Crisis of Command
America’s Broken Civil-Military Relationship Imperils National Security
When Joe Biden is sworn in as president in January, he will inherit a pair of challenges no one would envy: a troubling national security landscape and a broken intelligence community. No doubt his White House will rush to put out the obvious fires, whether the threat is rising tension between Iran and Israel or the imminent expiration of the New START nuclear treaty. But the second, slow-burning crisis is in many ways the more dangerous one. If Biden wants his presidency to succeed in foreign policy, he must restore integrity to the U.S. national security process so that the crises of the day don’t crowd out sound strategy based on sound intelligence. Before decision-makers act, they need to know as much as possible about the intentions and capabilities of adversaries as well as partners.
It has never been easy to make policy without good intelligence; today, the intelligence function is as indispensable as it has ever been. Extraordinary risks of miscalculation lurk just an inch to the left or the right of each policy choice. But U.S. spy agencies are mired in the worst crisis of trust and accountability the nation has seen since the Iraq war. The Trump administration has politicized the intelligence process in ways large and small, undermining the integrity of national security decision-making and the public’s faith in it. How many times in the last four years have Americans wondered if their country was minutes away from war with Iran, trying to read tea leaves to divine the regime’s intent?
The damage can be fixed. Repairing it will take commitment and attention, commodities in short supply in any administration (not to mention on Capitol Hill). What the new White House will need is a well-defined agenda from the very start—a clear sense of the areas in which the most damage has been done as well as the places where sunlight will need to be let in. Only then can Americans and the rest of the world regain their confidence in the U.S. intelligence community.
From the outset, the tenor will be set by the team that takes the reins. Although it was not the first White House to try to staff the intelligence community with loyalists, Trump’s went to particularly aggressive lengths to do so. The administration jettisoned career public servants, installed nominees who wouldn’t survive an encounter with the confirmation process by placing them in acting roles, and attacked the independence of watchdogs and advisory bodies. (That included a purge of the Defense Policy Board, which swept me and others off the secretary of defense’s bipartisan advisory committee.) The effect has been to seed the intelligence process with partisan considerations. Reports that risked angering senior officials were softened, skewed, or quashed; whistle-blowing was chilled by the threat of retaliation. Un- or under-vetted intelligence, meanwhile, circumvented the rigors of the traditional analysis process by traveling from one political appointee to another. Think, for instance, of the false claims that Ukraine had interfered in the 2016 election: those rumors spread to and through the White House, even as career intelligence officials briefed Congress on the reality that Russia had spearheaded that disinformation campaign.
Naturally, rolling back these changes will start with naming qualified nominees for speedy confirmation. Elissa Slotkin, once a CIA analyst and now a Democratic U.S. Representative from Michigan, has suggested that the Biden administration should consider “a targeted callback” of civil servants who left the intelligence community in the last four years––the personnel with the deepest commitment to traditional norms. That would be a smart move, but it will take even deeper changes to the way the U.S. government hires and fires its spies to fully restore their independence.
Biden can start the work with a stroke of his pen. His pledge to never fire an inspector general is welcome—but it would read even better as an executive order, one that set out in detail his view that watchdogs can be removed only for good cause and defined the narrow circumstances that would satisfy that test. Biden could also order the Department of Justice to withdraw the controversial opinion on intelligence-community whistle-blowing that the department’s Office of Legal Counsel issued in 2019, an opinion that effectively gives the director of national intelligence license to prevent evidence of executive wrongdoing from going public.
If Biden wants his presidency to succeed, he must restore integrity to the U.S. national security process.
On other issues, however, Biden will need Congress’s help tying his own hands. The clearest target for reform is the Federal Vacancies Reform Act, a 1998 law concerning federal appointments that has given the executive branch far too much power to evade congressional oversight. The law allows the president to shuffle officials around the executive branch in an “acting” capacity until the White House gets its way, as when it installed Richard Grenell, a staunch partisan who was then U.S. ambassador to Germany, as acting director of national intelligence in February 2020. That musical-chairs effort was both an ill-considered attempt to evade the law and a blow to the effectiveness of the intelligence agencies. Loyalists brought in for short, politically motivated stints will never command respect from the workforce. But lawmakers can limit such gamesmanship—and defend the Senate’s vital role in vetting nominees––by making three critical tweaks to the statute.
First, Congress should amend the act to prevent the president from naming acting officials when an office opens up because the president just fired the officer. When the White House pushes out a seasoned professional, it shouldn’t be rewarded with the freedom to swap in a partisan hack. Second, as Jack Goldsmith, a legal scholar and former assistant attorney general for the Office of Legal Counsel, has urged, Congress should limit the pool of officials the president can draw from when a vacancy arises. Watchdogs should be replaced by other watchdogs, not by political appointees from some far-flung part of the executive branch. Finally, Congress should clarify––and sharply cap––the length of time acting officials can validly serve. Grenell’s three-month tenure as director of national intelligence was a disaster. He made clear at the outset that his job was to clean house, not to speak truth to power or ensure the quality of intelligence produced. And although it ended when his replacement, John Ratcliffe, was confirmed by the Senate, the administration likely could have played games to keep Grenell in place indefinitely.
When it comes to politicization in the intelligence community, there is no substitute for a genuine presidential commitment to long-held norms. Biden’s picks for key roles in national security and intelligence offer promising signs that he understands that he will benefit from those who are not afraid to disagree with their superiors. But like his predecessors, Biden will face the temptation to believe the intelligence he wants to believe and elevate the voices he wants to hear. By making these concrete commitments to the professionalism of the intelligence enterprise, the president-elect can help tie himself to the mast.
Changing the way the intelligence community is staffed will only go so far in rebuilding public trust. Americans are entitled to have confidence that the people nominated to key leadership roles will continue to perform their duties with the highest professional standards after they vanish behind closed doors. Earning that faith again will mean tolerating a much greater degree of transparency than the spy agencies have become accustomed to.
Too often over the last several years, the intelligence community’s systems for secret keeping have been wielded as political weapons. The Trump White House manipulated the sprawling system of prepublication review—designed to prevent national security officials from divulging classified information—in an effort to suppress unflattering insights. In June 2020, the administration tried to block the publication of the memoir written by John Bolton, Trump’s former national security adviser, even though career officials had concluded that it contained no classified information. Other critics of the president—including John Brennan, a former CIA director, and James Clapper, a former director of national intelligence—have been threatened with the loss of their security clearances. Secrets have also been opportunistically declassified when necessary for some self-interested purpose, as when Grenell revealed sensitive records to advance the president’s conspiracy theory that in late 2016, the Obama administration improperly investigated Trump’s incoming national security adviser, Michael Flynn.
Too often, the intelligence community’s systems have been wielded as political weapons.
These powers must be put beyond partisan reach. Biden could issue an executive order requiring the national security agencies to standardize, narrow, and clarify their classification regimes. Congress, for its part, should enshrine those limits in legislation to prevent backsliding. Lawmakers have sometimes engaged the problem of too much secret keeping; for instance, I introduced and President Barack Obama signed the Reducing Over-Classification Act of 2010, which required the Department of Homeland Security to develop a strategy for cutting back its use of redaction. But too often, Capitol Hill has been happy to leave the White House to its own devices. Congress should create new safeguards to ensure that decisions about classification and clearance must be based solely on protecting sources and methods. In 2019, Senator Mark Warner, a Virginia Democrat, and Senator Susan Collins, a Maine Republican, proposed a bill that would do just that, although its prospects remain unclear. Biden should embrace it. Bipartisan reforms such as these would help restore confidence that the secrets the government keeps are kept for good reason.
The president-elect must also address the intelligence agencies’ excessive secrecy about the fundamental question of how much they know about American citizens. The lack of clarity has prevented Americans from having an informed national conversation about intelligence priorities and has fed conspiratorial thinking. Thanks to amendments to the Foreign Intelligence Surveillance Act, for instance, the number of “targets” pursued by Internet surveillance programs has been made public (204,968 as of 2019, according to a report issued by the director of national intelligence), but how many Americans’ communications have been swept up incidentally has not been. Similarly, although the collection of a range of business records under Section 215 of the Patriot Act should have ground to a halt when the authorizing legislation expired this year, it is not clear whether it actually did—or whether the executive branch continued this program on the basis of a controversial claim that the president does not need congressional authorization. A bipartisan deal to renew and reform those authorities was within reach, and now it should be seized. But if Congress won’t act, the public deserves to know that the executive isn’t continuing what Congress has let lapse.
On each of these fronts, there should be greater transparency in the next administration. Biden should instruct his intelligence officials to comply promptly with outstanding legitimate requests for information from Congress. He should take steps to demystify the intelligence collection that takes place outside Congress’s statutory authorizations via Executive Order 12333, a poorly understood order that governs U.S. surveillance activities overseas. And he must work with Congress on bipartisan reforms to the Foreign Intelligence Surveillance Act, especially in light of the flaws that an inspector general’s report revealed in the process for obtaining warrants for surveillance. Those efforts to improve the statute foundered abruptly in May 2020, when the Justice Department announced its opposition to modest reforms. One proposed amendment was to grant a greater role for a civil liberties advocate, who would appear in important cases before the Foreign Intelligence Surveillance Court, a common-sense idea that would protect Americans’ constitutional rights.
Reform is never glamorous. The derring-do of actual spying, high-stakes international diplomacy, decisions about targeting drones and dispatching aircraft carriers—all have a far easier time attracting a president’s attention. When he enters the Oval Office, Biden will face a thousand other demands, few of them as dry as the hard work of transparency and accountability. But sound policy depends on sound intelligence. The new administration should not skip straight to the task of making tough choices, leaping past the work of gathering the information it needs to be sure that its choices are the right ones.
Gathering that information will take a professional intelligence community, backed by the confidence of the public and confident, itself, in the support of a responsible president. Those principles have gathered dust for the last four years. If Biden hopes to succeed, he should restore them to pride of place.
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