthal, who

was Assistant Director of Central Intelligence for Analysis and Production from 2002 to

2005, remarked that it was very clear that the contractors working with his staff ‘could not

monitor other contracts. They could not be involved in solicitations. They could not be

involved in acquisitions’.29

Similarly, General Miller, who was commander of the Joint Task

Force at Guantanamo, pointed out in a hearing in 2004 that ‘the civilian contractors who

work in our intelligence organizations are accountable to the chain of command of the

intelligence organization’. He added that ‘in our organization, currently, no civilian

contractor is in a supervisory position. It’s the military who has the priority - who sets the

priorities and ensures that we meet our standards’.30

However, in some areas, the absence of standards was more apparent. An Army

investigation into detainee mistreatment noted in 2004 that ‘no doctrine exists to guide

interrogators and their intelligence leaders in the contract management or command and

control of contractors in a wartime environment’.31

During his nomination hearing to be

Director of National Intelligence, General James Clapper recognised the persisting need to set

standards to determine ‘limits on the amount of revenue that would accrue to contractors’,

26

US Senate, Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Oversight

of Government Management, the Federal Workforce, and the District of Columbia, Background: Intelligence

Community Contractors: Are We Striking the Right Balance?, 112th

Congress, 1st sess., 20 September 2011,

p.80. 27

US Congress, Pub. Law 105-270, Federal Activities Inventory Reform, 105th

Congress, 2nd

sess., 19 October

1998. See also: Glenn J. Voelz, ‘Contractors and Intelligence: The Private Sector in the Intelligence

Community’, International Journal of Intelligence and CounterIntelligence 22/4 (2009) p.595. 28

A. John Radsan, ‘Sed Quis Custodiet Ipsos Custodes: The CIA’s Office of General Counsel?’, Journal of

National Security Law & Policy 2/2 (2008) p.230 (note 91). 29

Mark Lowenthal in US Senate, Senate Committee on Homeland Security and Governmental Affairs,

Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia,

Background: Intelligence Community Contractors: Are We Striking the Right Balance?, 112th

Congress, 1st

sess., 20 September 2011, p.17. 30

Maj. Gen. Geoffrey Miller, Deputy Commander for Detainee Operations, Multinational Force-Iraq, in US

Senate, Armed Services Committee, Hearing, 108th

Congress, 2nd

sess., 19 May 2004,

<http://scvhistory.com/scvhistory/signal/iraq/sasc051904.htm> (accessed 22 February 2012). 31

Department of Defense, Office of the Inspector General, AR 15-6 Investigation of the Abu Ghraib Detention

Facility and 205th

Military Intelligence Brigade (U) (also called the Jones-Fay report), 25 August 2004, p.19.

See also Thomas Bruneau, ‘Contracting Out Security’, Journal of Strategic Studies (iFirst 2012) p.16.

179

and ‘limits on the number of full-time equivalent contractors who are embedded in the

intelligence community’.32

In other cases, existing standards have been insufficient. For

instance, a report by the ODNI IG noted that ‘many procurements receive limited oversight

because they fall below the threshold for mandatory oversight’. 33

This threshold is usually

related to the definition of ‘major systems’, for which ‘total expenditures for research,

development, test and evaluation are estimated to be more than $640 million if developed by

DOD agencies or $160 million if developed by non-DOD agencies (based on FY 2006

dollars)’.34

Following the intensification of public-private intelligence ‘partnerships’ and the

shift towards the outsourcing of services, more acquisition procedures may have become

obsolete.35

A focus on particular intelligence activities such as interrogation reveals that ‘policies

and laws governing the involvement of contract personnel vary literally by agency’.36

Accountability problems in the field of interrogation were clear at the Department of

Defense, where existing standards have not been respected thoroughly. In 2004, the Army’s

investigation of the Abu Ghraib Joint Interrogation and Detention Center emphasised

contractor personnel’s lack of ‘qualifications, experience, and training’.37

Even military

supervisors were confused over their legal responsibilities for contractor personnel.38

Confusion was reinforced by the absence of contracting officer’s technical representative

(COTR) on-site.39

In these conditions, Major General George Fay (US Army) noted, ‘it is

very difficult, if not impossible, to effectively administer a contract’.40

The independent panel

to review the Department of Defense’s detention operations emphasised that ‘oversight of

contractor personnel and activities was not sufficient [during Operation Iraqi Freedom] to

32

James Clapper, US Senate, Select Committee on Intelligence, Nomination of Lieutenant General James

Clapper, Jr., USAF, Ret., To Be Director of National Intelligence, 111th

Congress, 2nd

sess., 20 July 2010, p.12. 33

Office of the Director of National Intelligence, Critical Intelligence Community Management Challenges,

p.11. 34

Ibid. 35

For a similar argument, see: Marion E. “Spike” Bowman, ‘Legal Issues of Outsourcing Military Functions in

wartime’, in John Moore and Robert F. Turner (eds), Legal issues in the Struggle Against Terror (Durham, NC:

Carolina Academic Press 2010) p.427. See also: Joshua Foust, Statement before the U.S. Senate Committee on

Homeland Security and Governmental Affairs, Subcommittee on Oversight of Government Management, the

Federal Workforce, and the District of Columbia, 112th

Congress, 1st sess., 20 September 2011, pp.11, 69; Glenn

J. Voelz, ‘Commercial Augmentation for Intelligence Operations: Lessons Learned from the Global War on

Terrorism’, Defense Acquisition review Journal 14/3 (2007) pp. 428-9. 36

Ronald Sanders, Office of the Director of National Intelligence, Results of the Fiscal Year 2007 U.S.

Intelligence Community Inventory of Core Contractor Personnel, 27 August 2008, p.7. 37

Department of Defense, AR 15-6 Investigation of the Abu Ghraib Detention Facility, p.49. See also:

Department of the Army, Office of the Inspector General, Detainee Operations Inspection, 21 July 2004, pp. 87-

9. 38

Department of Defense, AR 15-6 Investigation of the Abu Ghraib Detention Facility, p.50. 39

Department of Defense, AR 15-6 Investigation of the Abu Ghraib Detention Facility, p.50. 40

Ibid.

180

ensure intelligence operations fell within the law and the authorized chain of command’.41

The Government Accountability Office (GAO) found several breaking points in the process

of procuring interrogations for the Department of Defense, such as ‘not following

competition requirements and not properly justifying the decision to use interagency

contracting’.42

For example, to outsource interrogation, the Army used a contract awarded by

the General Services Administration and assigned for administration to the Department of

Interior.43

This arrangement allowed the Army to bypass a directive which banned the private

provision of interrogators.44

Existing procedures were misused when contracts for activities

such as human intelligence support, interrogation and screening followed a procedure

designed for contracting engineering and information technology services.45

For the GAO,

the way in which ‘DoD used Interior to acquire interrogators and screeners [at Abu Ghraib]

on an information technology contract’ raised questions ‘about the integrity of the federal

procurement process’.46

According to a government report, this situation resulted from the

‘lack of an effective system of policies, procedures, and process controls’, and the ‘lack of

monitoring and oversight, and the ‘eagerness’ of procurement personnel who ‘have found

shortcuts to federal procurement procedures’.47

However, external commentators have been

more suspicious. Solomon Hughes suggests the US government used ‘some creative

accounting to keep the contract relatively obscure’.48

Danielle Brian, the executive director of

the Project on Government Oversight questions ‘how can a person at Interior know what

41

James R. Schlesinger et. al., Independent panel to review DoD Detention Operations, Final Report, August

2004, p.69 [explanation added]. 42

Government Accountability Office, Interagency Contracting. Problems with DOD’s and Interior’s Orders to

Support Military Operations, GAO-05-201, April 2005, p.7. 43

Dan Guttman, ‘Government By Contract: The White House Needs Capacity to Review and Revise the Legacy

of 20th

Century Reform’, National Academy of Public Administration, Issue Paper on Presidential Management

Capacity to Respond to 21st Century Challenges, August 2008, p.12. For other examples of ‘out-of-scope

contracts’, see: Department of Defense, Office of the Inspector General, Contracts Awarded for the Coalition

Provisional Authority by Defense Contracting Command-Washington, Report No. D-2004-057, March 2004,

p.13; David M. Walker, Testimony Before the Committee on Government Reform, US House of

Representatives, GAO-04-869T, 15 June 2004, p.5. For an example of contract, see: Department of the Interior-

CACI, 2003-2004, Work orders, <http://projects.publicintegrity.org/docs/wow/CACI_ordersAll.pdf> (accessed

6 January 2009). 44

Henry, Intelligence Exemption, p.1. 45

Government Accountability Office, Interagency Contracting, p.8; See also: Department of the Interior, Office

of the Inspector General, Review of 12 Procurements placed under General Services Administration Federal

Supply Schedules 70 and 871 by the National business Center, 16 July 2004. For a more detailed review of this

type of irregularities, see: Voelz, ‘Commercial Augmentation for Intelligence Operations’, pp. 419-33. 46

Government Accountability Office, Interagency Contracting, p.2. 47

Department of the Interior, Office of Inspector General, Memorandum from Earl E. Devaney to Assistant

Secretary for Policy, Management and Budget, in Review of 12 Procurements Place Under General Services

Administration Federal Supply Schedules 70 and 871 by the National Business Center (Assignment No. W-EV-

OSS-0075-2004), 16 July 2004, p.3. 48

Solomon Hughes, War on Terror Inc. Corporate Profiteering from the Politics of Fear (London: Verso 2007)

p.193.

181

qualities you’re looking for in a contractor doing something as sensitive as interrogating

prisoners of war?’49

In this particular case, although legal standards and procedures existed,

they were not properly used.

Public-private confusion and accountability standards

The close ties between some US government officials and the private intelligence industry

after 2001 occasionally threatened the ascendency between accountability holders’ public

authority and private accountability holdees’ interests. In theory, the Federal Acquisition

Regulation limited the possibility that contractors could skew the public interest in their

favour because it requires ‘enhanced management controls’ to ensure the contractors carrying

out functions that are close to be inherently governmental aren’t ‘influencing the government

in making policy decisions’.50

This is based on the notion that the public and private actors do

not always uphold the same standards to the same degree and in the words of the former

Comptroller General of the United States:

the closer contractor services come to supporting inherently governmental

functions, the greater the risk of their influencing the government’s control over

and accountability for decisions that may be based, in part, on contractor work.

This situation may result in decisions that are not in the best interest of the

government and American taxpayer, while also increasing overall vulnerability to

waste, fraud, or abuse.51

Morten Hansen has questioned this logic and argued that public and private employees

‘appear to be intrinsically motivated and loyal primarily to the mission at hand, national

security’.52

This argument revolves around the idea that most contractors have had a career

in the government and were therefore recruited on the same basis than their government

counterparts. As a consequence security clearance requirements make it difficult ‘to conceal

interests and loyalties that ran counter to the national security objective’.53

A synthesis of

both approaches is possible by considering that contractors, as well as government

49

Robert O’ Harrow Jr. and Ellen McCarthy, ‘Private Sector Has Firm Role At the Pentagon’, Washington Post,

9 June 2004, E01. 50

US Senate, Committee on Homeland Security and Governmental Affairs, Subcommittee on Oversight of

Government Management, the Federal Workforce, and the District of Columbia, 112th

Congress, 1st sess., 20

September 2011, p.34. 51

Government Accountability Office, Defense Acquisitions: DOD's Increased Reliance on Service Contractors

Exacerbates Long-standing Challenges: Statement of David M. Walker Comptroller General of the United

States, Testimony before the Subcommittee on Defense, Committee on Appropriations, US House of

Representatives, 23 January 2008, GAO-08-621T, p.3. 52

Morten Hansen, ‘Intelligence Contracting: On the Motivations, Interests, and Capabilities of Core Personnel

Contractors in the US Intelligence Community’, Intelligence and National Security (iFirst 2012) p.1. 53

Ibid, p.16.

182

employees, are motivated both by a monetary interest and the possibility to contribute to

national security.

From a legal point of view, the standards applying to government officials and private

contractors have been different and government employees have been asked to respect stricter

ethical standards than their private ‘partners’. Dan Guttman, a Washington DC attorney and

specialist on privatisation has pointed out that ‘the work of officials is subject to a body of

conflict-of-interest provisions, pay caps, and labor rules that do not apply to contractors’.54

Similarly, a former legal counsel for the US government noted that government employees,

unlike private contractors, go through financial conflict review.55

Jon Michaels, a legal

scholar, also emphasised ‘regulatory asymmetries’ and noted that ‘private organizations can

at times obtain and share information more easily and under fewer legal restrictions than the

government when it collects similar information on its own’.56

Such asymmetries are

particularly problematic when contractors carry out important tasks, for example in the

domain of contract management. In addition, contractors have sometimes been placed in

positions where their profit interest could conflict with their activity in support of the

government. They have been put ‘in charge of “reading on” competitor contractors (where

they have an incentive to exclude or delay employees of competing firms)’, or ‘assisting the

government in writing new contracts, new Request for Proposals, and new Statements of

Work’.57

This was the case at Abu Ghraib where a CACI employee helped the contracting

officer’s representative (COR) ‘in writing the statement of work prior the award of the

contract’.58

A report from the Department of Defense IG also found that ‘government

contractors are writing statements of the work for which they are the beneficiaries. And,

contractors routinely direct/authorize each other’s work’.59

Although it is normal to involve

contractors in the procurement process so that they can refine their offer, the increasingly

important role they have played in this context is a concern.

54

Guttman, ‘Government By Contract’, p.16; Dan Guttman, ‘Public Purpose and Private Service: The

Twentieth Century Culture of Contracting Out and the Evolving Law of Diffused sovereignty’, Administrative

Law Review 52/3 (2000) pp. 894-6. 55

Former Senior Intelligence Official B, interview with author, 26 July 2011, Washington DC. 56

Jon D. Michaels, ‘All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror’,

California Law Review 96/4 (2008) p.902; Daniel J. Solove and Chris Jay Hoofnagle, ‘A Model Regime of

Privacy Protection’, University of Illinois Law Review 2006/2 (2006) pp. 357-9. 57

Foust, Statement before the U.S. Senate Committee on Homeland Security and Governmental Affairs, p.4.

For further evidence, see: Government Accountability Office, Contracting Problems with DOD’s and Interior’s

Orders to Support Military Operations, p.7. 58

Department of Defense, AR 15-6 Investigation of the Abu Ghraib Detention Facility, p.49. 59

Department of Defense, Office of the Inspector General, Deputy Inspector General for Intelligence,

Allegations of Mismanagement and Waste within the Counterintelligence Field Activity, Report No.06-INTEL-

15, 29 September 2006, p.14.

183

The influence of commercial companies on public accountability holders is also an

issue at the political level. The money that some companies devote to lobbying members of

Congress lies at the heart of the problem. Science Applications International Corporation

(SAIC) spent $1,460,000 in 2007 to lobby in the area of intelligence, and Verizon

Communications Inc. spent $5,300,000.60

The same year, SAIC voluntary political action

committee provided contributions to four senators in the SSCI and eight representatives in the

HPSCI.61

Representatives are particularly important targets for private companies since they

hold the governmental purse and can decide of special funding requests or earmarks.

According to a study of the totality of the earmarks that went to companies in Fiscal Year

(FY) 2005, ‘on average, companies generated $28 in earmark revenue for every dollar they

spent lobbying’.62

Although lobbying is a legal activity, concerns that this system creates

political dependencies on commercial companies’ money and skews national security politics

are genuine.

Similar issues enveloped congressional committees especially with regard to the

revolving door. The career path of staffers in the Senate Select Committee on Intelligence

often involves work experience in a company involved with the intelligence community. For

instance, Amy Hopkins was a SAIC intelligence contractor working for the Pacific Command

from 2003 to 2007, before she joined the SSCI as professional staff member in 2011.63

Bob

Filippone worked at Raytheon, a major defence contractor, just after leaving his post as

deputy staff director of the SSCI.64

Melvin Dubee worked at Lockheed Martin, after serving

as a deputy staff director of the SSCI between 2000 and 2009.65

Many more SSCI staffers

found a job in the lobbying industry in Washington DC after their time serving the

60

US Senate, Lobbying Disclosure Act Database, Filing Year: 2007, Issue Code: INTELLIGENCE,

<http://soprweb.senate.gov/index.cfm?event=submitSearchRequest> (accessed 14 October 2011). For a well-

researched profile of SAIC, see: Donald L. Barlett and James B. Steele, ‘Washington’s $8 Billion Shadow’,

Vanity Fair, March 2007, <http://www.vanityfair.com/politics/features/2007/03/spyagency200703> (accessed

15 February 2011). 61

US Senate, Lobbying Contribution report for SAIC Voluntary Political Action Committee, LD-203 YEAR-

END REPORT, <http://soprweb.senate.gov/index.cfm?event=getFilingDetails&filingID=ca6c4c36-5735-468b-

a235-a33738adb67e> (accessed 14 October 2011). 62

According to the study, the vast majority of earmark recipients in 2005 were military contractors. See: Eamon

Javers, ‘Inside The Hidden World Of Earmarks’, BusinessWeek, 17 September 2007,

<http://www.businessweek.com/magazine/content/07_38/b4050059.htm> (accessed 12 October 2011). 63

Linkedin, ‘Amy Hopkins’, <http://www.linkedin.com/pub/amy-hopkins/40/b/497> (accessed11 September

2012). 64

Center for Responsive Politics, ‘Filippone, Bob’,

<http://www.opensecrets.org/revolving/rev_summary.php?id=70959> (accessed 11 September 2012). 65

Center for Responsive Politics, ‘Dubee, Melvin’,

<http://www.opensecrets.org/revolving/rev_summary.php?id=75505> (accessed 11 September 2012); Linkedin,

‘Melvin Dubee’, <http://www.linkedin.com/pub/melvin-dubee/b/2a8/b00> (accessed11 September 2012)

184

committee.66

These career paths do not constitute conflicts of interest per se and public-

private mobility and interactions are desirable to the extent that public and private partners

need to understand how to work together.67

Nevertheless, the existence of a revolving door at

this level poses important questions about these staffers’ ability to impartially oversee the

same private companies when they interact with the intelligence community. Questions of

impartiality can also be raised when the SSCI relies on the expertise of individuals working

for the private security industry to carry out its oversight duty. This has been the case of some

individuals in the Technical Advisory Group (TAG) which informs and advises committee’s

members on scientific and technological issues.68

Such a rapprochement between public and

private interests and organisations creates an environment that fosters conflicts of interest69

and can lead to unethical practices and abuses of power.70

However the mere existence of

public-private interactions does not prove the private sector is systematically exerting undue

influence on congressional oversight and, ultimately, public accountability holders are

responsible for the decisions they make.

Accountability holders’ access to private sector information

Privatising intelligence complicates public accountability holders’ access to the private sector

information that provides a factual basis for their assessments. Some experts have argued

that privatisation generates an institutional shift that simply deteriorates accountability

66

For more details on former SSCI staffers crossing the revolving door, see: Center for Responsive Politics,

‘Revolving Door: Search Results; Congressional Committee search: Select Intelligence Committee’,

<http://www.opensecrets.org/revolving/search_result.php?cmte=Select+Intelligence&id=SITL> (accessed 10

September 2012). 67

Dan Guttman, ‘Government By Contract: The White House Needs Capacity to Review and Revise the Legacy

of 20th

Century Reform’, National Academy of Public Administration, Issue Paper on Presidential Management

Capacity to Respond to 21st Century Challenges, August 2008, p.24; Irving and Schwab, ‘We’re in It for the

Money’, p. 202; Priest and Arkin, Top Secret America, p.188. 68

Congressional staffer working on national security affairs B, interview with author, 17 June 2011,

Washington DC. On the role of the TAG, see: US Senate, Select Committee on Intelligence, Special Report,

Committee Activities - January 6, 1999 to December 15, 2000, Report 107-51, 107th

Congress, 1st sess., 3

August 2001, p.38; US Senate, Select Committee on Intelligence, Additional Prehearing Questions for James R.

Clapper, Jr. Upon his Nomination to be Director of National Intelligence, 111th

Congress, 2nd

sess., 20 July

2010, p.31. 69

Conflicts of interests can be defined as situations ‘where employment or financial relationships impair an

individual employee’s or a corporation’s ability to act impartially, objectively, and in the best interest of the

government’. See: US Senate, Senate Committee on Homeland Security and Governmental Affairs,

Subcommittee on Oversight of Government Management, the Federal Workforce, and the District of Columbia,

Background: Intelligence Community Contractors: Are We Striking the Right Balance?, 112th

Congress, 1st

sess., 20 September 2011, p.79. 70

For example: Tim Shorrock, ‘The corporate takeover of U.S. intelligence’, Salon.com, 1 June 2007

<http://www.salon.com/news/feature/2007/06/01/intel_contractors/index.html> (accessed 20 September 2011).

185

holder’s access to the information necessary to carry out their mission.71

However, the

situation is far more complex because accountability holders have unequal access to private

sector information. In the case of citizens, Tim Shorrock emphasised a disparity of access to

information between companies who can access budgetary information on individual

agencies and the taxpayers who are left out of the loop.72

Jon Michaels has rightly argued that

the US law protects corporate secrecy more than public secrecy.73

In the US, the Freedom of

Information Act (FOIA) does not apply to companies or individual contractors, but only to

executive agencies’ records.74

In the realm of national security intelligence, private

companies’ billings are considered confidential by both the companies and the government,

so they are not disclosed to the taxpayers.75

In the intelligence committees’ budget reports,

the names of the contractors granted earmarks are not usually disclosed.76

The ODNI in 2005

gave publicly traded contractors the right to exclude certain material events from their public

findings with the Securities Exchange Commission, including the signing of contract with the

CIA and the NSA.77

Jacob Gale has remarked that, for outsiders, ‘information concerning

how service contracts are performed on a daily basis is in exceedingly short supply’.78

On the

whole, however, these problems of transparency can be related to the secret nature of

intelligence activities rather than their supply by private organisations. Citizens are not

usually allowed to access budgetary information about intelligence activities or information

71

Jeffrey Henig, and Chris Hamnett, Shrinking the State: the Political Underpinnings of Privatization

(Cambridge: Cambridge University Press 1998) p.52. 72

Tim Shorrock, Spies for Hire. The Secret World of Intelligence Outsourcing (New York: Simon and Schuster

2008) p.21. 73

Michaels, ‘All the President’s Spies’, pp. 929-30. 74

Laura Dickinson, ‘Government for Hire: Privatizing Foreign Affairs and the Problem of Accountability under

International Law’, William and Mary Law Review 47/1 (2005) p.192; Guttman, ‘Government By Contract’,

p.16. 75

Robert Young Pelton, Licensed to Kill. Hired Guns in the War on Terror (New York: Three Rivers Press

2007) p.121. See also: Pratap Chatterjee, Outsourcing Intelligence in Iraq. A CorpWatch Report on L-3/Titan,

December 2008, p.5. Chatterjee points out that the US government has instituted rules on business

confidentiality in order to protect companies’ competitive edge. Dana Priest, ‘America’s security Overload’, The

Daily Beast, 21 September 2011, <http://www.thedailybeast.com/articles/2011/09/21/government-private-

contractors-hinder-fight-on-terrorism.html> (accessed 25 September 2011). 76

Shorrock, ‘The corporate takeover of U.S. intelligence’. When, in a break with tradition, Congress revealed

intelligence earmarks as part of the 2008 defense appropriations bill, the names of the contracting companies

were not mentioned. Roxana Tiron, ‘Congress Discloses Intel Earmarks for First Time’, Hill, 24 November

2007, <http://thehill.com/homenews/news/13715-congress-discloses-intel-earmarks-for-first-time> (accessed 20

February 2011). For the earmarks, see: US House of Representatives, Conference Report on Making

Appropriations for the Department of Defense for the Fiscal Year Ending September 30, 2008, and for Other

Purposes, Report 110–434, 110th

Congress, 1st sess., 6 November 2007, pp. 378-9.

77 Shorrock, Spies for Hire, p.22.

78 Jacob B. Gale, ‘Intelligence Outsourcing in the U.S. Department of Defense: Theory, Practice, And

Implications’, Thesis submitted to the Faculty of the Graduate School of Arts and Sciences of Georgetown

University in partial fulfilment of the requirements for the degree of Master of Arts in Security Studies, 15 April

2011, Washington DC, p.32.

186

relating to intelligence sources and methods, regardless of the public or private status of the

entities involved in the intelligence process.

Accountability holders within the executive and legislative branches have had

relatively good access to information on private intelligence ‘partners’. Since the executive

branch has been directly involved with its private ‘partners’ and originated most of their

relations, in theory, it has a good access to the information necessary to control their activities

when they worked for the government.79

According to the ODNI, in 2007, 73 percent of core

contractor personnel involved in the National Intelligence Program were working on

government agencies’ premises.80

This layout theoretically allowed for direct control by the

government managers working on-site. In other cases, such as overseas contract, it has been

more complicated because although contracting officers have legal responsibility for

contracts, they ‘may have limited knowledge of the subject matter of a particular contract and

may work at substantial remove from the contract’s locale’.81

That is why officers usually

rely on a representative to monitor contractors’ performance and ensure compliance with the

government instructions on the ground. In the case of Reconstruction Operations Centers in

Iraq a system of regulation and control was in place and David Strachan-Morris noted that

‘the personnel working within the intelligence interface were well aware that they were

subject to US legislation and regulations concerning access and use of classified

information’.82

At the more senior level, Michael Hayden, the former Director of the CIA,

recognised that despite his responsibility ‘for everything done in the agency's name’, his

‘ability to control’ got ‘weaker with each layer or class of actor’ ranging from agency

employees, government contractors, to liaison services and sources acting on behalf of the

US government.83

At a more specialised level, some IGs have struggled to access information

about contractors for legal reasons. A report accompanying the Intelligence Authorization

Act for Fiscal Year (FY) 2007 noted that administrative IGs at the NRO, DIA, NSA, and

NGA:

lack the explicit statutory authorization to access information relevant to their

audits or investigations, or to compel the production of such information via

subpoena. This lack of authority has impeded access to information – in

79

Former Intelligence Official A, interview with author, 14 June 2011, Arlington, VA; Former senior DOD

official, interview with author, 27 July 2011, College Park, MD. 80

Sanders, Results of the Fiscal Year 2007 U.S. Intelligence Community, p.4. 81

Guttman, ‘Government By Contract’, pp. 12-3. 82

David Strachan-Morris, ‘The Future of Civil-Military Intelligence Cooperation’, Intelligence and National

Security 24/2 (2009) p.268. 83

Hayden, interview with Frontline.

187

particular, information from contractors – that is necessary for these Inspector

General to perform their important function.84

Congressional staffers with experience in the national security domain emphasised

that, in theory, the intelligence committees have full access to information when the

intelligence community relies on private companies.85

In practice, this access can be more

complicated than when activities are carried out by government employees alone. Guttman

notes that contractors are not required to publish personnel directories or organisation charts

which complicates congressional oversight.86

The reliance on the private sector adds

organisational layers and as a result it can take more time and effort to access key pieces of

information. A former congressional staffer has pointed out that the intelligence committees

took ‘two or three years to know how many contractors there were’ in the IC87

and in this

case the committees waited for information that had not been put together by the executive

branch. Marion Bowman, a former Deputy Director at the National Counterintelligence

Executive, has remarked that the privatisation of security increases the ‘distance between

both Executive and Congressional oversight of both public money and the means to

accomplish public goals’.88

In this context, information has more chances to get distorted or

lost. Another expert with experience in the government has noted that Congress cannot get a

full picture of a company since it can only oversee that for which the company was

contracted by the government. In this sense, contracts limit the amount of information that

congressional investigators are able to obtain.89

This becomes particularly problematic when

public accountability holders try to access information about sub-contractors.90

By definition,

sub-contractors are not directly accountable to the government but to the company

contracting with the government, which therefore becomes the ‘de facto government

contracting office’.91

In the most extreme cases, subcontracting runs ‘several tiers deep,

84

Roberts, Report accompanying the Intelligence Authorization Act for Fiscal Year 2007, p.29. 85

Congressional staffer working on national security affairs A, interview with author, 10 June 2011,

Washington DC; Congressional staffer working on national security affairs B, interview with author, 17 June

2011, Washington DC. 86

Dan Guttman, ‘Public Purpose and Private Service: The Twentieth Century Culture of Contracting Out and

the Evolving Law of Diffused sovereignty’, Administrative Law Review 52/3 (2000) p.894. 87

Congressional staffer working on national security affairs B, interview with author. 88

Bowman, ‘Legal Issues of Outsourcing Military Functions in wartime’, p.434. 89

Former Senior Intelligence Official B, interview with author, 26 July 2011, Washington DC. 90

Ibid. 91

Guttman, ‘Government By Contract’, p.12.

188

further decentralizing administration of the workforce’ and complicating overall assessment

and control of the contracting workforce.92

Availability and use of sanctions

Intelligence accountability holders have made a parsimonious use of sanctions against the

intelligence community’s private ‘partners’. At the most basic level, sanctions are based on

legal provisions and these can take the form of regulations or laws promulgated by the

executive branch under a delegation of authority from the legislature (statutes), which are

promulgated by Congress. At the regulatory level, two systems stand out. The US

government has set up a licensing and registering system to regulate the delivery of defence

supplies and services. This system, the International Traffic in Arms Regulation (ITAR)

which is part of the Arms Export Control Act, is managed by the State Department’s Office

of Defense Trade Control. The ITAR applies to a long list of military products and services,

most of which are in the US Munitions List (USML) which includes electronic systems

configured to collect, analyse and produce information or counteract electronic surveillance.93

Thomas McVey, an expert on the ITAR, noted that services related to items listed on the

USML are also subject to the ITAR.94

The NSA export control policy, for instance,

mentioned the ‘furnishing of assistance, including training, to foreign persons, in the U.S. or

abroad, in the design, development, engineering, manufacture, production, assembly, testing,

repair, maintenance, modification, operation or use of defense articles’.95

In accordance with

the ITAR, these products and services are submitted to an upstream control based on a market

approach. Once registered, a company needs a licence for every contract it undertakes.96

Contracts are then subjected to governmental scrutiny through various consultations in the

Department of State and the Department of Defense.97

Eventually, if a company violates the

ITAR requirements, the company, its directors and employees risk criminal or civil

92

Congressional Budget Office, Contractors’ Support of U.S. Operations in Iraq, August 2008, p.8; Bowman,

‘Legal Issues of Outsourcing Military functions in Wartime’, p.428. 93

Code of Federal Regulations, Title 22 - Foreign Relations, Subchapter M, Part 121, 1 April 2002. 94

Thomas B. McVey, ‘ITAR – what government contractors need to know’,

<http://www.lexology.com/library/detail.aspx?g=596a3c62-0736-4787-a07c-ece507517281> (accessed 12

September 2012). 95

National Security Agency/Central Security Service, ‘Export Control Policy’,

<http://www.nsa.gov/business/programs/export_control_policy.shtml> (12 September 2012). 96

Carlos Ortiz, ‘Regulation Private Military Companies: States and the Expanding Business of Commercial

Security Provision’, in Libby Assassi, Kees van der Pilj and Duncan Wigan (eds), Global Regulation. Managing

Crises After the Imperial Turn (Basingstoke: Palgrave Macmillan) p.214. 97

Kathleen M. Jennings, ‘Armed Services: Regulating the Private Military Industry’, Fafo report No. 532

(2006) p.29.

189

penalties.98

In practice, however, the ITAR system has been criticised for allowing weak

monitoring to take place once a company is licensed.99

The Federal Acquisition Regulation is another notoriously complex and consequent

body of law that normally applies to intelligence contractors.100

At the agency level, the FAR

is usually accompanied by further guidance, such as the Defense Federal Acquisition

Regulation Supplement (DFARS) at the DOD. In the military, contractors are ‘responsible for

ensuring that employees comply with laws, regulations, and military orders issued in the

theatre of operations’. As a result, the military commander ‘has limited authority for taking

disciplinary action’, except when a criminal behaviour occurs.101

Following the FAR, the

executive branch can rely on contract debarment to sanction private contractor

wrongdoings.102

However, this type of sanction is largely insufficient given the impact

wrongdoings can have on public spending, human rights, and civil liberties. Moreover,

debarring or fining contractors for their failure to perform remains a ‘post-event remedy’ that

is, according to one expert, ill-suited to the needs of commanders operating in a conflict

environment.103

Furthermore, sanctions have not always been applied convincingly since

suspended and debarred contractors have continued to be contracted for other similar tasks.104

Overall, Bowman has pointed out that the regulatory process applying to contractors was

‘designed in a different era and for different deliverables’.105

In particular the FAR, despite

some evolutions, was created for the procurement of goods while service contracts have

98

McVey, ‘ITAR – what government contractors need to know’. 99

See for example: Deborah Avant, The Market for Force. The Consequences of Privatizing Security

(Cambridge: Cambridge University Press 2005) pp. 150-1; Herbert Wulf, Internationalizing and Privatizing

War and Peace (Basingstoke : Palgrave Macmillan 2005) p.190; Kinsey, Christopher, Corporate Soldiers and

International Security (London: Routledge 2006) p.157; Peter W. Singer, Corporate Warriors. The Rise of the

Privatized Military Industry (London: Cornell University Press 2008) p.239; Jackson Maogoto, Virginia

Newell, and Benedict Sheehy, Legal Control of the Private Military Corporation (Basingstoke: Palgrave

Macmillan 2009) pp. 130-1. 100

Bowman, ‘Legal Issues of Outsourcing Military Functions in wartime’, p.427; Gale, ‘Intelligence

Outsourcing in the U.S. Department of Defense: Theory, Practice, And Implications’, p.31; Bruneau,

‘Contracting Out Security’, p.18. 101

Congressional Budget Office, Contractors’ Support of U.S. Operations in Iraq, August 2008, p.20. 102

For more on the use of debarment, see: Kate M. Manuel, Debarment and Suspension of Government

Contractors: An Overview of the Law Including Recently Enacted and Proposed Amendments, Congressional

Research Service Report for Congress, 19 November 2008. 103

Bowman, ‘Legal Issues of Outsourcing Military Functions in wartime’, p.427. 104

For examples of debarment and the inconsistent application of sanction to defence contractors, see:

Department of Defense, Office of the Under Secretary of Defense for Acquisition, Technology and Logistics,

Report to Congress on Contracting Fraud, January 2011, pp. 4-5. These cases do not directly concern

intelligence activities, but the report mentions the debarment of contracts of some defence contractors, such as

L-3 Communications or ManTech, that also provide intelligence services to the US government. 105

Bowman, ‘Legal Issues of Outsourcing Military Functions in wartime’, p.423.

190

become more frequent.106

In addition, regulations do not apply equally to all agencies and the

CIA benefit from exemptions, or ‘extraordinary’ authorities.107

According to a CIA lawyer,

‘many of the requirements and restrictions of the generally-applicable procurement

authorities would frustrate the collection of intelligence and the protection of intelligence

sources and methods’.108

Available evidence suggests that congressional efforts to enforce sanctions against

private intelligence providers have been virtually non-existent. This can be related to the

position of Congress as an outsider because it does not control but oversees the activities of

the intelligence community. Congressional power of the purse through oversight is limited

since companies supporting the intelligence community do not figure in the intelligence

budget.109

Deborah Avant and Lee Sigelman further remarked that Congress has been unable

to use its powers ‘to structure the internal working of PMSCS [Private Military and Security

Companies] - who gets promoted, blanket requirements for particular jobs, punishments for

wrongdoing and so on as it has the workings of the military branches’.110

Although Congress

could have legislated to sanction the outsourcing of a particular type of activity or bar

outsourcing to a particular company, it did not directly do so from 2001 to 2009.111

With respect to the judicial branch, the prosecution and conviction of intelligence

contractors has been the exception rather than the rule. In the specific case of intelligence

contractors, national law is the most relevant since most intelligence activities are typically

illegal under international law.112

However, there is very little, if any, literature on the topic.

Considering the literature on PMSCs, a series of statutes could apply to intelligence

contractors. The Military Extraterritorial Jurisdiction Act (MEJA) applies to contractors if

106

Bruneau, ‘Contracting Out Security’, p.18; Legal Expert on National Security Contracting, interview with

author, 4 August 2001, Arlington, VA. 107

Ginger Ann Wright, ‘Procurement Authorities of the CIA’, Administrative Law Review 53/2 (2001) p.1211. 108

Ibid, p.1198. 109

Congressional staffer working on national security affairs B, interview with author. 110

Deborah Avant and Lee Sigelman, ‘Private Security and Democracy: Lessons from the US in Iraq’, Security

Studies 19/2 (2010) p.251. 111

Congressional responses, not sanctions, to the increasingly apparent problems plaguing public-private

intelligence ‘partnerships’ in the early twenty-first century are explored in further details in the next chapter. 112

In addition, this thesis examines the US, and not an international, system of intelligence accountability. On

the application of international law to the activities of private security and military companies, see: Michael N.

Schmitt, ‘Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian

Employees’, Chicago Journal of International Law 5/2 (2004) pp. 511-46; Christopher Kinsey, ‘Challenging

international law: a dilemma of private security companies’, Conflict, Security & Development 5/3 (2005) pp.

269-93; James Cockayne, ‘The global reorganization of legitimate violence: military entrepreneurs and the

private face of international humanitarian law’, International Review of the Red Cross 88/863 (2006) pp. 459-

90; Emanuela-Chiara Gillard, ‘Business goes to war: private military/security companies and international

humanitarian law’, International Review of the Red Cross 88/863 (2006) pp. 525-72; Renée de Nevers, ‘Private

Security Companies and the Laws of War’, Security Dialogue 40/2 (2009) pp. 171-87; Laura Dickinson,

Outsourcing War and Peace (London: Yale University Press 2011) pp. 44-9.

191

they ‘commit acts abroad that would qualify as federal crimes’.113

Until 2004, the MEJA only

applied to contractors working directly for the Department of Defense.114

Since 2004, this

statute applies to entities ‘supporting a Department of Defense mission’115

and, according to a

legal scholar, this could include government entities such as the CIA.116

However, the role of

the MEJA has been criticised for relying on ‘US Attorneys to “accept” cases referred to them

from an overseas-military command’. This procedure perhaps explains why very few

civilians have been prosecuted for violating the MEJA.117

Other federal statutes which are

frequently mentioned in the literature include the War Crimes Act, the Torture statute, and

the Uniform Code of Military Justice (UCMJ).118

The UCMJ became particularly relevant

following the passage of the National Defense Authorization Act for FY 2007, which

amended the code to make it applicable not only in times of declared war but also in

‘contingency operations’.119

However, trying civilians under military law poses serious

constitutional and operational questions.120

As a result, Rep. David Price (D-NC) argued that

the ‘UCMJ should not be considered a reliable basis for providing accountability to PSCs

overseas’.121

The mere existence of statutes does not ensure relevant sanctions are applied. Many

commentators have emphasised the insufficiency of the legal basis to control PMSCs and

their employees.122

For Eric Rosenbach and Aki Peritz the laws applying to contractors in

conflict zone ‘remain vague’.123

For example, jurisdictional limitations have made it difficult

to prove that an accused contractor is acting as an agent of the US government.124

The lack of

113

Dickinson, Outsourcing War and Peace, p.50. 114

US Congress, Pub. Law 106-523, Military Extraterritorial Jurisdiction Act, 106th

Congress, 2nd

sess., 22

November 2000, section 3267 (1)(A). 115

US Congress, Pub. Law 108-375, Ronald W. Reagan National Defense Authorization Act for Fiscal Year

2005, 108th

Congress, 2nd

sess., 28 October 2004, section 1088. 116

Dickinson, Outsourcing War and Peace, p.50. 117

Geoffrey S. Corn, ‘Contractors and the Law’, in Christopher Kinsey and Malcolm Hugh Patterson (eds),

Contractors and War. The Transformation of US Expeditionary Operations (Stanford, CA: Stanford University

Press 2012) p.171. 118

Dickinson, Outsourcing War and Peace, p.51; Corn, ‘Contractors and the Law’, pp. 171-3; David E. Price,

‘Private Contractors, Public Consequences. The Need for an Effective Criminal Justice Framework’, in Kinsey

and Patterson (eds), Contractors and War, pp. 210, 214-5. 119

US Congress, Pub. Law 109-364, John Warner National Defense Authorization Act for Fiscal Year 2007,

109th

Congress, 2nd

sess., 17 October 2006, section 2083. 120

Congressional Budget Office, Contractors’ Support of U.S. Operations in Iraq, August 2008, p.23. 121

Price, ‘Private Contractors, Public Consequences’, p.215. 122

See for example: Bruneau, ‘Contracting Out Security’, p.16. 123

Eric Rosenbach and Aki J. Peritz, ‘Confrontation or Collaboration. Congress and the Intelligence

Community. The Role of Private Corporations in the Intelligence Community’, Intelligence and Policy Project

of Harvard Kennedy School's Belfer Center for Science and International Affairs, July 2009, p.3. 124

E.L. Gaston, ‘Mercenarism 2.0? The rise of the Modern Private Security Industry and Its Implications for

International Humanitarian Law Enforcement’, Harvard International Law Journal 49/1 (2008) p.246. See also:

Voelz, ‘Contractors and Intelligence’, pp. 597, 599; Glenn J. Voelz, Managing the Private Spies: The Use of

192

jurisdiction was particularly prominent in the case of the Abu Ghraib abuses where no

existing statute ‘covered the actions of private military contractors’.125

Similarly, a legislative

attorney for the Congressional Research Service argued that ‘some contractor personnel who

commit crimes might not fall within the statutory definitions’.126

Overall, although laws have

regulated the use and behaviour of intelligence contractors from 2001 to 2009, the legal basis

for sanctioning their wrongdoings remained uncertain. The legal framework applying to

PMSCs and intelligence contractors has also suffered from an enforcement gap and various

factors explain this ‘failure of law in action’.127

A congressional expert emphasised an

‘uncertainty with respect to the courts’ interpretation of the statutes and willingness to apply

them to particular facts, which may effectively discourage prosecution’.128

Uncertainties have

further been reinforced by the traditionally deferential stance of the courts towards the

executive branch in matters of national security.129

In some cases, determining contractors’

responsibilities can prove challenging because the lines of authority are more confused in a

blended workforce. Frederick Kaiser, a former expert at the Congressional Research Service,

noted that ‘a lot of contracts are bundled…that means there are a number of separate private

firms that are operating within, under a certain contract. That means further decentralization

and difficulty in actually identifying or pinpointing who is responsible for what part of the

contract’.130

In some cases, contractors do not only supervise other contractors but also

government employees.131

This fragmentation of the government’s authority has weakened

the enforcement of existing statutes.132

Moreover, when contractors operate abroad, gathering

a satisfying degree of evidence often becomes practically impossible because in most cases,

Commercial Augmentation for Intelligence Operations (Washington DC: Joint Military Intelligence College

2007) pp. 28-31. 125

Ian Kierpaul, ‘The Mad Scramble of Congress, Lawyers, and Law Students After Abu Ghraib: The Rush to

Bring Private Military Contractors to Justice’, University of Toledo Law Review 39/2 (2008) p.409. 126

Jennifer K. Elsea, ‘Private Security Contractors in Iraq and Afghanistan: Legal Issues’, Congressional

Research Service Report for Congress, 7 January 2010, p.18. 127

Laura A. Dickinson, ‘Outsourcing Covert Activities’, Journal of National Security Law & Policy 5/2 (2012)

p.525. 128

Elsea, ‘Private Security Contractors in Iraq and Afghanistan: Legal Issues’, p.18. 129

Louis Fisher, ‘Rethinking The State Secrets Privilege’, in Loch K. Johnson (ed.), The Oxford Handbook of

National Security Intelligence (New York: Oxford University Press 2010) pp. 657, 670; Michael J. Greenlee,

‘National security letters and intelligence oversight’, in Russell A. Miller (ed.), US National Security,

Intelligence and Democracy. From the Church Committee to the War on Terror (London: Routledge 2008)

p.196; Samuel Issacharoff, ‘Political Safeguards in Democracies at War’, Oxford Journal of Legal Studies 29/2

(2009) p.213. For evidence to the contrary see: Frederick F. Manget, ‘Intelligence and the Rise of Judicial

Intervention. Another System of Oversight’, Studies in Intelligence 39/5 (1996) pp. 43-50. 130

Frederick Kaiser, US Senate, Committee on Homeland Security and Governmental Affairs, Oversight of

Government Management, the Federal Workforce, and the District of Columbia Subcommittee, Government-

wide Intelligence Community Management Reforms, Hearing, 110th

Congress, 2nd

sess., 29 February 2008, p.21 131

Bernard D. Rostker, A Call to Revitalize the Engines of Government (Santa Monica, CA : RAND 2008) p.7. 132

Laura Dickinson, Outsourcing War and Peace, p.54; Corn, ‘Contractors and the Law’, p.171 (note 43).

193

substantive judicial review supposes very high costs since it would require transporting

evidence or relocate the court on the field, secure witnesses and so on.133

Thomas Bruneau

has also pointed out the ‘complications arising from the strict rules regarding evidence in US

courts and the ability of the contractors to hire the best lawyers that money can buy’.134

From 2001 to 2009, the number of indictments targeting intelligence contractors has

been extremely limited. Since the beginning of the GWOT, only one intelligence contractor

was prosecuted and convicted for a case of human rights abuse. David A. Passaro, a former

CIA independent contractor, was indicted for ‘knowingly and intentionally’ assaulting an

Afghan prisoner, which ‘resulted in serious bodily injury’.135

The Afghan prisoner ultimately

died from these injuries, and Passaro was convicted of assault in a US Federal Court under

the Special Maritime and Territorial Jurisdiction. According to the Attorney General, the case

‘would have been more difficult to investigate and prosecute were it not for the USA

PATRIOT Act’ which ‘extended U.S. law enforcement jurisdiction over crimes committed

by or against U.S. nationals on land or facilities designated for use by the United States

government’, regardless of the agency in charge.136

In another case, Iraqi detainee Manadel

al-Jamadi died during an interrogation and the Justice Department decided to open a torture

and war crimes grand jury investigation into the role of the CIA employee leading the

interrogation, Mark Swanner.137

A military autopsy concluded that al-Jamadi’s death was

caused by homicide. However according to a CIA investigation, ‘Swanner never abused al-

Jamadi’.138

Recently, the Department of Justice declined to prosecute Swanner because it

judged that the admissible evidence was insufficient ‘to obtain and sustain a conviction

beyond reasonable doubt’139

and in other cases, CIA officers involved in human rights abuses

133

Avant, The Market for Force, p.66; Percy, ‘Regulating The Private Security Industry’, p.37. 134

Bruneau, ‘Contracting Out Security’, p.16. 135

US District Court for the Eastern District of North Carolina (Western Division), United States of America v.

David A. Passaro, Case No. 5:04-CR-211-1, Indictment, 17 June 2004. 136

Attorney General Ashcroft cited in US District Court for the Eastern District of North Carolina (Western

Division), United States of America v. David A. Passaro, Memorandum in Support of Motion to Dismiss for

Lack of Jurisdiction, 1 November 2004, p.5. See also: Dickinson, Outsourcing War and Peace, p.50. 137

Jane Mayer, ‘Deadly interrogation’, New Yorker, 14 November 2005,

<http://www.newyorker.com/archive/2005/11/14/051114fa_fact> (accessed 20 October 2012); Mark

Thompson, ‘Haunted by Homicide: Federal Grand Jury Investigates War Crimes and Torture in Death of ‘the

Iceman’ at Abu Ghraib, Plus Other Alleged CIA Abuses’, Time, 13 June 2011,

<http://nation.time.com/2011/06/13/haunted-by-homicide-federal-grand-jury-investigates-war-crimes-and-

torture-in-death-of-the-ice-man-at-abu-ghraib-and-other-alleged-cia-abuses/> (accessed 4 September 2012). 138

Daily Mail Reporter, ‘Secret grand jury probing possible CIA WAR CRIMES in Iraq as investigators revisit

Abu Ghraib death of 'the iceman', Daily Mail, 14 June 2011, <http://www.dailymail.co.uk/news/article-

2003589/Secret-grand-jury-probing-possible-CIA-war-crimes-Iraq-Abu-Ghraib-death-

iceman.html#ixzz251OPGlXJ> (accessed 4 September 2012). 139

Department of Justice, Office of Public Affairs, ‘Statement of Attorney General Eric Holder on Closure of

Investigation into the Interrogation of Certain Detainees’, 30 August 2012,

194

have only been reprimanded.140

In contrast, lawsuits against the company CACI for detainee

abuses at Abu Ghraib are pending (2013).141

Recently, in a $5.28 million settlement, the firm

L-3 Services Inc. has paid victims for the abuses committed on 71 former inmates at Abu

Ghraib and other detention facilities.142

The trial involving CACI is expected to take place in

summer 2013 as Iraqis who were allegedly tortured are still seeking compensation from the

company. Regardless of the outcome of these cases, court decisions have been long overdue

and intelligence accountability demands an urgency that is often anathema to due legal

process.

The scarcity of prosecution targeting private intelligence providers is surprising given

the IC’s extensive reliance on the private sector.143

This situation can be explained by

regulatory gaps and vague statutes.144

However, the absence of prosecutions can also be

related to political preferences and the relatively weak democratic accountability standards

set by the policies followed by the administration of George W. Bush. In the broader context

of PMSCs, Rep. Price (D-NC) pointed out a ‘lack of political willingness of the

administration’ and a lack of resources ‘to investigate and prosecute alleged crimes

overseas’.145

Laura Dickinson also argued that the problem is ‘the mobilization of sufficient

political will to actually enforce the laws that exist’.146

Ultimately, the government remains

<http://www.justice.gov/opa/pr/2012/August/12-ag-1067.html> (accessed 5 September 2012); BBC, ‘CIA

interrogation probe ends without any charges’, <http://www.bbc.co.uk/news/world-us-canada-19432553>

(accessed 5 September 2012). 140

Marian Wang, ‘CIA Officials Involved in Abuse and Wrongful Detention Rarely Reprimanded, Sometimes

Promoted’, 9 February 2011,

<http://www.propublica.org/blog/item/cia-officials-involved-in-abuse-and-wrongful-detention-rarely-

reprimanded-s> (accessed 5 September 2012). 141

US District Court for the Southern District of Ohio (Colombus Division), Al Shimani v. CACI International

et al., Case No.2:08cv637, 30 June 2008; Center for Constitutional Rights, ‘Al-Quraishi et al v. Nakhla et al.’,

<http://ccrjustice.org/ourcases/current-cases/al-quraishi> (accessed 4 October 2012); Center for Constitutional

Rights, ‘Al Shimari v. CACI et al.’, <http://ccrjustice.org/ourcases/current-cases/al-shimari-v-caci-et-al>

(accessed 4 October 2012). See also: US District Court for the Central District of California, Emad Khudhayir

Shahuth Al-Janabi v. Steven A. Stefanowicz et al., Civil Action No.08CV-02913. For more on this complaint,

see: Center for Constitutional Rights, ‘CCR Files New Abu Ghraib Torture Claims Against Military

Contractors’ <http://www.ccrjustice.org/newsroom/press-releases/ccr-files-new-abu-ghraib-torture-claims-

against-military-contractors> (accessed 18 February 2012). 142

Pete Yost, ‘Abu Ghraib Settlement: Defense Contractor Engility Holdings Pays $5M To Iraqi torture

Detainees’, Huffington Post, 8 January 2013 <http://www.huffingtonpost.com/2013/01/08/abu-ghraib-

settlement-defense-contractor-pays_n_2435226.html> (accessed 28 January 2013). See also: US Securities and

Exchange Commission, Form 10-Q, Engility Holdings, Inc., Commission file number: 001-35487, 28

September 2012, p.11,

<http://www.sec.gov/Archives/edgar/data/1544229/000119312512467606/d406499d10q.htm> (accessed 28

January 2013). 143

Shorrock, Spies for Hire, p.370. 144

For a similar argument about the lack of legal clarity surrounding the use of private security contractors:

Corn, ‘Contractors and the Law’, p.175. 145

Price, ‘Private Contractors, Public Consequences’, pp. 222-3. 146

Dickinson, Outsourcing War and Peace, p.42.

195

responsible when wrongdoings occur, whether the intelligence community’s reliance on the

private sector is under-regulated or not. In the first case, the government is responsible for

being unable to pass new or amend existing laws. The government has a duty to control and

regulate intelligence activities to make sure they remain effective, efficient, and respect

liberal democratic values as much as possible. This duty does not disappear when

government activities are privatised. In the second case, if relevant sanctions are available,

the government is responsible for its inability or unwillingness to bring justice to contractors’

victims.147

From 2001 onwards, key accountability holders’ have not put enough effort into the

control, the oversight and the review of public-private intelligence ‘partnerships’. This

situation is worrying considering the imperfection, the ineffectiveness and the inability of the

market for intelligence to self-regulate. Research has long established that for privatisation to

be successful, ‘it must be carefully designed and executed’.148

This was not the case of

intelligence following the 9/11 attacks. The privatisation of intelligence during the GWOT

occurred without the adequate government acquisition workforce and regulations. Joshua

Foust argued that ‘the government has designed a system that encourages abuse’.149

In this

view, the government is responsible for fostering the US intelligence community’s reliance

on the private sector while overlooking issues of contract management. Michael Hayden

himself has recognised that ‘the problem is not with contractors’ but ‘with our management

of contractors’.150

These issues, it should be noted, were not new and the ‘sins of outsourcing’

have been very well examined by the literature on privatisation.151

Furthermore, key

accountability holders such as the SSCI were already aware of the existence of some flaws in

the intelligence acquisition process in the 1990s.152

147

For a similar argument, see: Michaels, ‘All the President’s Spies’, p.905. 148

Stuart M. Butler, ‘Changing The Political Dynamics of Government’, in Steven H. Hanke (ed.), Prospects

for Privatization (New York: The Academy of Political Science 1987) p.13. 149

Foust, Statement before the U.S. Senate Committee on Homeland Security and Governmental Affairs, p.2. 150

Hayden, interview with Frontline. 151

See for example: Jérôme Barthélemy, ‘The Seven deadly sins of outsourcing’, Academy of Management

Executive 17/2 (2003) p.87. 152

US House of Representatives, Permanent Select Committee on Intelligence, IC21: The Intelligence

Community in the 21st Century, II. Intelligence Community Management, 104

th Congress, 5 June 1996,

<http://www.gpo.gov/fdsys/pkg/GPO-IC21/html/GPO-IC21-2.html> (accessed 20 August 2012).

196

Triggering awareness

From 2001 to 2009, a series of incidents triggered intelligence accountability holders’

awareness of the problems relating to public-private intelligence ‘partnerships’ and can be

best described in terms of ‘light’ and ‘heavy’ triggers. Light triggers are minor incidents that

generate a limited degree of accountability activity or a few reactions involving some

accountability holders. In this case, a continuous stream of executive reports and some

congressional reactions focused on efficiency in the case of the NSA acquisition system, and

the propriety of public-private intelligence interactions in the case of CIA IG investigations.

Heavy triggers are major incidents that generate sustained public reactions (public debate,

official statements, media coverage, congressional hearings) and extensive accountability

activity involving many accountability holders. From 2002 onwards a succession of heavy

triggers involving the private sector raised public awareness of the accountability problems

concerning public-private intelligence interactions. The role of media, and investigative

journalism in particular, in this transition from light to heavy trigger was particularly central.

In turn, these triggers crystallised intelligence accountability holders’s focus around four

broad issues: conflict of interest, efficiency, civil liberties, and human rights.153

Each of these

issues came to the fore following a relatively similar pattern involving revelations and

sustained coverage in media outlets, then there was public pressure from interest groups and

reactions by at least two of the three branches of government. In each case, accountability

holders devoted varying degrees of attention to the issue at hand and to the involvement of

the private sector.

Light triggers

The Inspector General at the CIA

Under George W. Bush, the Office of the Inspector General (OIG) at the CIA demonstrated a

continuous awareness and made evident efforts to tackle accountability problems relating to

public-private interactions within the agency. During his nomination hearing, John L.

Helgerson, the Inspector General (IG) between 2002 and 2009, mentioned that he intended

‘to concentrate on the CIA procurement acquisition process for information technology and

information systems’ because ‘this is an area that frankly in any government agency is ripe

153

These issues are organised according to the approximate degree of public attention they generated, starting

from little national coverage to extensive national and international coverage.

197

for waste, fraud and abuse’.154

Declassified reports from the OIG at the CIA reveal

continuous scrutiny over public-private intelligence interactions between 2001 and 2009. By

statutory requirement, the IG provides semi-annual reports summarising its activities for the

immediately preceding six-month period to the Director of the CIA.155

These documents are

particularly relevant since the IG has ‘full and direct access to all Agency information

relevant to the performance of its duties’.156

From January 2001 to December 2008, the IG

submitted 16 semi-annual reports to the Director of the CIA. In addition to these reports, a

special review on Counterterrorism Detention and Interrogation Activities is also publicly

available.157

These documents show persisting concern with the propriety and efficiency of

public-private intelligence ‘partnerships’. Among various tasks, the IG conducted recurrent

investigations into allegations of contract fraud (see table 1).158

154

US Senate, Select Committee on Intelligence, Nomination of John L. Helgerson to be Inspector General,

Central Intelligence Agency, 107th

Congress, 2nd

sess., 15 and 25 April 2002, p.7. 155

US Congress, Pub. Law 81-110, Central Intelligence Agency Act of 1949, 81th

Congress, 1st sess., 20 June

1949, section 17. 156

Within the CIA, the OIG is sometimes regarded as a cumbersome outsider because it was created by and is

directly answerable to Congress. For more on this see: L. Britt Snider, The Agency and the Hill: CIA’s

Relationship with Congress, 1946-2004 (Washington DC: Center for the Study of Intelligence 2008) pp. 68-9,

147-9, 373. 157

These 17 documents were made available by the Electronic Frontier Foundation (EFF) as a result of a FOIA

lawsuit it filed in July 2009 against the CIA and half a dozen other intelligence agencies. See: EFF, ‘Intelligence

Agencies' Misconduct Reports’ <https://www.eff.org/foia/intelligence-agencies-misconduct-reports> (accessed

6 February 2012). Most of the pages in these documents remain excised. 158

The graph and its trend line show that the sheer number of investigations concerning procurement problems

did not grow exponentially during the GWOT.

0

5

10

15

20

25

Num

ber

of

inves

tigat

ions

Table 1 - Current Investigations concerning

Procurement Fraud, 2001 - 2008 (OIG, CIA)

OIG reports

Linear (OIG

reports)

KEY

198

Beside procurement fraud, investigations, audits or reviews dwelled on many other aspects

such as: the mischarging and overpayment of contract,159

wasteful or improper contract

practices,160

ethics improprieties such as the acceptance of gratuities from Agency

contractors, or an improper relationship between a contracting officer’s technical

representative and an agency contractor.161

In at least two cases, reports mentioned potential

counter-intelligence concerns in terms of information security and background investigation

involving contractors.162

The IG also played a more active role in furthering employees’ awareness of these

problems and when necessary referred cases to other accountability holders. Accountability at

this level takes the form of ordinary, not to say banal, bureaucratic tasks that are nonetheless

essential to the executive control of intelligence. In early 2001, in order to minimise problems

regarding contract and procurement fraud, investigation staff representatives provided

‘awareness briefings to contracting officers concerning common types of fraud indicators’

and ‘organized a fraud focus group to gather and share information’.163

The staff also issued

employees bulletin on labour mischarging and other types of fraud.164

In the cases where

there was a reasonable belief that violations of federal criminal law had been committed, the

OIG formally referred matters to the Department of Justice.165

For example, a series of staff

159

Central Intelligence Agency, Inspector General, Semiannual report to the Director of Central Intelligence,

July-December 2001; idem, Semiannual report to the Director of Central Intelligence, January-June 2002. The

second report refers to a review of Contract Invoicing allegations. See also: idem, Semiannual report to the

Director of Central Intelligence, January-June 2003; idem, Semiannual report to the Director, Central

Intelligence Agency, January-June 2005; idem, Semiannual report to the Director, Central Intelligence Agency,

July-December 2005. 160

Idem, Semiannual report to the Director of Central Intelligence, January-June 2001. This report refers to an

Audit about Agency Practices Associated with Independent Contractors. Idem, Semiannual report, January-June

2002. This report refers to an audit about the Efficiency of the Covert Procurement Process. Idem, Semiannual

report, January-June 2003; idem, Semiannual report to the Director, Central Intelligence Agency, July-

December 2006; idem, Semiannual report to the Director, Central Intelligence Agency, January -June 2008. 161

Idem, Semiannual report, January-June 2002. This report refers to an investigation about Alleged Contracting

and Ethics Improprieties. Idem, Semiannual report, January-June 2003. This report refers to an investigation

about Acceptance of Gratuities from Agency Contractors. Idem, Semiannual report to the Director of Central

Intelligence, July-December 2003. This report refers to alleged improper relationship between a contracting

officer’s technical representative and an agency contractor. Idem, Semiannual report, July-December 2005. This

report refers to alleged conflict of interest – contract improprieties. Idem, Semiannual report to the Director,

Central Intelligence Agency, July-December 2007. This report refers to an investigation about allegations of

ethical violations in contracting. 162

Idem, Semiannual report to the Director of Central Intelligence, January-June 2004. This report refers to an

audit into the Security of National security Systems Operated by Agency contractors. Idem, Semiannual report

to the Director of Central Intelligence, January-June 2007, p.36. This report refers to a contractor who pleaded

guilty for ‘falsifying background investigation reports on potential employees’. 163

Central Intelligence Agency, Inspector General, Semiannual report, January-June 2001, p.66. 164

See for example: idem, Semiannual report, January-June 2008, p.31; idem, Semiannual report to the Director,

Central Intelligence Agency, July-December 2008, p.43. 165

Idem, Semiannual report, January-June 2005.

199

investigations resulted in contractors’ guilty pleas and monetary restitutions to the Agency.166

In another case, ‘an employee was convicted of conspiracy to accept gratuities in exchange

for giving preferential treatment to an Agency contractor’.167

Overall, these issues drew some

attention from accountability holders but mostly remained at the level of the executive and

judicial branches. Most of the details behind the OIG investigations and audits have remained

unknown to the public and this limited reach explains why, on the whole, these activities are

considered as light triggers.

Congressional oversight

Congress demonstrated an awareness of the need and the risks of intelligence outsourcing in

the early twenty-first century. The legislative branch as a whole adopted a relatively

supporting approach to intelligence contracting. In the Intelligence Authorization Acts for FY

2002 and 2003 Congress explicitly supported intelligence community contracting,

considering that:

The Director of Central Intelligence should continue to direct that elements of the

intelligence community, whenever compatible with the national security interests

of the United States and consistent with operational and security concerns related

to the conduct of intelligence activities, and where fiscally sound, should

competitively award contracts in a manner that maximizes the procurement of

products properly designated as having been made in the United States.168

Recognising a need for intelligence contractors’ augmentation, a SSCI report accompanying

the Intelligence Authorization for FY 2004 suggested providing authority for the Intelligence

Community elements of the Department of Defense to award contracts.169

The authorisation

act itself granted a similar authority to the Federal Bureau of Investigation.170

These

166

Central Intelligence Agency, Inspector General, Semiannual report, January-June 2005, p.60; Idem,

Semiannual report, July-December 2005, p.2. 167

Idem, Semiannual report to the Director of Central Intelligence, July-December 2002, p.3. 168

US Congress, Pub. Law 107-108, Intelligence Authorization Act for Fiscal Year 2002, 107th

Congress, 1st

sess., 28 December 2001, section 303; US Congress, Pub. Law 107-306, Intelligence Authorization Act for

Fiscal Year 2003, 107th

Congress, 2nd

sess., 27 November 2002, section 303. 169

US Senate, Select Committee on Intelligence, Intelligence Authorization for Fiscal Year 2004, Report 108-

44, 108th

Congress, 1st sess., 8 May 2003, p.19. See also: US Senate, Select Committee on Intelligence,

Intelligence Authorization for Fiscal Year 2007, Report 110-2, 110th

Congress, 1st sess., 24 January 2007, pp.

36-37. The latter report recommends providing authority for the Bureau of Intelligence and Research of the

Department of State to award personnel services contracts. 170

US Congress, Pub. Law 108-177, Intelligence Authorization Act for Fiscal Year 2004, 108th

Congress, 1st

sess., 28 November 2003, section 311. Interestingly, section 302 (b) of the Act also requires an annual report

from the Director of the FBI including: the number of contracts entered into during the period, the cost, length

and type of service provided under each such contract, and the availability of the US government personnel to

perform similar services.

200

authorisations show that congressional oversight does not only take place when a scandal or

major incidents occur and confirm that Congress endorsed the privatisation of intelligence.

Nevertheless, Congress also voiced concern about the efficiency of public-private

intelligence ‘partnerships’. The NSA’s efforts to modernise itself underwent increased

scrutiny from congressional committees in the first decade of the twenty-first century.171

From early 2001 to 2004 the Intelligence Committees arranged a series of briefings and

produced reports that expressed particular frustration with ‘the state of the NSA acquisition

process’.172

The Senate Armed Service Committee (SASC) in 2003 set a deadline for the

NSA to ‘put its books in order’.173

Ultimately, the Defense Authorization Act for FY 2004

took away NSA’s authority to sign major acquisition contracts and gave it to the

Undersecretary of Defense for acquisitions, technology and logistics,174

in order to ‘stimulate

better executive branch oversight of NSA systems acquisition’.175

This kind of problem was

not limited to the NSA. The HPSCI found that ‘the magnitude and consistency of the growth

of recent acquisitions indicates a systemic bias on the part of Intelligence Community

components to underestimate the funding required for major acquisitions’.176

Congressional

interest in the IC acquisition process clearly raised the issue at a level of public awareness

superior to most of the procurement fraud investigated by the CIA IG. However, up to 2005,

these concerns did not generate widespread media coverage. According to a search on Nexis,

171

The case of the NSA is particularly relevant since the agency absorbs a significant part of the budget of the

US intelligence community every year. In 2004, Bob Woodward estimated the NSA budget at around $6 billion.

See: Bob Woodward, Plan of Attack (New York and London: Simon & Schuster 2004) p.213. 172

US Congress, House Permanent Select Committee on Intelligence and Senate Select Committee on

Intelligence, ‘Report of the Joint inquiry into Intelligence Community Activities Before and After the Terrorist

Attacks of September 11, 2001’, December 2002, p.77; US Senate, Select Committee on Intelligence,

Committee Activities, Special Report, 3 January 2001 to 22 November 2002, 108th

Congress, 1st sess., 21 May

2003, p.14; US Senate, Select Committee on Intelligence, Intelligence Authorization for Fiscal Year 2004,

Report 108-44, p.16. 173

Ariel Sabar, ‘Congress curbs NSA's power to contract with suppliers’, 20 July 2003, Baltimore Sun,

<http://articles.baltimoresun.com/2003-07-20/news/0307200276_1_nsa-eavesdropping-agency> (accessed 15

February 2012); Matthew M. Aid, ‘Prometheus Embattled’, in Loch K. Johnson (ed.), Strategic Intelligence.

Vol.2 (London: Praeger Security International 2007) p.44. 174

US Congress, Pub. Law 108-136, National Defense Authorization Act for Fiscal Year 2004, 108th

Congress,

1st sess., 4 June 2003, section 804.

175 US Senate, Armed Service Committee, Advance Questions for Lieutenant General James Clapper USAF

(Ret.) Nominee for the Position of Under Secretary of Defense for Intelligence, 27 March 2007 <http://armed-

services.senate.gov/statemnt/2007/March/Clapper%2003-27-07.pdf> (accessed 18 February 2012). 176

US House of Representatives, Permanent Select Committee on Intelligence, Intelligence Authorization for

Fiscal Year 2004, Report 108-381, 108th

Congress, 1st session, 19 November 2003, p.46. See also Senator

Patrick Roberts’ (R-KS) comments about the National Reconnaissance Office’s inaccurate cost estimates for

satellite acquisition, in: US Senate, Select Committee on Intelligence, Nomination of Honorable Porter J. Goss

to be Director of Central intelligence, 108th

Congress, 2nd

sess., 14 and 20 September 2004, p.11. See also: US

Senate, Select Committee on Intelligence, Nomination of Ambassador John D. Negroponte to be Director of

National Intelligence, 109th

Congress, 1st sess., 12 April 2005, p.140; US Senate, Select Committee on

Intelligence, Nomination of Lieutenant general Michael V. Hayden, USAF, to Be Principal Deputy Director of

National Intelligence, 109th

Congress, 1st sess., 14 April 2005, p.69.

201

between 1 January 2001 and 31 December 2005 the New York Times published only two

articles mentioning acquisition problems at the NSA,177

and the Washington Post three.178

Overall the congressional attitude at the time can be characterised as cautious because key

committees supported the privatisation of intelligence but condemned the way in which it

was carried out by some agencies.

Heavy triggers

Conflicts of interest

Conflicts of interest involving public accountability holders and private contractors have

drawn particularly widespread attention. A congressman sitting on the HPSCI and the

Executive Director of the CIA interacted so closely with private intelligence providers that

they endangered the public interest. Marcus Stern revealed in 2005 that ‘a defense contractor

[the firm MZM Inc.] with ties to Rep. Randy Cunningham took a $700,000 loss on the

purchase of the congressman's San Diego house’179

and four days after the scandal broke, the

FBI opened an investigation.180

According to an FBI affidavit, ‘Cunningham demanded, and

Wade and Wilkes [respectively, the founder of MZM Inc. and ADCS Inc.] provided over $2

million in bribes in exchange for Cunningham using his office to influence the awarding of

public funds to the defense contractors’ companies’.181

In exchange, Cunningham sought to

use his position on the House intelligence committee ‘through requests for congressional

177

Scott Shane, ‘The Thinking Man's Spy -- Michael V. Hayden’, New York Times, 18 February 2005, p.16, A5;

Scott Shane, ‘Eavesdropping Isn't Easy, the Master at It Says’, New York Times, 17 August 2005, p.17, A14. 178

Walter Pincus, ‘Intelligence Shakeup Would Boost CIA; Panel Urges Transfer of NSA, Satellites, Imagery

From Pentagon’, Washington Post, 8 November 2001, A1; Walter Pincus and Dana Priest, ‘Spy Agencies

Faulted; Senate Cites Lack Of Coordination’, Washington Post, 13 May 2003, A17; Michael A. Wertheimer,

‘Crippling Innovation -- And Intelligence’, Washington Post, 21 July 2004, A19. 179

Marcus Stern, ‘Lawmaker's home sale questioned Cunningham defends deal with defense firm's owner’,

Copley News Service, 2 June 2005 <http://www.lexisnexis.com/uk/nexis/search/newssubmitForm.do> (accessed

10 January 2011). 180

Marcus Stern and Joe Cantlupe, ‘FBI looking at sale of U.S. Rep. Cunningham's home’, Copley News

Service, 17 June 2005 <http://www.lexisnexis.com/uk/nexis/search/newssubmitForm.do> (accessed 11 January

2011). Stern and Cantlupe mention reactions by both Naomi Seligman, the deputy director of Citizens for

Responsibility and Ethics in Washington, and the democrat House Minority Leader Nancy Pelosi (D-CA).

Cunningham’s indictment is accessible on the Washington Post, ‘US District Court, Southern District of

California, United States of America v. Kyle Dustin Foggo, Criminal Case No. 07 CR 0329 LAB, 13 February

2007 <http://media.washingtonpost.com/wp-srv/business/documents/indictment_foggo_wilkes.pdf> (accessed

22 February 2012). 181

Maurice J. Hattier, State of New York, Suffolk County, Affidavit, 05-1215M, p.11,

<http://legacy.utsandiego.com/news/politics/cunningham/images/070717hattieraffidavit.pdf> (accessed 30

October 2011). See also: US District Court for the Southern District of California, United States of America v.

Randall Harold Cunningham, ‘Government’s Objections to Presentence Report, filed 28 February 2006, pp. 5-6.

202

funding that benefited Wilkes, Wade and their companies’182

and lobbied to obtain HPSCI

support ‘for a new counterintelligence project at the Counterintelligence Field Activity’.183

This case was first brought to the attention of the Department of Defense in 2004 when the

IG received a hotline complaint.184

Once public, the story sparked near immediate reactions

by the Democratic Party and public interest groups that called for a full-scale investigation.185

On the whole, the scandal demonstrates how elected public accountability holders can shirk

their responsibility to further private interests. From the perspective of the accountability

process, it shows well how higher levels of accountability activity are correlated with public

knowledge of an incident.

The Cunningham affair led investigators to a second case involving defence

contractor Brent Wilkes and former CIA Executive Director Kyle Foggo.186

Foggo had

already been under investigation from the CIA IG for his potential involvement in the

Cunningham case through Wilkes.187

Although the Cunningham connection did not reveal

any wrongdoing, on 13 February 2007 Foggo and Wilkes were indicted and Foggo

subsequently pleaded guilty to a single count of fraud concerning bribery and misconduct

over a contract while prosecutors agreed to dismiss 27 other charges.188

This case inevitably

surfaced in the CIA Inspector General semi-annual reports although the names of the

defendants remain excised from the publicly available documents.189

Considering Congress,

the case of the former CIA EXDIR was barely mentioned during a congressional hearing of

182

Report of the Special Counsel for the Cunningham Enquiry, Executive Summary, Cunningham’s Plea, pp. 1-

2 <http://www.fas.org/irp/congress/2006_rpt/harman101706.pdf> (accessed 15 January 2012), p.3. 183

Ibid. See also: Department of Justice, Defense contractor Mitchell Wade pleads guilty to bribing former

Congressman “Duke” Cunningham, corrupting Department of Defense officials, and election fraud, 24 February

2006, p.3. 184

Hattier, Affidavit, p.52. 185

Jeffrey H. Birnbaum and Renae Merle, ‘Lawmaker-Contractor Deals Questioned; Congressman's

Relationship With Defense Firm Chief Sparks Call for Ethics Probe’, Washington Post, 17 June 2005, A29. For

Delay’s reaction, see: Patrick O’Connor, ‘Delay defends Cunningham’s home sale’, The Hill, 15 June 2005, p.3.

See also: Report of the Special Counsel for the Cunningham Enquiry, Executive Summary, Cunningham’s Plea,

pp. 1-2. The full report remains classified. 186

Wilkes was a co-conspirator in the Cunningham case and was later sentenced to 12 years of imprisonment.

See: Dean Calbreath and Jerry Kammer, ‘Poway contractor provided a loaner’, Copley News Service, 10

September 2005 <http://www.lexisnexis.com/uk/nexis/search/newssubmitForm.do> (12 January 2012). 187

Dean Calbreath, ‘No. 3 CIA official investigated on ties to Wilkes’, San Diego Union-Tribune, 4 March 2006

<http://www.signonsandiego.com/uniontrib/20060304/news_1n4foggo.html> (accessed 21 February 2012);

Mark Mazzetti and David Johnston, ‘C.I.A. Aide's House and Office Searched’, New York Times, 13 May 2006,

p.10, A1. 188

Matthew Barakat, ‘Kyle ‘Dusty’ Foggo, Former CIA#3 Gets more Than 3 Years In Prison’, Huffington Post,

26 February 2009, <http:// www.huffingtonpost.com/2009/02/26/kyle-dusty-foggo-former-c_n_170240.html>

(accessed 18 February 2012). 189

CIA Inspector General, Semiannual report, January – June 2007, p.2. The report mentions an investigation

involving ‘a former high-ranking official who, during the reporting period, was indicted on 30 counts related to

his handling of Agency contracts’.

203

the committee on the Judiciary concerning the resignation of a US Attorney.190

It is only

when Congress was directly concerned, in the Cunningham affair, that its members notably

reacted. Overall, both of these cases drew sustained public attention to the conflicts of interest

that can arise when public-private ‘partnerships’ go so far that the distinction between public

authority and private interest collapses. In such cases, the privatisation of intelligence offers

an opportunity for unscrupulous accountability holders to disregard ethical and legal

standards and use their position to make money instead of holding intelligence providers to

account. Considering the accountability process, it should be noted that these problems were

a consequence of public accountability holders’ decisions and not a result of privatisation per

se.

Efficiency

The problems of efficiency plaguing public-private ‘partnerships’ have also triggered

sustained reactions from multiple accountability holders. Public attention focused particularly

on the failure of the Trailblazer programme, which came to embody acquisition flaws at the

NSA.191

Although the programme had triggered executive and legislative scrutiny as early as

2002, it really became a heavy trigger when the media depicted it as an extravagant failure.192

The programme relied on a series of contractors and aimed to modernise NSA’s information

system.193

Following 9/11, the Director of the NSA gathered the impetus to push Trailblazer

190

See: US Senate, Committee on the Judiciary, Committee on the Judiciary, Report 110-522, Resolutions of

Contempt - Report to Accompany Resolutions finding Karl Rove and Joshua Bolten in Contempt of

Congress,110th

Congress, 2nd

sess., 19 November 2008, pp. 32, 47, 55. Foggo and Wilkes are mentioned here as

the committee investigates whether the case was related to the resignation of a former US Attorney for the

Southern District of California. 191

Another flawed programme was codenamed GROUNDBREAKER. For more on this programme, see:

National Security Agency/Central Security Service, Transition 2001, December 2000, p.33. Allegations of

mismanagement and waste relating to the handling of contracts also concerned the Counter-Intelligence Field

Activity within the Department of Defense. See: Department of Defense, Allegations of Mismanagement and

waste within the Counterintelligence Field Activity. 192

See for example: Siobhan Gorman, ‘System Error’, Baltimore Sun, 29 January 2006, A1; Mark Hosenball

and Evan Thomas, ‘Hold the Phone; Big Brother Knows Whom You Call: Is That Legal, and Will It Help Catch

the Bad Guys?’, Newsweek, 22 May 2006, pp. 22-3. 193

Siobhan Gorman, ‘Little-known contractor has close ties with staff of NSA’, Baltimore Sun, 29 January

2006, <http://articles.baltimoresun.com/2006-01-29/news/0601290158_1_saic-information-technology-

intelligence-experts> (accessed 16 January 2012). For more on the programme, see: James Bamford, The

Shadow Factory (New York: Doubleday 2008) pp. 325-30. The Department of Defense later described

Trailblazer as ‘major acquisition program ... to acquire an integrated system that is composed largely of

commercial technology to provide the much-needed mission capability against the global network’. See:

Department of Defense, Office of the Inspector General, Requirements for the Trailblazer and Thinthread

Systems, Report 05-INTEL-03, 15 December 2004, p.1.

204

forward instead of another programme called ThinThread which some considered more

effective and less intrusive.194

According to the Washington Post, a group of serving and

retired NSA officials, among which Thomas Drake, then senior executive at the NSA,

became increasingly concerned about Trailblazer and alerted Diane Roark, a Republican

staffer on the House intelligence committee. Roark contacted senior officials in the executive

branch but did not manage to trigger any significant investigation or audit. In September

2002, the same group of NSA colleagues filed a complaint with the Department of Defense

IG alleging that ‘NSA actions in the development of THINTHREAD and TRAILBLAZER

resulted in fraud, waste, and abuse’.195

The NSA IG discovered inadequate management and

oversight as well as overpayment of contractors as early as 2003.196

Its final report considered

that:

The National Security Agency is inefficiently using resources to develop a digital

network exploitation system that is not capable of fully exploiting the digital

network intelligence available to analysts from the Global Information Network...

The NSA transformation effort may be developing a less capable long-term

digital network exploitation solution that will take longer and cost significantly

more to develop. The NSA continued to support the “less capable” program and

its successor.197

These findings were strongly contested by the management of the NSA.198

However,

mistakes were not denied and during his nomination hearing to become Principal Deputy

Director of National Intelligence, Michael Hayden, then Director of the NSA, publicly

recognised that the agency ‘underestimated the costs by a couple to several hundred

194

See: Jane Mayer, ‘The Secret Sharer’, New Yorker, 23 May 2011,

<http://www.newyorker.com/reporting/2011/05/23/110523fa_fact_mayer?currentPage=all> (accessed 25 May

2011). 195

Department of Defense, Requirements for the Trailblazer and Thinthread Systems, p.i; Ellen Nakashima,

‘Former NSA executive Thomas A. Drake may pay high price for media leak’, Washington Post, 14 July 2010,

C01. 196

Nakashima, ‘Former NSA executive Thomas A. Drake may pay high price for media leak’, C01. See also:

Department of Defense, Requirements for the Trailblazer and Thinthread Systems, p.38. For cases of

contractors’ overbilling of the government, see for example: Chris Strohm, ‘Pentagon audit cited TSA nominee's

firm for overbilling’, Government Executive, 19 March 2010,

<http://www.govexec.com/defense/2010/03/pentagon-audit-cited-tsa-nominees-firm-for-overbilling/31091/ >

(accessed 20 April 2012). The Commission on Wartime Contracting estimated that from $31 to $60 billion has

been lost to contract waste and fraud in America’s contingency operations in Afghanistan and Iraq. Commission

on Wartime Contracting in Iraq and Afghanistan, ‘Transforming Wartime Contracting. Controlling costs,

reducing risks’, Final report to Congress, August 2011, p.11. 197

US District Court for the Northern District of Maryland, United States of America v. Thomas Andrews

Drake, Case 1:10-cr-00181-RDB, Document 75, Filed 15 March 2011, p.3.

<http://static1.firedoglake.com/28/files/2011/05/110315-Defense-Support-Whistleblow.pdf> (accessed 12

February 2012). 198

Department of Defense , Requirements for the Trailblazer and Thinthread Systems, pp. 95, 107-10. The

details of these disagreements remain classified. However the report shows signs of strong disagreement

between the NSA management team and the office of the IG at the Department of Defense.

205

million’.199

Reflecting on this underestimation, a former senior intelligence official noted that

‘it was just far more difficult than anyone anticipated’.200

Subsequently, the Baltimore Sun

published a series of articles about NSA mismanagement, fraud and waste.201

These articles

raised the issue at a new level and eventually, Trailblazer was terminated in 2007202

without

fulfilling its objectives and ‘after an expenditure of $1.2 billion’.203

Overall, the relatively

constant spotlight that intelligence managers and Congress have kept on intelligence

acquisition programmes did not prevent the persistence of problems.

Human Rights, detention and interrogation

The involvement of intelligence contractors in human rights abuses at Abu Ghraib has been

the most widely publicised incident involving intelligence contractors in the twenty-first

century. On 28 April 2004, the CBS network programme 60 Minutes II exposed the torture

scandal of the Abu Ghraib prison.204

Although public interest groups such as Amnesty

International and Human Rights Watch and the news media had already highlighted the

mistreatment of detainees, it is the 60 Minutes II story and its shocking photographs that

raised the affair to an international level, triggering a worldwide outcry.205

In the US, the

story generated a sustained series of reactions from the entire population of intelligence

accountability holders. Among all these reactions, a lesser, yet significant, part focused on the

199

US Senate, Select Committee on Intelligence, Nomination of Lieutenant General Michael V. Hayden, pp. 21,

69-71. 200

Former Senior Intelligence Official A, interview with author. 201

Gorman, ‘System Error’, A1; Gorman, ‘Computer ills hinder NSA’; Siobhan Gorman, ‘NSA rejected system

that sifted phone data legally’, Baltimore Sun, 18 May 2006 <http://articles.baltimoresun.com/2006-05-

18/news/0605180094_1_surveillance-national-security-agency-well-informed> (accessed 28 February 2012). 202

Mayer, ‘The Secret Sharer’. 203

Marvin C. Ott, Statement before the Subcommittee on Oversight of Government Management, the Federal

Workforce, and the District of Columbia, US Senate Committee on Homeland Security and Governmental

Affairs, 110th

Congress, 2nd

sess., 29 February 2008, <http://www.fas.org/irp/congress/2008_hr/022908ott.pdf>

(accessed 20 February 2012). 204

Video: CBS Network, 60 Minutes II. Abuse at Abu Ghraib, 28 April 2004, New York. More details are

available in the Peabody Awards Collection Archives Record. See: Website of the Peabody Awards Collection

Archives Record, <http://dbs.galib.uga.edu/cgi-

bin/ultimate.cgi?dbs=parc&userid=galileo&action=search&_cc=1> (accessed 21 February 2012). For

subsequent reporting, see: Seymour Hersh, ‘Torture at Abu Ghraib’, New Yorker, 10 May 2004

<http://www.newyorker.com/archive/2004/05/10/040510fa_fact?currentPage=all> (accessed 18 February 2012). 205

For media reports, see for example: Dana Priest and Barton Gellman, ‘U.S. Decries Abuse but Defends

Interrogations’, 26 December 2002, A1. For a detailed analysis of early and later media reactions to the Abu

Ghraib abuses, see: Sherry Ricchiardi, ‘Missed Signals: Why Did It Take So Long for the News Media to Break

the Story of Prisoner Abuse at Abu Ghraib?’, American Journalism Review 26/4 (2004)

<http://www.ajr.org/article.asp?id=3716> (accessed 22 February 2012); Kari Andén-Papadopoulos, ‘The Abu

Ghraib Torture Photograph. New frames, visual culture, and the power of images’, Journalism 9/1 (2008) pp. 5-

30.

206

involvement of contractors in the abuses. The troubling involvement of contractors in

detainee abuses was picked up by American broadsheet media such as the Washington Post

and the New York Times and also figured prominently in foreign media.206

On the domestic

front, public interest groups such as the Project on Government Oversight used the media to

voice their concern, sometimes over very specific issues such as the type of contract used for

translation services at Abu Ghraib.207

The issue of possible prisoner abuse was not new to the US Army when it became

public. In January 2004, Major General Antonio Taguba (US Army) was directed to

investigate the 800th Military Police Brigade’s detention and internment operations with a

specific focus on allegations of maltreatment at the Abu Ghraib prison208

and according to his

report at least two CACI contractors were involved in the abuses.209

A former legal counsel

for the intelligence community during the presidency of George W. Bush noted that the

involvement of contractors in the Abu Ghraib scandal was probably a turning point in terms

of public awareness.210

A former staffer at the Senate Armed Service Committee (SASC)

remembered that the involvement of contractors in the scandal generated discussions about

inherently governmental responsibilities211

and following the public outbreak of the scandal,

representatives sent clear calls for action.212

The SASC convened a series of hearings on

allegations of mistreatment of Iraqi prisoners where senior officials of the Department of

Defense testified. Senators used this occasion to pick up on the use of contractors. For

example, Senator Warner (R-VA) used a hearing to ask senior DOD officials:

How is it in our nation's interest to have civilian contractors, rather than military

personnel, performing vital national security functions, such as prisoner

interrogations, in a war zone? When soldiers break the law, or fail to follow

orders, commanders can hold them accountable for their misconduct. Military

commanders don't have the same authority over civilian contractors.

206

Ariana Eunjung Cha and Renae Merle, ‘Line Increasingly Blurred Between Soldiers and Civilian

Contractors’, Washington Post, 13 May 2004, A1; Joshua Chaffin, ‘contract Interrogators Hired to Avoid

Supervision’, Financial Times, 21 May 2004, A9; Hersh, ‘Torture At Abu Ghraib’; Julian Borger, ‘US military

in torture scandal: Use of private contractors in Iraqi jail interrogations highlighted by inquiry into abuse of

prisoners’, Guardian, 30 April 2004, A1. 207

Danielle Brian (Project on Government Oversight), cited in Ellen McCarthy, ‘CACI Contract: From Supplies

to Interrogation’, Washington Post, 17 May 2004, E01. 208

Antonio M. Taguba, Article 15-6 Investigation of the 800th

Military Police Brigade, 12 March 2004, p.6. 209

Taguba, Article 15-6 Investigation of the 800th

Military Police Brigade, p.48. 210

Former Senior Intelligence Official B, interview with author. 211

Former Intelligence Official A, interview with author. 212

Rep. Henry A. Waxman (D-CA), Letter to The Honorable Tom Davis, Chairman, Committee on Government

Reform, US House of Representatives, 4 May 2004, <http://oversight-

archive.waxman.house.gov/documents/20040607093858-20170.pdf> (accessed 22 February 2012). See also:

Charles Babington and Helen Dewar, ‘Lawmakers Demand Answers On Abuses in Military-Run Jails’,

Washington Post, 6 May 2004, A12.

207

Furthermore, Senator Akaka (D-HI) wondered ‘what are the roles of the private contractors

at this and other detention facilities in Iraq and Afghanistan? And who monitors and

supervises these contracted employees?’ In his answer, Secretary of Defense Rumsfeld was

keen to point out that civilian contractors are ‘responsible to military intelligence who hire

them, and have the responsibility for supervising them’.213

According to an article from the

Washington Post, Representative Janice Schakowsky (D-IL) ‘asked President Bush to

suspend the prison contracts until investigations are complete’. The congresswoman further

wondered whether contractors were ‘taking orders from their CEOs and shareholders and

then telling our soldiers what to do’.214

In the following months, executive and legislative

branch investigations into detentions in Afghanistan and Iraq multiplied.215

Some of them

clearly pointed at issues with the government’s procurement process.216

The Fay report

found that civilian contractors had ‘some degree of responsibility or complicity in the abuses

that occurred at Abu Ghraib’, and pointed out at ‘there was no credible exercise of

appropriate oversight of contract performance at Abu Ghraib’.217

Nevertheless, while

soldiers were convicted for detainee abuses at Abu Ghraib, so far none of the contractors

213

The transcript for this hearing is available on the website of the Washington Post: ‘Rumsfeld Testifies Before

Senate Armed Services Committee’, 7 May 2007, <http://www.washingtonpost.com/wp-dyn/articles/A8575-

2004May7.html> (accessed 21 January 2012). The Committee held subsequent hearings on 11 and 19 May

2004. The transcript for the 11 May hearing is available on the website of the Washington Post: ‘Transcript:

Taguba, Cambone on Abu Ghraib Report’, <http://www.washingtonpost.com/wp-dyn/articles/A17812-

2004May11.html> (accessed 22 February 2012). For the transcript of the 19 May hearing, see: US Senate,

Armed Services Committee, Hearing Transcript, ‘Abizaid, Sanchez, Miller, Warren on Iraq Prisoner Abuse’, 19

May 2004 , <http://www.scvhistory.com/scvhistory/signal/iraq/sasc051904.htm> (accessed 22 February 2012). 214

Cha and Merle, ‘Line Increasingly Blurred Between Soldiers and Civilian Contractors’. The article is also

available on the website of Representative Schakowsky

<http://schakowsky.house.gov/index.php?option=com_content&task=view&id=2017&Itemid=17> (accessed 24

January 2012). 215

For investigations carried out by the legislative branch, see: Jennifer K. Elsea, ‘U.S. treatment of Prisoners in

Iraq: Selected Legal Issues’, Congressional Research Service Report for Congress, 24 May 2004. Government

Accountability Office, Interagency Contracting, p.8. 216

Department of the Interior, Memorandum from Earl E. Devaney to Assistant Secretary for Policy,

Management and Budget, pp. 1-2. Devaney found that the Department of the Interior contract personnel had

misused GSA’s schedules. See also: Department of the Army, Detainee Operations Inspection, p.87. This report

found that contract interrogators’ lack of training contributed to detainee abuse. For more on the involvement of

the Department of the Interior contract office in the Department of Defense’s outsourcing of interrogation, see:

Government Accountability Office, Interagency Contracting, pp. 1-2. 217

Department of Defense, AR 15-6 Investigation of the Abu Ghraib Detention Facility, pp. 18, 33, 49-50, 52.

For similar conclusion, see: Department of Defense, Independent Panel to review DoD Detention Operations,

Final Report (also called the Schlesinger panel), 24 August 2004, p.69.

208

who were involved have been criminally prosecuted218

and the reasons for this situation

remain unclear. A DOD report found that, since ‘some employees at Abu Ghraib were not

DoD contractor employees’, criminal prosecution under the MEJA ‘may not’ be possible.219

Laura Dickinson has convincingly pointed out the lack of political willingness and noted

that ‘the Bush administration was reluctant even to characterize abuses committed at Abu

Ghraib as torture or war crimes’ and was ‘therefore, not surprisingly, reluctant to initiate

prosecutions of contractors implicated in the abuse.’220

In sum, these abuses significantly

intensified the executive, judicial, legislative and societal scrutiny of intelligence contractors

even though the participation of private contractors in the abuses was not a necessary

condition for them to occur.

Civil Liberties

The debate on the expansion of domestic surveillance in the aftermath of the 9/11 attacks was

vivid and focused more on the role of the government than the private sector. The New York

Times published in 2002 an article on the Information Awareness Office, a part of the

Department of Defense and described this office’s contact with Silicon Valley researchers

and the development of ‘advanced surveillance and data-mining techniques’ that ‘raised new

concerns among civil liberties groups in the United States’.221

Despite DOD’s effort to

establish oversight boards for this specific programme, media continued to voice their

concern.222

The Electronic Privacy Information Center (EPIC), a public interest group,

warned that the Total Information Awareness System had hired ‘at least eight private

companies’ to help gathering and analysing vast arrays of information on American

218

Pfc. Lyndie R. England, for example, was sentenced to three years in prison and given a dishonourable

discharge by the Army. See: Josh White, ‘Reservist Sentenced to 3 Years for Abu Ghraib Abuse’, Washington

Post, 28 September 2005, A12. Further details are available on Globalsecurity, ‘Abu Ghurayb Prison Prisoner

Abuse’, <http://www.globalsecurity.org/intell/world/iraq/abu-ghurayb-chronology.htm> (accessed 22 February

2012). 219

Department of Defense, AR 15-6 Investigation of the Abu Ghraib Detention Facility, p.50. 220

Dickinson, Outsourcing War and Peace, pp. 66-7. 221

John Markoff, ‘Chief Takes Over at Agency To Thwart Attacks on U.S.’, New York Times, 13 February

2002, p.27, A1. 222

Department of Defense, ‘TOTAL INFORMATION AWARENESS (TIA) UPDATE’, Press Release No.060-

03, 7 February 2003. For evidence media concern, see: John Markoff, ‘THREATS AND RESPONSES:

INTELLIGENCE; Pentagon Plans a Computer System That Would Peek at Personal Data of Americans’, New

York Times, 9 November 2002, p.12, A1; Editor, ‘Total Information Awareness’, Washington Post, 16

November 2002, A20; John Markoff and John Schwartz, ‘TECHNOLOGY; Many Tools Of Big Brother Are

Now Up And Running’, New York Times, 23 December 2002, p.3, C2.

209

citizens.223

The programme has triggered congressional interest and Senator Charles E.

Grassley (R-IA) sent a letter to the Department of Defense IG, asking a review of the

programme.224

Senator Feingold (D-WI) even introduced a bill ‘to impose a moratorium on

the implementation of data-mining under the Total Information Awareness program’ and ask

a report on these data-mining activities.225

The DOD provided this report and restated its

commitment to civil liberties.226

However, Congress prohibited further funding of the

programme in the Defense Appropriations Act for FY 2004.227

Subsequently, public interest

groups remained wary of the damage public-private intelligence ‘partnerships’ can cause to

civil liberties and the American Civil Liberties Union (ACLU) released a report decrying the

growth of a new ‘surveillance-industrial complex’.228

These apprehensions were reinforced by one of the biggest public scandals the US

intelligence community faced during the presidency of George W. Bush. On 16 December

2005, the New York Times revealed that President Bush had authorised the NSA to monitor

telephone conversations and e-mails travelling to or from the USA, which could have

involved US persons, without court-approved warrants.229

A few months later, USA Today

reported that the NSA had been ‘secretly collecting the phone call records of tens of millions

of Americans’.230

According to the same article, three telecommunication companies were

‘working under contract with the NSA’.231

Government releases have confirmed that,

following the 9/11 attacks, the administration of George W. Bush expanded the intelligence

community’s surveillance activities, intercepting ‘the content of communications into and out

of the United States where there was a reasonable basis to conclude that one party to the

223

Adam Mayle and Alex Knott (Center for Public Integrity), ‘Outsourcing Big Brother: Office of Total

Information Awareness Relies on Private Sector to Track Americans’, 17 December 2002,

<http://fidonet.ozzmosis.com/echomail.php/edge_online/9704b94534dfb3fd.html > (accessed 2 March 2012). 224

Senator Charles E. Grassley (R-IA), Letter to The Honorable Joseph E. Schmitz, Inspector General,

Department of Defense, <http://www.fas.org/sgp/news/2002/11/gr112202.html> (accessed 23 February 2012).

See also: Senator Ron Wyden (D-OR), ‘Office of Total Information Awareness’, Congressional Record 149/7,

15 January 2003, pp. S319-S320. 225

US Senate, S.188 - Data-Mining Moratorium Act of 2003, 108th

Congress, 1st sess., 16 January 2003.

226 Department of Defense, Report to Congress Regarding the Terrorism Information Awareness Program,

Executive Summary, 20 May 2003, p.3, <http://www.information-retrieval.info/docs/tia-exec-

summ_20may2003.pdf> (accessed 23 February 2012). The report does not mention the role of the private

sector. 227

US Congress, Pub. Law 108-87, Department of Defense Appropriations Act for Fiscal Year 2004, 108th

Congress, 2nd

sess., 30 September 2003, section 8131. 228

Jay Stanley, ‘The Surveillance-Industrial Complex: How the American Government is Conscripting

Businesses and Individuals in the Construction of a Surveillance Society’, ACLU report, 2004. 229

James Risen and Eric Lichtblau, ‘Bush Let U.S. spy on Callers Without Courts’, New York Times, 16

December 2005, A1. Following a request by the administration, the New York Times accepted to keep the story

in its drawers for a year. 230

Leslie Cauley, ‘NSA Has Massive Database of Americans’ Phone Calls’, USA Today, 11 May 2006, p.1A. 231

Ibid.

210

communication was a member of al-Qa'ida or related terrorist organizations’.232

Inevitably,

this expansion involved the participation of telecommunication companies such as AT&T,

Bell South and Verizon, which provided access to their clients’ information.233

With

hindsight, Jon Michaels, a legal scholar, made a distinction between two programmes. On the

one hand, the call-data programme was ‘an arrangement whereby telecommunications

companies agreed to transfer vast amounts of telephone and Internet information, even of

purely domestic telephone calls and emails, to the NSA’. Michaels remarked that ‘the

program purportedly has provided only what is known as metadata or envelope information,

meaning names, lists of calls and emails placed and received, and call duration’. On the other

hand, the terrorist surveillance programme ‘gave the NSA access to the content of

international communications’.234

Most public reactions to this controversy focused on threats to civil liberties rather

than the involvement of the private sector. The expansion of government surveillance was

particularly controversial because the eavesdropping programme seemed to compromise the

Fourth Amendment right of US persons, which guards against ‘unreasonable searches and

seizures’. In particular, the administration did not acquire warrants from the Foreign

Intelligence Surveillance Court (FISC) judges. This seemed to contradict the Foreign

Intelligence Surveillance Act (FISA) of 1978 which requires intelligence agencies to acquire

a warrant from the FISC judge before conducting electronic surveillance targeting

communications in which US persons are involved.235

Moreover, some commentators

considered that, in the case of the call-data programme, private companies could have

circumvented the Communications Act of 1934, which sets privacy requirements for

telecommunications carriers.236

From the perspective of accountability channels, the

executive branch briefed a limited number of representatives on the programme237

and as

232

Offices of Inspectors General of the Department of Defense, Department of Justice, Central Intelligence

Agency, National Security Agency, Office of the Director of National Intelligence, (U) Unclassified Report on

the President’s Surveillance Program, Report No.2009-0013-AS, 10 July 2009, pp. 1, 37; The White House,

Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director

for National Intelligence, 19 December 2005, <http://georgewbush-

whitehouse.archives.gov/news/releases/2005/12/print/20051219-1.html> (accessed 10 October 2012). 233

See: Cauley, ‘NSA Has Massive Database of Americans’ Phone Calls’. 234

Michaels, ‘All the President’s Spies’, p.912. For more details on the programme, see: James Risen, State of

War (New York: Free Press 2006) pp. 39-60. 235

US Congress, Pub. Law 95-511, Foreign Intelligence Surveillance Act, 95th

Congress, 2nd

sess., 25 October

1978. 236

Cauley, ‘NSA has massive database of Americans’ phone calls’. See also: US Congress, Pub. Law 104-104,

Communications Act of 1934: as amended by Telecom Act, 104th

Congress, 2nd

sess., 8 February 1996. 237

For more on the constraints the administration has put on these briefings, see: Alfred Cumming, ‘Statutory

Procedures Under Which Congress Is To Be Informed of U.S. Intelligence Activities, Including Covert

Actions’, Congressional Research Service Report for Congress, 18 January 2006, pp. 7-9.

211

early as 11 October 2001, Rep. Nancy Pelosi (D-CA), then a member of the HPSCI, sent a

letter to the Director of the NSA to express her concern with his ‘expansive view of [his]

authorities with respect to the conduct of electronic surveillance under the Foreign

Intelligence Surveillance Act’. In her letter, Pelosi further remarked ‘for several reasons it has

not been possible to get answers to [her] questions’.238

Similarly, although he was briefed on

the programme, Senator Rockefeller (D-WV) later complained that his ability to question it

was limited by security regulations and the use of secret briefing by the administration. In

order to express his concerns, he thus wrote a letter to Vice President Cheney explaining that

‘without more information and the ability to draw on any independent legal or technical

expertise, I simply cannot satisfy lingering concerns raised by the briefing we received’.239

Media revelations on the programme raised the stakes and changed the attitudes of

various stakeholders.240

According to a Newsweek poll, ‘the revelation was another blow to

Bush, whose approval rating … dipped to 35 percent, his record low in the survey’.241

The

administration reacted by providing legal explanations to make the case for the warrantless

electronic surveillance programme.242

A series of public interest groups challenged these

explanations, and sued the government and the telecommunication companies involved in the

238

Rep. Nancy Pelosi (D-CA), Letter to Lt. Gen. Michael V. Hayden, Director, National Security Agency,

October 11, 2001. Top Secret <http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB178/surv22a.pdf> (accessed

23 February 2012). 239

Senator John D. Rockefeller (D-WV), Letter to Vice-President Cheney, 17 July 2003

<http://www.fas.org/irp/news/2005/12/rock121905.pdf> (accessed 22 February 2012). 240

In addition to the New York Times and USA Today articles, see: Seymour M. Hersh, ‘Listening In’, New

Yorker, 29 May 2006, <http://www.newyorker.com/archive/2006/05/29/060529ta_talk_hersh> (accessed 23

February 2012). 241

Hosenball and Thomas, ‘Hold the Phone; Big Brother knows whom you call’, p.23. 242

See for example: White House, Office of the Press Secretary, President’s Radio Address, 17 December 2005

<http://georgewbush-whitehouse.archives.gov/news/releases/2005/12/20051217.html> (accessed 23 February

2012); Office of the Director of National Intelligence, Press Briefing by Attorney General Alberto Gonzales and

General Michael V. Hayden, Principal Deputy Director of National Intelligence, 19 December 2005

<http://www.fas.org/irp/news/2005/12/ag121905.html> (accessed 18 February 2012); William E. Moschella

(Assistant Attorney General), Letter to Senator Pat Roberts (R-KS), Senator John D. Rockefeller IV (D-WV),

Rep. Peter Hoekstra (R-MI), and Rep. Jane Harman (D-CA), 22 December 2005

<http://www.fas.org/irp/agency/doj/fisa/doj122205.pdf> (accessed 18 February 2012); White House, Setting the

Record Straight: Critics Launch Attacks Against Program to Detect and Prevent Terrorist Attacks, 4 January

2006 <http://georgewbush-whitehouse.archives.gov/news/releases/2006/01/20060104-7.html> (accessed 23

February 2012); Department of Justice, Legal Authorities Supporting the Activities of the National Security

Agency Described by the President, 19 January 2006

<http://www.justice.gov/opa/whitepaperonnsalegalauthorities.pdf> (accessed 24 February 2012).

212

warrantless surveillance programme243

and a bipartisan group of senators requested that the

SSCI and the Committee on the Judiciary ‘jointly undertake an inquiry into the fact and law

surrounding these allegations’.244

Senators Patrick Leahy (D-VT) and Ted Kennedy (D-MA)

further introduced a resolution stating that ‘the Authorization for Use of Military Force does

not authorize warrantless domestic surveillance of United States citizens’.245

However, the

resolution was never passed. The Democratic Party’s gains at the 2006 mid-term elections

allowed it to strengthen its opposition to the programme. According to Tara Sugiyama and

Marisa Perry, following the Democrats’ efforts, ‘the administration began cooperating on a

limited basis’. For example, they point out that the Office of Personnel Responsibility (OPR)

at the Department of Justice ‘started a formal inquiry into the internal dissension over the

legal foundation of the program within the department’.246

However, the OPR was not able to

carry out its investigation since it was ‘denied security clearances for access to information

about the N.S.A. program’.247

In 2007, the administration eventually decided to let the courts

review the surveillance programme248

and according to Kathleen Clark, this decision may

have been caused by a ‘less friendly’ Democratic-controlled Congress and the pressure from

243

US District Court for the Eastern District of Michigan (Southern Division), American Civil Liberties Union

v. National Security Agency/Central Security Service, 17 January 2006

<http://www.aclu.org/images/nsaspying/asset_upload_file137_23491.pdf> (accessed 10 February 2012). See

also: American Civil Liberties Union, ‘Amnesty et al. v. Clapper: FISA Amendments Act Challenge’,

<http://www.aclu.org/national-security/amnesty-et-al-v-clapper> (accessed 27 March 2013); US District Court

for the Northern District of California, Jewel v. NSA, Case No.08-4373 VRW, 18 September 2008,

<https://www.eff.org/cases/jewel> (accessed 27 March 2013) [the case is ongoing]; US District Court for the

Northern District of California, Hepting v. AT&T, Case No.06-1791 VRW, 31 January 2006,

<https://www.eff.org/cases/hepting> (accessed 28 August 2011); US District Court for the Northern District of

California, Shubert et al v. Bush et al, Case No.07-069, 11 May 2007, <https://www.eff.org/cases/shubert-v-

bush> (accessed 27 March 2013) [the case is ongoing]. 244

Senators Dianne Feinstein (D-CA), Carl Levin (D-MI), Chuch Hagel (R-NE), Olympia Snowe(R-ME), Ron

Wyden (D-OR), Letter to Senators Arlen Specter (R-PA) and Patrick Leahy (D-VT), chairman and ranking

member of the Judiciary Committee, and Pat Roberts (R-KS) and John D. Rockefeller IV (D- WV), chairman

and vice chairman of the Select Committee on Intelligence, 19 December 2005

<http://blog.thedemocraticdaily.com/?p=1469> (accessed 22 February 2012). 245

Senator Patrick Leahy (D-VT), S. Res. 350, Expressing the sense of the Senate that Senate Joint Resolution

23 (107th Congress), as adopted by the Senate on September 14, 2001, and subsequently enacted as the

Authorization for Use of Military Force does not authorize warrantless domestic surveillance of United States

citizens, 109th

Congress, 2nd

sess., 20 January 2006. 246

Tara M. Sugiyama and Marisa Perry, ‘The NSA Domestic Surveillance Program: An Analysis of

Congressional Oversight During an Era of One-Party Rule’, University of Michigan Journal of Law Reform 40/1

(2006) p.175. See: Scott Shane and Eric Lichtblau, ‘Justice Department Reviews Role of Its Lawyers in

Spying’, New York Times, 16 February 2006, <http://www.nytimes.com/2006/02/16/politics/16nsa.html>

(accessed 15 October 2011). 247

H. Marshall Jarrett, Office of Professional Responsibility, letter to Representative Maurice D. Hinchey (D-

NY), cited in Scott Shane, ‘With Access Denied, Justice Department Drops Spying Investigation’, New York

Times, 11 May 2006, <http://www.nytimes.com/2006/05/11/washington/11secure.html?_r=0> (accessed 10

October 2011). 248

Eric Lichtblau and David Johnston, ‘Courts to Oversee U.S. Wiretapping in Terror Case’, New York Times,

18 January 2007, A1.

213

telecommunication companies which did not want to take legal risks.249

Ultimately, with the

support of the President,250

Congress passed the FISA Amendments Act of 2008 and gave

immunity from liability to the telecommunication companies which had been collaborating

with the NSA.251

The act also required the NSA programme to be investigated by a series of

IGs252

and, remarkably, the declassified version of the final IG report does not mention the

reliance on the telecommunication companies despite the central role they played in

implementing the programme.253

Conclusion

This chapter found that the conditions for the accountability of public-private intelligence

‘partnerships’ were not entirely fulfilled from 2001 to 2009. First, the political and legal

standards at the basis of any accountability activity were insufficient. Decision-makers

neglected questions of contract management in the aftermath of the 9/11 attacks. This partly

explains why existing legal standards governing the interactions between the IC and the

private sector were loosely applied. Furthermore, the intensification of public-private

interactions raised legitimate concerns about conflicts of interest and the ascendency between

public authority and private interests. Even though these concerns were verified,

wrongdoings in this area were not systematic. Second, key intelligence accountability holders

theoretically have access to all the information they need about public-private intelligence

‘partnerships’. In practice, however, the intelligence community’s reliance on the private

sector has complicated their task. At the societal level, given the amount of media coverage

generated by a series of controversies, the interested public had some awareness of the

troubles concerning public-private intelligence ‘partnerships’. However, key intelligence

accountability holders’ access to relevant private sector information was complicated by

senior executive officials’ relative disinterest in contract management. Third, a number of

249

Kathleen Clarks, ‘The Architecture of Accountability: A Case Study of the Warrantless Surveillance

Program’, Brigham Young University Law Review 2 (2010) p.403. 250

George W. Bush, ‘Remarks on Intelligence Reform Legislation’, Weekly Compilation of Presidential

Documents 44/6, 18 February 2008, p.185. 251

US Congress, Pub. Law 110-261, Foreign Intelligence Surveillance Act of 1978 Amendments Act, 110th

Congress, 2nd

sess., 10 July 2008, title II. 252

US Congress, Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, title III Section 301.

See also: CIA, Inspector General, Semiannual report to the Director, July–December 2008, p.2. 253

The unclassified version of the final report retraces this controversial story, see: Offices of Inspectors

General of the Department of Defense, Department of Justice, Central Intelligence Agency, National Security

Agency, Office of the Director of National Intelligence, Unclassified Report on the President’s Surveillance

Program.

214

laws were available to the executive and judicial branches to punish private intelligence

providers when deemed necessary. Nevertheless, the application of available sanctions was

limited by a lack of legal clarity and accountability holders’ lack of political willingness to

apply them. In sum, from 2001 to 2009, the privatisation of intelligence challenged the

intelligence accountability process but key intelligence accountability holders maintained

their ability to access information, refer to some standards to form judgments and sanction

wrongdoings. That is why it is possible to argue that the US government was responsible for

intensifying its reliance on the private sector without taking necessary precautions.

From 2001 onwards, key intelligence accountability holders have reacted to a series

of problems plaguing public-private intelligence ‘partnerships’. Throughout the presidency of

George W. Bush, the IC and Congress were very well aware of some of the problems relating

to public-private intelligence interactions. Procurement fraud, for example, was a recurring

issue on the agenda of the CIA IG, and Congress expressed concern about some serious

deficiencies in the NSA acquisition system. Yet the move towards privatisation was neither

effectively opposed nor carefully controlled and overseen. It corresponded to American

values and perceptions, and more importantly to its material interest in the GWOT. From

2002 onwards a series of public scandals drew increasing attention on some of the most

disturbing problems raised by the intensification of public-private intelligence interactions. In

particular, problems concerned conflicts of interests, efficiency, human rights and civil

liberties. Historically, similar issues have been raised by the activities of governmental

intelligence agencies. In this view, the involvement of the private sector was another

expression of some of the sins that have traditionally been committed by public intelligence

agencies. Considering the intelligence accountability process, it is only after a series of

scandals occurred that accountability holders seriously considered the imperative for change.