Making Sense Of Investigations Into Intelligence Reports Regarding Efforts Against ISIS Commentary
Making Sense Of Investigations Into Intelligence Reports Regarding Efforts Against ISIS
Edited by:

JURIST Guest Columnist Jason Coats of the US Naval War College discusses the investigations into the legitimacy of reports concerning ISIS…

On December 11, the Chairmen of three House of Representatives committees—the Permanent Select Committee on Intelligence (HPSCI), the Armed Services Committee and Appropriations Committee’s Defense Subcommittee (APCDS)—announced the establishment of a joint task force to investigate allegations that senior members of the US Central Command (CENTCOM) manipulated intelligence products prior to providing them to national policy makers. The task force is additionally inquiring into whether the allegations reflect a greater systemic problem in CENTCOM’s intelligence operations.

This is the most recent reaction to claims that surfaced in August regarding tampering with intelligence assessments. The committees have previously looked into the matter on their own accord and the Department of Defense Inspector General (DoD IG) is likewise undertaking an investigation. The allegations and subsequent investigations can be confusing given the Intelligence Community’s (IC) complex organizational structure and its assorted oversight mechanisms. Nevertheless the CENTCOM situation usefully illustrates how allegations of misconduct are addressed, particularly when involving DoD personnel.

This contribution to JURIST opens with a brief overview of reactions to the CENTCOM accusations. It then describes the organization of the IC and its oversight mechanisms. Lastly I suggest a number of outcomes that could result should any of the investigations uncover wrongdoing.

The NYT reported in late August that the DoD IG had launched an investigation into allegations that CENTCOM military officials had skewed intelligence assessments regarding the campaign against the Islamic State (ISIS or ISIL) in an effort to paint a rosier picture than was merited. The following month The Daily Beast asserted that CENTCOM higher-ups edited intelligence reports to support the administration’s claim that the US is winning the battle against ISIS and al Nusra, al Qaeda’s affiliate in Syria. A civilian Defense Intelligence Agency analyst working within CENTCOM levied, at least in part, the allegations.

The number and respective scope of investigations have evolved since the accusations surfaced. The DoD IG appears to be limiting its inquiry to the intelligence assessments regarding ISIS in Iraq in Syria. Prior to announcement of the joint task force, the congressional committees with IC oversight responsibilities have demonstrated varying degrees of deference to the DoD IG review. Although the Senate Intelligence Committee (SIC) conducted a few interviews early on its chairman has stated that the DoD review should be allowed to play out (SIC is not included in the joint task force and its deference will presumably continue). The HPSCI staff prior to formation of the joint task force combed through years of CENTCOM intelligence reports and compared them to non-DoD reports such as those generated by the CIA. Additionally the HPSCI review included [PDF] intelligence reports regarding Afghanistan and other areas under CENTCOM’s purview. The House Armed Service Committee also initiated its own inquiry. The joint task force combines the efforts of the House committees and will presumably maintain a broad scope of review across all of CENTCOM’s area of responsibility.

Since its genesis in the National Security Act of 1947 the IC has gradually developed into sixteen Executive entity membership. It is headed by the Director of National Intelligence (DNI). The DoD’s membership includes, among others, the Service-component (i.e., Army, Air Force, Navy, and Marine Corps) intelligence assets and the Defense Intelligence Agency (DIA). The DIA was established in 1961 by then-Secretary of Defense Robert McNamara to deal with the issue of biased intelligence reporting by the individual services’ intelligence offices. Prior to then military intelligence assessments often conflicted, frequently reflecting Service interests. The directive establishing the DIA tasked it with producing all DoD intelligence estimates and providing the DoD input to the National Intelligence Estimates. By making the DIA directly reportable to the secretary of defense the intent was to eliminate service bias and inaccuracy from intelligence assessments meant to support policy making. Today the intelligence office at a DoD combatant command, such as CENTCOM, is composed of personnel from multiple intelligence organizations, both DoD and non-DoD. They share information and support each other’s activities, but also conduct their own intelligence activities and generate independent products. Because the DIA assets embedded in CENTCOM report directly to the secretary of defense, they should be insulated from any potential CENTCOM influence and bias.

All members of the IC are subject to, broadly speaking, the same oversight and regulation. For the most part the Executive Branch exercises oversight through Executive Orders (EO) and directives, while the Legislative Branch does so through statutes, appropriations and hearings. The Office of the DNI’s (ODNI) recent Intelligence Community Directive (ICD) 203 (January 2015) dictates [PDF] five analytic standards that the IC is required to follow, one of which is independence from political consideration. To this end “[a]nalytic judgments must not be influenced by the force of preference for a particular policy.” ICD 203 provides the standards which intelligence agencies including those operating within CENTCOM, are expected to maintain.

To ensure compliance with applicable directives an IG office at most Executive Branch entities serves as an independent and objective body for receiving complaints and conducting investigations, reviews and audits. Congress created the ODNI’s Office of the Inspector General of the Intelligence Community in the National Intelligence Authorization Act of 2010. While the IG is the DNI’s investigative asset it must also notify Congress whenever it determines allegations are credible. Upon receiving the initial accusations involving CENTCOM the ODNI IG informed the appropriate congressional committees and the DoD IG, prompting initiation of the latter’s investigation. The DoD IG’s inquiry is reviewing CENTCOM’s intelligence reporting processes and the conduct of those involved to evaluate compliance with applicable operating procedures, regulations and law.

Congressional oversight of the IC has slowly developed since enactment of the National Security Act of 1947. As my colleague Major Christopher Ford has described the tightening of this oversight has resulted from periods of IC improprieties, two of which are of significant note. The first occurred in the 1970s with public discovery of Army Intelligence collection on American citizens participating in the Vietnam antiwar movement and of CIA involvement in the Watergate scandal. Ad hoc congressional inquiries substantiated these allegations and subsequently motivated establishment of the Senate Select Committee on Intelligence (SSCI) and HPSCI. The second period of significance was discovery of covert intelligence operations in the early 1980s that involved the sale of arms to Iran in order to facilitate the freeing of American hostages that country held and to fund guerillas in Central America (the “Iran-Contra Affair“). In response Congress significantly increased the President’s reporting requirements in advance of certain intelligence operations via the Intelligence Authorization Act for Fiscal Year 1991. Today a number of congressional committees exercise oversight of the IC. These committees utilize hearings to investigate potential misconduct, as well as inform the public of allegations of impropriety. Congress also exercises its power of the purse over the annual intelligence authorization legislation as an additional means of oversight. Because these oversight measures apply to the IC in its entirety, they directly impact CENTCOM intelligence operations.

A number of possibilities exist as to the consequences of the ongoing investigations. IG investigations and records, barring special justification and authorization, may not be used for adverse action (i.e., reprimand or position/employment termination) against the individuals involved. Instead they are generally utilized to amend procedures and improve processes. Adverse action or criminal prosecution must rely upon separate command and/or criminal investigations. Such inquiries may be taking place but no acknowledgement to that effect has been publicly made. Accordingly the most that may be expected from the DoD IG investigation is institutional and procedural reform.

Should the congressional inquiries substantiate improprieties the committees with oversight responsibilities will likely pressure the Executive and DoD to “tighten the reigns” on intelligence operating procedures, as well as remove those senior officials responsible for the behavior. Congress could also mandate greater oversight measures, such as additional reporting requirements, in the next intelligence appropriations legislation. A potential wildcard does exist. Former Secretary of Defense Chuck Hagel recently described the hostility he felt from members of the Obama Administration when he publicly voiced his opinion on the formidability of ISIS. If the congressional investigations discover that intelligence assessment manipulation is somehow attributable to the administration, Congress may respond by imposing oversight measures designed to insulate the IC from administration influence.

Yet the effort to address the CENTCOM incident may also serve as an example of the IC working properly. Although the DIA was established to remove bias and manipulation from intelligence reporting, no system is flawless. In this case suspect conduct in the provision of intelligence assessments was brought to light and investigated on multiple levels. Therefore the incident may well reinforce the sufficiency of IC oversight measures. Whether this will eventuate depends of course, on those actions taken to respond to any misconduct that may be discovered.

Major Jason A. Coats is a US Army Judge Advocate currently assigned as a professor in the Stockton Center for the Study of International Law at the US Naval War College. He has extensive experience serving as a legal advisor to operational and tactical units, both in conventional and special operations forces.

Suggested citation: Jason Coats, Making Sense Of Investigations Into Intelligence Reports Regarding Efforts Against ISIS, JURIST – Academic Commentary, January 8, 2015, http://jurist.org/forum/2015/11/jason-coats-isis-intelligence.php.


This article was prepared for publication by Elizabeth Dennis, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.