Power, today, comes from sharing information, not withholding it.
The United States often supports other nations, multinational forces, and non-state actors in their ongoing armed conflicts and law enforcement operations. Sharing of intelligence, beyond the routine support incident to U.S. participation in combat operations, provides the U.S. Government a means to assist allies, while pursuing its own national security objectives, without a large expenditure of people, equipment, and dollars. However, sharing sensitive, hard-earned, and valuable intelligence information is not without risk, not only to sources and methods, but also to national security, foreign policy objectives, and domestic support. It also raises significant legal questions, particularly when potential recipients have questionable records of adherence to the Law of Armed Conflict (LOAC) and human rights, a flexible relationship with the rule of law, or a culture that places more importance on ends than on means.
On the other hand, intelligence sharing relationships with foreign partners often reap enormous benefits to the United States by bringing foreign partner resources to bear against priority threats, such as terrorist activities or nuclear proliferation. It also enables the United States to leverage external capabilities (e.g., language, cultural, technical, and geographic expertise) to assist the U.S. Intelligence Community (USIC) to collect, process, and analyze intelligence. This helps the United States plug collection gaps, improve the quality of U.S. assessments, and secure budgetary efficiencies. Balancing the gains against the risks, to include legal risks, can be a complex process, with various entities of the U.S. Government having different positions, based on their vantage points and policy objectives.
While this article does not attempt to detail fully the array of reasons to share—or not to share—intelligence, it explores the legal issues implicated when such sharing is intended, or can foreseeably be used, for lethal purposes. Although foreign intelligence sharing arrangements themselves are not normally the subject of public scrutiny, these relationships sometimes reach the light of day, often as the result of unfortunate circumstances. Understanding the potential application of various laws on these sensitive relationships is critical to ensuring that the United States and its agents are able to defend their support, either to Congress, the courts, U.S. citizens, or the international community. After providing an overview of the legal risks associated with this type of assistance, the article details the policy framework that has been constructed to ensure that risks are properly evaluated and, when necessary, measures implemented to promote adherence with these laws and decrease risk of complicity in partner actions.
The extent of U.S. support to others varies widely, from heavy engagement across multiple lines of effort to situations where intelligence sharing is the sole item of value the United States brings to the table. In its unclassified “Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations,” the previous U.S. administration stated that “the United States provides intelligence support to foreign partners engaged in conflicts in which the United States is not participating directly.” One example noted in the report is the support provided to the “Saudi-led military operations against Houthi and Saleh-aligned forces in Yemen.” The report explains that although “U.S. forces are not taking direct military action in Yemen . . . the United States provides certain logistical support (including air-to-air refueling), intelligence sharing, best practices, and other advisory support when requested and appropriate.”
The Kingdom of Saudi Arabia’s campaign in Yemen underlines some of the potential pitfalls of working with and through partners, sometimes far from areas where the U.S. military is involved in large-scale combat operations. In light of allegations that the Saudi-led coalition has conducted indiscriminate and/or unlawful targeting in prosecuting the armed conflict, both media and human rights organizations have highlighted, and sometimes condemned, the intelligence support provided by the United States. On 4 October 2016, the Washington Post noted: “Reservations are growing within the Obama administration about the American military involvement in Saudi Arabia’s air campaign in Yemen, as some lawmakers and human rights groups charge the United States with responsibility for Saudi attacks that have killed many civilians.” Human Rights Watch has been particularly vocal in condemning international support to the Saudi-led coalition. It has publicly called on the United States to “clarify the U.S. role in the armed conflict, including what steps the [United States] has taken to minimize civilian casualties in air operations” and “conduct investigations into any airstrikes for which there is credible evidence that the laws of war may been violated and that the United States may have been a direct participant, either by refueling participating aircraft or providing targeting information, intelligence, or direct support.”
Yemen is only one example of U.S. support to lethal operations through the provision of intelligence. As the terrorist threat posed by organizations like al Qaida and the Islamic State of Iraq and ash-Sham (ISIS) has evolved, and the desire of many in the United States to send troops overseas has decreased, the option of supporting partners through intelligence sharing vice boots-on-the-ground has become increasingly attractive. But the capabilities of these partners vary widely, from their ability to protect and safeguard U.S. intelligence to their processes and procedures to ensure adherence to the LOAC and respect for human rights. Many countries do not come close to the rigorous targeting standards and precision capabilities of the United States.
Working through partners raises the important question of when does a nation truly bear responsibility, as a legal matter, for the actions of others when a lethal operation, relying in some part on U.S. intelligence, either goes awry, causes indiscriminate non-combatant casualties, or is conducted without a lawful basis. Whether the casualties are the result of intentional targeting of an unlawful target, use of an indiscriminate or prohibited weapon, an extrajudicial killing, inexperience, or simple or gross negligence, the United States must be ready to defend its actions—to Congress, the international community, the American public, or the courts. This article does not seek to tread new ground or argue for a new understanding of the law. Rather, it summarizes the various legal sensitivities of sharing potentially lethal intelligence and the processes the U.S. Government has put in place to highlight and address those concerns.
II. Legal Considerations
To reduce the risk of a valid legal claim against the United States or its officials, decision-makers in the Executive Branch focus on two principal issues before authorizing an intelligence sharing arrangement that could have potentially lethal consequences: (1) whether the partner has a legal basis for operations supported by U.S. intelligence; and (2) whether the partner intends to execute its operations lawfully. If either of these prongs fails to pass muster, then the United States or its officials could be at legal risk, at home or abroad. After discussing these prongs, this article will describe the most likely legal pitfalls triggered by these relationships.
A. Valid Legal Basis for Potentially Lethal Operations
A foreign government recipient might have a variety of lawful bases for its lethal operations. For instance, the U.S. partner may be conducting offensive operations in the prosecution of an already ongoing armed conflict, either of an international or non-international nature, or, if outside the context of an armed conflict, the partner’s actions might be justified as an act of national or collective self-defense, execution of a United Nations (U.N.) Security Council authorization, or an exhibition of host nation law enforcement authorities. In explaining the distinction between lawful and unlawful killings, Professor John Yoo, former Deputy Assistant Attorney General at the Office of Legal Counsel, states:
Killing an individual is legal as capital punishment imposed on a convicted first-degree murderer. It is legal when a police officer shoots an attacker armed with a weapon. It is illegal when it is murder, as are any of the hundreds of premeditated homicides that occur in the United States every year. It is illegal when it is assassination, except that killing the enemy in wartime is legal. . . . Killing a foreign head of state in peacetime is an assassination. Firing a Hellfire missile to kill bin Laden is not an assassination.,
Some existing intelligence sharing arrangements are in the context of armed conflicts where the United States exercises an active role, e.g., Iraq, Afghanistan, and Libya. In these cases, both the partner’s and the United States’ authority for conducting lethal operations against various armed groups can be traced to the internationally recognized armed conflicts ongoing in these regions. In other armed conflict situations, the role of the United States is more limited, like the support provided to the Multinational Joint Task Force (MNJTF) combatting Boko Haram in the Lake Chad Basin of Africa or the Saudi-led coalition in Yemen fighting the Houthi rebels. Both MNJTF and Yemen provide examples of occasions where the United States supports partners engaged in armed conflict where the United States is not a party to the conflict.
In regards to U.S. support to MNJTF, an article on the increasing role of U.S. Africa Command’s special operations units stated in February 2016:
Over time, the level of cooperation between AFRICOM and African partners has been growing, and . . . [i]t seems clear that the actions of AFRICOM in Africa is an integral part of Washington’s policy, that right after the September 11 attacks has focused its attention to the expansion of the terrorist threat in the macro-region in order to safeguard its strategic interests.
To assist MNJTF, comprised of Benin, Cameroon, Chad, Niger, and Nigeria, in its fight against Boko Haram, the United States provides “enhanced intelligence sharing to counter the growing terrorist threat.” Before authorizing the intelligence sharing, the United States likely found that the MNJTF, acting pursuant to an authorization from the African Union with the consent of participating nations, had the appropriate legal basis to use lethal force since the conflict rose to the level of a non-international armed conflict. While the unclassified record makes it unclear whether the sharing arrangement involves intelligence used to support lethal operations, the first prong of the test is satisfied because the MNJTF has a legal basis for using lethal force against Boko Haram in its prosecution of an ongoing armed conflict.
When conducting operations in the territory of another nation, the United States must also examine whether the partner nation has the appropriate legal authority to do so under international law. For instance, the other State can provide consent for the partner to engage in operations within its territory or the U.N. Security Council can authorize a State to conduct operations in the territory of another State. With the Saudi-led coalition operating in Yemen, the Obama Administration stated, “The U.S. support for the Saudi-led coalition military operations is being provided in the context of the Coalition’s military operations being undertaken in response to the Government of Yemen’s request for assistance, including military support, to protect the sovereignty, peace, and security, of Yemen.” The United States has recognized an exception to the general rule of requiring either consent or a U.N. Security Council Resolution for operations in another country:
States defend themselves, in accordance with the inherent right of individual and collective self-defense, when they face actual or imminent armed attacks by a non-State armed group and the use of force is necessary because the government of the State where the threat is located is unable or unwilling to prevent the use of its territory by the non-State actor for such attacks.
In this situation, the partner nation must have a reasonable basis to conclude that the other State is unwilling or unable to address a threat emanating from its territory such that the recipient has no reasonable alternative to using force in the third State’s territory.
For operations occurring entirely within the territory of a partner nation, not rising to the level of an armed conflict, the review must look to other bodies of law for a legal basis, such as a partner nation’s domestic law. In these cases, the United States should ensure that the domestic law is consistent with international human rights law (IHRL). For instance, the foreign partner may be seeking U.S. intelligence to assist it in arresting an individual or group, like a foreign terrorist or foreign terrorist organization, using its law enforcement authorities. In this scenario, it is possible that lethal force may be used as a self-defense measure. In supporting a law enforcement operation, the United States would look to whether the host nation had the domestic authority to effect the arrest of the individual or group, and the exercise of this authority complied with IHRL.
B. Lawful Conduct of Operations
If the partner has a lawful basis for its lethal operation, the United States would also seek to ensure that the recipient of U.S. intelligence will carry out its operations lawfully. As a practical matter, this prong has a temporal aspect that requires an evaluation of the partner’s history of compliance with applicable LOAC or human rights standards, as well as the future likelihood of compliance. While decision-makers (and their lawyers) may readily come to a consensus on the legal foundation for a partner’s exercise of lethal force (first prong), the assessment of a partner’s intent to carry out its operations lawfully may not be as straightforward (second prong). On one extreme, the partner may have an impeccable record of complying with LOAC and human rights standards; on the other extreme, the partner may have an egregious record of compliance. Certainly, in the first case, the United States can reasonably expect, based on past conduct and reputation, that partner operations, using U.S. intelligence, will be conducted lawfully. In the second situation, decision-makers will have less confidence that a partner will conduct its operations lawfully. This, however, does not mean that the United States cannot provide intelligence assistance, but it does mean that the United States must carefully examine the legal risk involved in such assistance, and, as discussed below, whether measures can be taken to minimize that risk to an acceptable level, like monitoring, assurances, and training.
In an armed conflict situation, the United States would expect its partner to abide by the LOAC, which prevents the lethal targeting of civilians taking no part in hostilities and people who are hors de combat due to sickness, wounds, or having surrendered; requires detainees be treated humanely and afforded a fair trial prior to any punishment; and mandates operations be conducted to minimize collateral damage. In cases where the U.S. Government is supporting operations outside the context of an armed conflict, like a law enforcement action to arrest an individual, the legal review would examine whether the recipient’s actions are consistent with its domestic law and applicable human rights law.
C. Legal Implications for Supporting Unlawful Lethal Operations
If the partner does not have a lawful basis for its military or law enforcement operations or executes its operations unlawfully, then the sharing of U.S. intelligence may constitute a violation of international law, foreign domestic law, or U.S. domestic law and executive order, to include a potential violation of section 2.11 of EO 12333, which states that “[n]o person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination.” Even when the partner is alleged to have committed an unlawful act, it does not necessarily mean that the United States or its officials acted in violation of any law by providing intelligence support to the partner. The United States takes great care to ensure both its actions and the actions of its partner are lawful, but circumstances may arise when (1) a foreign entity or U.S. person may decide to pursue a civil remedy in U.S. or foreign courts, or (2) the U.S. Government, a foreign nation, or an international tribunal may deem it appropriate to criminally prosecute a case under international or U.S. domestic law.
Decisions on forum, remedies, and the applicable body of law are complicated by issues of nationality, territoriality, and sovereignty (to include immunity). Those reviewing intelligence sharing arrangements should understand the increasing desire (and ability) of outside judicial bodies to hold States and their officials accountable on matters of “international concern.” In arguing against the need for international oversight, some States claim that they have adequate domestic mechanisms to ensure accountability of its officials. A desire to share intelligence in support of another’s lethal operations should be viewed with consideration of the larger global dialogue on international accountability for state actions. Scholars often compare and contrast the systems of accountability in terms of a vertical legal order (which exercises domestic jurisdiction) and horizontal legal order (which exercises jurisdiction over matters of international concern).
The dichotomy between matters of international concern and those of domestic jurisdiction inheres in the very concept of international law, even in a world rationally organized on geographic basis. It signifies the necessity of a continuing allocation and balancing of competence between the general community and its component territorial communities, states, or regions, in ways best designed to serve the common interest. . . . An important function of international law is to permit external decision makers to intercede in matters that would otherwise be regarded as essentially internal to a particular state.
One scholar explained that:
[T]he authority of states is, initially, allocated under certain reciprocally honored principles of jurisdiction . . . . The competence over particular events achieved by states under most of these primary principles of jurisdiction are complemented by certain secondary allocations of competence under doctrines such as “act of state” and “sovereign immunity.”
Prior to approving the sharing of intelligence for lethal purposes, legal advisors must carefully assess the principles discussed above and advise policymakers on the legal risks, both horizontal and vertical, and whether actions can be taken to minimize risk of exposure to the United States and its officials. The appropriateness of risk mitigation measures can be informed by understanding the various laws, and the associated standards of responsibility, implicated by sharing intelligence information.
The following hypothetical helps to illustrate the potential legal ramifications:
A new branch of ISIS has organized and operates a military force of several thousand, conducts frequent military operations, and controls a large region of land spanning the borders of several nations. A regional military force has been organized to counter the threat, which is being supported by the U.S. intelligence. Unfortunately, in one of its first major operations, a coalition aircraft destroyed a field hospital, killing and injuring non-combatants, to include members of an international relief organization. Several NGOs and media organizations are reporting that the hospital was appropriately marked and the location known to regional forces. One media report stated, citing an unnamed source, that the forces deliberately targeted the hospital, using U.S. overhead imagery, because of the medical aid it was providing to ISIS. The international community, NGOs, survivors, next of kin, and Congress are calling for an official investigation into the incident and for those responsible to be held accountable.
Prior to authorizing the intelligence sharing arrangement, it can be assumed that the United States concluded that the regional forces were engaged in an ongoing armed conflict (non-international) with consent of the concerned nations, which provides a legal basis for lethal force. Questions remain, however, whether the partners were executing their operations lawfully and what, if anything, U.S. officials knew about them. Several of the potential legal issues, by no means exhaustive, raised by the scenario include: (1) State Responsibility under International Law for Supporting an Unlawful Act; (2) U.S. Criminal Liability for War Crimes; (3) U.S. Civil Liability for a Violation of the Law of Armed Conflict; and (4) International/Foreign Criminal and Civil Liability.
D. The Doctrine of State Responsibility
The doctrine of State Responsibility provides an international framework for assessing the complicity of a nation-state for the unlawful actions committed by a partner nation. The doctrine supports a horizontal theory of accountability—that certain state actions rise to a level of international concern, which must have a forum for accountability. States that fail to adhere to the doctrine may find themselves defending their actions before international tribunals, like the U.N. International Court of Justice or a specific conflict-focused international tribunal, established by treaty or U.N. Security Council resolution. As a general rule, per Common Article I of the Geneva Conventions, States have agreed “to respect and ensure respect” for the Conventions. Article 16 of the International Law Commission’s Draft Articles on State Responsibility further provides:
A state which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) the States does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.
While helpful in articulating an international standard, the article contains several ambiguous terms, like the phrases “aids or assists” and “with knowledge of the circumstances.” In 2001, regarding these ambiguities, the United States stated: The United States believes that Article 16 should cover only those cases where “the assistance is clearly and unequivocally connected to the subsequent wrongful act.” In 2016, the Obama Administration provided its view of the doctrine by stating:
The United States has taken the position that a state incurs responsibility under international law for aiding or assisting another States in the commission of an internationally wrongful act when: (1) the act would be internationally wrongful if committed by the supporting State; (2) the supporting State is both aware that its assistance will be used for an unlawful purpose and intends its assistance to be so used; and (3) the assistance is clearly and unequivocally connected to the subsequent wrongful act.
Knowledge of the underlying wrongful act is a critical element of the principle, but Article 16 does not explicitly require a state to make inquiries into a partner’s past, present, or future conduct before aiding or assisting another state. It also does not allow a state to be willfully blind to the unlawful conduct of a partner. “[W]here an assisting state has actual or near-certain knowledge that the assistance will be used for unlawful purposes by the recipient state, or where the state is willfully blind to such knowledge, it will have the degree of knowledge specified in Article 16.” One scholar wrote,
[G]overnments must not be willfully blind in the face of “credible evidence of present or future illegality,” and, in a dynamic situation “the responsibility of the assisting state may evolve as the facts, and its level of knowledge, develop.” In such situations, there should be a feedback loop whereby ex post facto investigation of alleged past violations, combined with information from other sources, plug into ongoing ex ante assessments of the potential consequences of future assistance.
In other words, governments should continuously monitor and assess partner activities to inform decisions on continued or future support. The provision, however, should not be interpreted as creating a doctrine of strict liability when supporting others. Professor Ryan Goodman, a former advisor to the General Counsel of the Department of Defense, writes,
I disagree with those who suggest that any targeting assistance that the U.S. Defense Department may provide the Saudi-led coalition “as a matter of law means [the United States] is liable for unlawful strikes in which it takes part.” Such a rule would discourage States from providing any assistance in the form of helping ensure that a recipient’s target selection and military strikes comply with the laws of armed conflict. . . . [T]here should, indeed, be a safe harbor from liability for assistance that is designed to ensure a recipient’s practice comply with international law. . . .
Some also dispute whether intent, in addition to knowledge, is a requisite of holding States accountable under the doctrine. The Chatham House report summarizes the tension as follows: “States should be able to cooperate without being unduly fettered where they have no reason to anticipate the wrongful use of their assistance, but they should not be able to deny their responsibility for assistance in situations in which internationally wrongful acts are manifestly being committed.” While scholars and the international community may hold differing views, the current U.S. position, previously articulated by the Obama Administration, is that the doctrine of State Responsibility has both knowledge and intent requirements.
In sum, Article 16 serves as a valuable tool to promote a normative framework to prevent State support of the wrongful actions by others. It provides an incentive for taking reasonable measures to ensure States do not support the unlawful operations. It should not be seen, however, as an impediment to responsible support. Practitioners should be aware of the divergence in how the doctrine has been interpreted.
The United States has robust authority, through the exercise of domestic jurisdiction (vertical legal order), to impose accountability on U.S. officials who engage in criminal actions. “[F]olks in official capacity should be aware that just because their State may not incur legal responsibility for complicity in the war crimes or other human rights violations of other States, that does not mean they, themselves, are immune from criminal accountability . . . .” Of course, officials who conscientiously perform their responsibilities, while adhering to established policies and procedures for U.S. intelligence sharing, should face little practical risk that their actions will land them in U.S. criminal court. On the other hand, if the facts in the above scenario demonstrated that a U.S. official willfully caused or conspired with a partner to commit a war crime, then the U.S. official may be in violation of U.S. criminal law.
Under U.S. law, the commission of a war crime can be prosecuted before U.S. federal courts, a military court-martial, or a military commission. The War Crimes Act of 1996 makes it a federal crime for a U.S. national or member of the U.S. armed forces to intentionally kill or cause serious bodily injury to civilians or other persons taking no active part in hostilities, or to conspire or attempt to do so. The Act “provides federal courts with jurisdiction to prosecute any person inside or outside the U.S. where a U.S. national or member of the U.S. armed forces is involved as an accused or a victim.” This last requirement would make a prosecution under a theory of aiding and abetting untenable, because it is unlikely that the partner, the underlying principal, is a U.S. national or member of the U.S. armed forces. The statute, in short, requires that the U.S. official specifically intended, either as a principal or a conspirator, that the partners kill or seriously injure civilians taking no active part in hostilities.
If warranted by the evidence, U.S. officials could be found liable for other violations of the U.S. criminal code with extraterritorial application. These could include aiding and abetting genocide or conspiracy to kill, kidnap, maim, or injure persons or damage property in a foreign country. For offenses under a theory of aiding and abetting, the Department of Defense Law of War Manual states:
[A]iding and abetting holds an individual liable for an offense committed by another based on certain assistance that the individual gave in relation to the crime. [It consists] of three elements: (1) knowledge of the illegal activity that is being aided and abetted; (2) a desire to help the activity succeed; and (3) some act of helping.
In explaining the knowledge standard at play, both the Department of Defense (DoD) Law of War Manual and Professor Ryan Goodman refer to the 1994 opinion written by Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, Department of Justice. The facts underlying the opinion “involved the U.S. Government’s providing intelligence information and other assistance to foreign government engaged in military strikes to shoot down civil aircraft.” Professor Goodman writes that the opinion concluded, “USG agencies and personnel may not provide information (whether “real-time” or other) or other USG assistance (including training and equipment) to Colombia or Peru in circumstances in which there is a reasonably foreseeable possibility that such information or assistance will be used in shooting down civil aircraft.” The opinion continues, “Where a person provides assistance that he or she knows will contribute directly and in an essential manner to a serious criminal act, a court readily may infer a desire to facilitate that act.”
As discussed in detail below, the United States has implemented procedures to protect U.S. officials from criminal liability for their official acts. When the process works as intended, it ensures the United States only shares potentially lethal intelligence with a partner who has a lawful basis for its operations and intent to carry them out lawfully. However, it is important to have a mechanism available, when needed, to hold U.S. officials fully accountable for criminal actions.
E. U.S. Civil Liability for Unlawful Killings
In the scenario described above, it is possible that the next of kin or survivors may pursue a suit in U.S. court against those officials involved in providing intelligence support to the operation. Whether a U.S. court has jurisdiction to review the actions of U.S. officials is complicated by the interplay between statutes and case law on jurisdiction, official immunity, and sovereignty. Of course, it would significantly impact U.S. foreign relations if U.S. officials feared lawsuits for their every act. This concern has been highlighted in litigation surrounding the application of the Alien Tort Statute (ATS), originally enacted in 1789. The ATS provides that the “courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
The ATS is a procedural statute, requiring a plaintiff to demonstrate a violation of the “law of nations” or a “treaty of the United States” upon which U.S. courts can exercise jurisdiction. In Sosa v. Alvarez-Machain, the plaintiff, a Mexican national, alleged that his detention in Mexico by Mexican officials, conducted at the behest of the U.S. Drug Enforcement Agency, was in violation of Federal Tort Claims Act (FTCA) and the ATS. Although the Supreme Court recognized that Congress had waived sovereign immunity for injury caused by the wrongful acts of Government employees while acting within the scope of their employment, it dismissed the FTCA claim on grounds that the Act did not extend to arrests occurring outside the United States. It also determined that the ATS “only created subject matter jurisdiction, not a cause of action for violation of international law.” In other words, the ATS does not provide an avenue for all treaty and customary international law violations, only those violations that are part of U.S. law, through either incorporation or recognized common law. “Sosa thus requires that the tort be ‘committed’ in violation of international law, not that international law itself recognize a right to sue in domestic courts and not that Congress adopt implementing legislation defining the wrong.” Subsequent courts, relying on Sosa, have found that only certain “egregious violations of human rights law,” like torture, genocide, and war crimes, would be considered part of the U.S. common law. In theory, the litigants in the hypothetical could use the procedural aspects of ATS, but they would also have to allege some type of serious violation of international law “comparable to the ‘18th-century paradigms’ . . . like piracy and attacks on diplomats.” Plaintiffs, for instance, could allege that U.S. officials committed a war crime by participating, through the provision of intelligence support, in the deliberate targeting of a hospital in violation of the Law of Armed Conflict.
The Supreme Court, however, recently tightened the application of the ATS with the case of Kiobel v. Royal Dutch Petroleum Co. In Kiobel, the Court stated a plaintiff cannot bring a suit through the ATS when the alleged tortious act occurred exclusively outside the jurisdiction of the United States. The Court tempered its holding by stating, “[In this case,] all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” The meaning of the “touch and concern” language has been the subject of several court cases, particularly, “how much domestic conduct or contact is required to rebut the presumption against extraterritoriality.”
The plaintiffs in the scenario might also make an argument alleging a violation of U.S. constitutional protections. As Professor Andrew Kent has stated, it has “been black letter law throughout the nineteenth century that noncitizens outside the United States lacked constitutional rights.”
The precedent of Boumediene v. Bush extended constitutional protections to non-citizens in Guantanamo because the United States exercised practical sovereignty over those it detained in that location. In Boumediene, the Supreme Court examined whether non-U.S. citizens, located overseas, should be afforded certain protections and legal recourse under the U.S. Constitution. In examining the history of this issue, Professor Kent cites Justice Rehnquist, writing for the majority in United States v. Verdugo-Urquidez:
The United States frequently employs armed forces outside this country—over 200 times in our history—for the protection of American citizens or national security. Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political branches to respond to foreign situations involving our national interest. Were respondents to prevail, aliens with no attachment to this country might well bring actions for damages to remedy claimed violations of the Fourth Amendment in foreign countries or in international waters.
It should come as no surprise that U.S. law has evolved to limit the avenues for foreign nationals to bring private actions against U.S. officials for their acts in furtherance of national security. Like all nations, the United States has an interest in conducting foreign affairs, without being routinely sued by aggrieved foreign nationals. This does not mean that U.S. officials can act impudently abroad; a number of other systems provide for accountability. Still, a foreign national will have significant legal challenges to overcome before a U.S. court will review the actions of those acting for the U.S. Government, particularly involving the support provided to an ally in an armed conflict situation.
F. International/Foreign Individual Criminal and Civil Liability
While it is unclear in the scenario where the intelligence support actually took place, it is likely that some U.S. personnel were located abroad, for example, at military bases or embassies. Certainly in cases of “international concern,” to include matters involving “universal jurisdiction,” international and foreign domestic courts may seek to exercise horizontal jurisdiction, criminal or civil, for acts taken by individuals within their jurisdiction. During coordination and review, the United States must closely examine whether its intelligence support would place its employees at undue risk of a horizontal civil suit or criminal charges. While the United States can take measures to minimize the legal risks on the criminal side, like coordinating with impacted nations, it cannot prevent private citizens from filing civil suits. A case that implicated foreign domestic law was illustrated with the indictment by an Italian magistrate of several Central Intelligence Agency (CIA) personnel for the extradition of Abu Omar. In writing about the operation, Professor A. John Radsan wrote, “It would be dangerous for the CIA to snatch an Italian resident without notifying the Italian government. . . . [I]f the Americans do not have permission for the snatch, they would be subject to prosecution in Italy for kidnapping or related charges.” He explained that the United States, particularly organizations like the CIA, closely examine the risk of foreign jurisdiction and work to minimize those risks. “CIA officers, advised by CIA lawyers, tend not to take unnecessary risks; they do not expose themselves to the laws of foreign countries unless there is a strong countervailing interest.” Of course, the United States, like in the Italy case, may seek to shield its officers from appearing in foreign court by removing them from the country. Or, it may decide, upon request from a foreign country, to agree to the extradition of those facing charges so they can appear in the foreign court. Because foreign criminal and civil implications are highly fact dependent, lawyers and policymakers must review each arrangement to ensure that the United States is not placing its officials at undue risk of legal exposure.
Decision-makers must also consider the risk of prosecution before an international criminal tribunal, like the International Criminal Court (if it is able to exercise jurisdiction over United States citizens), or a specifically created tribunal to address a particular conflict. Article 25(3) of the Rome Statute, which established the International Criminal Court, makes it unlawful for a person under their jurisdiction to facilitate, aid, abet, or otherwise assist in the commission of a crime. Regarding intent, Article 30 of the statute states,
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.
Some scholars and practitioners believe that this standard, agreed upon by parties to the treaty, is less stringent than that required by customary international law. In United States v. Khalid Shaikh Mohammad, et al., for example, the United States argued that to be guilty of aiding and abetting under customary international law, an individual must have:
1) [P]rovided practical assistance, encouragement, or moral support to the perpetration of a crime or underlying offense, and
2) Such practical assistance, encouragement, or moral support, had a substantial effect upon the commission of a crime or underlying offense.
Noting that the mens rea for this standard only requires knowledge and not intent, Brian Finucane, a legal advisor at the Department of State, commented: “[A]n aider and abettor must be aware of a “substantial likelihood” that he/she would assist in the commission of the offense, a standard akin to recklessness. A conscious desire or willingness to achieve the criminal results is not required.” He elaborates:
The greater the awareness that the partner receiving assistance failed to comply with LOAC, that such violations reflected policy decision or systematic deficiencies and that violations were likely to continue in the future, the stronger the argument that individual officials of the assisting State would be aiding and abetting war crimes.
This interpretation introduces the element of recklessness into the equation, either on the part of the assisting State (in allowing the support) or on the part of the partner (in not taking reasonable actions to correct deficiencies). Thus, an intent to achieve the purpose of the unlawful activity may not be necessary under this interpretation of the customary international law standard; it may only require adequate knowledge that there is a substantial likelihood that the intelligence would assist in the commission of an unlawful activity, whether it was the result of a deliberate decision or negligent targeting practices. Other courts, to include the International Criminal Tribunal for Yugoslavia, have concluded that the international law standard for aiding and abetting is much higher and requires an individual to “specifically direct” that the assistance be used in the commission of the underlying offense.
Regardless of the standard at play, the United States has thus far been resistant to attempts to formalize international criminal jurisdiction over its officials, citing concern that its agents, particularly members of the Armed Forces, would be subject to politically motivated prosecutions. This concern has been demonstrated in the United States’ reluctance to agree to the Rome Statute and the jurisdiction of the International Criminal Court. However, as Professor Gabor Rona aptly summarized,
While it’s unlikely that a State will prosecute its own agents for acts that it authorizes, the risk of prosecution is real. Regimes change. Amnesties can be undone. The summer-in-Tuscany plan may be risky for CIA torturers. . . . In assessing the risk of prosecution, officials should be aware that some crimes are considered so heinous that they are subject to universal jurisdiction . . . . In fact, the Torture Convention, the Genocide Convention, and in the case of international armed conflicts, the Geneva Conventions not only permit, but require, parties to search for and either try, or extradite for trial, persons suspected of certain offenses prohibited by these treaties, regardless of where on earth the offenses occur.
III. Strategy, Policy, and Process
To ensure adherence to international, foreign, and U.S. domestic law, while furthering U.S. strategic objectives, the Executive Branch has established a framework based on statutory law, executive order, national strategy, and departmental issuances. The structure allows the national security enterprise to balance national security, political, military, and foreign policy objectives, while accounting for the legal considerations discussed above.
A. National Strategy
Understanding why and how the United States shares intelligence with foreign partners begins broadly with White House guidance contained in the National Security Strategy of 2017 and National Strategy for Information Sharing and Safeguarding. These documents, along with the National Security Act of 1947, provide the top-level structure and framework for foreign intelligence sharing.
The National Security Strategy serves not only as an external message to Congress, the American people, and the world on how the United States will seek to address national security concerns, but it also provides internal guidance to the departments and agencies of the Executive Branch on how it should organize, prioritize, and execute their efforts. Importantly, the strategy advocates working with foreign partners and seeks to “confront threats before they ever reach our borders or cause harm to our people.” The strategy also emphasizes that the United States will champion American values, including individual rights and the rule of law.
Notably, the strategy directs the Executive Branch to pursue its national security objectives by working with foreign partners while also advancing American values. The United States is often faced with the dilemma of whether it should work with those with questionable values in pursuit of its national security objectives. As Brian Egan, former Legal Adviser at the Department of State, stated in his April 2016 speech to the American Society of International Law, the United States has a strong interest in ensuring that, when we engage in armed conflict, we do so consistent with international law, and “legal diplomacy” has a role in ensuring that our partners, as a condition for receiving our assistance also follow the rules. “[T]he U.S. wants to work with partners who will comply with international law, and our partners expect the same of us. In this way, international law serves as a critical enabler of international cooperation.”
The strategy promotes a moral dimension when evaluating a proposal to share intelligence with a foreign partner. While the current strategy is similar to the previous Administration’s strategy in balancing security goals with a desire to promote individual rights, President Trump has made clear he places great weight on promoting American interests: “it is the right of all nations to put their own interests first . . . [and w]e do not seek to impose our way of life on anyone . . . .” With mounting evidence of human rights violations by the Saudi leadership, the Trump Administration faces a critical test on how it evaluates and weighs its current intelligence sharing relationship, particularly when the United States relies on the credibility of the Kingdom in assessing its adherence to international law in its operations in Yemen.
The 2012 National Strategy for Information Sharing and Safeguarding provides more clarity on how to “strike the proper balance between sharing information with those who need it to keep our country safe and safeguarding it from those who would do us harm.” In seeking to achieve the overarching objective of sharing “the right information, with the right people, at the right time,” the strategy recognizes that foreign entities are key partners in “prevent[ing] harm to the American people and protect[ing] national security.” The strategy is based on three core principles: (1) Information is a national asset that requires “stakeholders [to] make it available to those who need it, while also keeping it secure from unauthorized or unintended use; (2) information sharing and safeguarding requires a mentality of risk management vice risk avoidance; and (3) the understanding that information informs decision-making and “our national security depends upon an ability to make information easily accessible . . . in a trusted manner . . . .”
Taken together, these strategies form the foundation for how, why, and when the U.S. Government shares information with foreign partners. While the documents do not directly link intelligence sharing with the promotion of American values, rule of law, and individual rights, the National Security Strategy emphasizes that these objectives are a priority for U.S. efforts abroad.
B. Law and Policy
The legal foundations establishing the roles and responsibilities for implementing the strategic guidance on sharing intelligence with foreign partners are grounded in the National Security Act of 1947 and Executive Order 12333. These twin pillars of intelligence authority, derive, on the one side, from Congress’s Article I law-making authority and, on the other, the President’s Article II executive authority. Together, they provide the authority for the Director of National Intelligence (DNI) to promulgate Intelligence Community Directive 403, which implements the Administration’s national strategy on information sharing and “establishes policy governing the disclosure and release of classified national intelligence . . . .”
C. Director of National Intelligence Issuances
Intelligence Community Directive 403, Foreign Disclosure and Release of Classified National Intelligence, first issued in 2013, implements the DNI’s statutory and executive order duties and authorities related to foreign disclosure and release of classified national intelligence. Among other things, ICD 403 sets forth the DNI’s roles and responsibilities for intelligence sharing, as follows: “the DNI (a) provides strategic guidance and oversight for the conduct of foreign disclosures and releases of intelligence and issues specific guidance for the establishment, modifications and terminations of, and exceptions to IC guidance; (b) authorizes disclosures or releases of intelligence that represent the establishment, modifications or terminations of, or exceptions to IC guidance, or that concern matters where DNI guidance is absent; and (c) authorizes disclosures or releases of intelligence in response to National Security Council policy direction.” Intelligence sharing is often characterized according to three categories, commonly referred to as: (1) bilateral/multilateral national intelligence sharing; (2) ad hoc national intelligence sharing; and (3) situational national intelligence sharing. A fourth category of intelligence sharing exists for classified military information, discussed in more detailed below.
Further guidance on implementing the provisions of priorities of ICD 403 is contained in Intelligence Community Policy Guidance (ICPG). Of the ICPGs in the 403 series, ICPG 403.1, Criteria for Foreign Disclosure and Release of Classified National Intelligence, importantly, provides the starting point on the factors to be considered when reviewing the “appropriateness and suitability of foreign disclosures or releases of intelligence.” To complement ICPG 403.1, ICPG 403.2, Procedures for Foreign Disclosures and Release Requiring Interagency Coordination, Notification, and DNI Approval, details the level of approval required for various intelligence sharing arrangements.
The provisions of ICPG 403.1 provide the Intelligence Community with guidance on when intelligence can be shared, and when it should not, to include when sharing would be in violation of U.S. domestic and international law. According to the guidance, intelligence may be disclosed or released if:
a. Disclosure or release is consistent with U.S. foreign policy and national security goals and objectives;
b. Disclosure or release can be expected to result in an identifiable benefit to the U.S., such as:
(1) Service a specific U.S. national purpose in support of diplomatic, political, economic, military, or security policies as determined by senior U.S. Government (USG) policy makers [Senior USG policy makers are the President, the Vice President, and the National Security Council];
(2) Obtaining commensurate information or services from the proposed recipient;
(3) Supporting bilateral or multilateral treaties, alliances, agreements, arrangements or plans; or
(4) Aiding U.S. intelligence or counterintelligence activities.
On the other hand, certain types of intelligence are prohibited from disclosure or release, to include for purposes of this discussion:
a. Intelligence, the disclosure or release of which would be contrary to U.S. law, or to agreements or treaties between the U.S. and foreign nations;
b. Intelligence, not publicly available, on a U.S. person, unless collection, retention, and dissemination of such information is authorized by EO 12333 and implementing procedures and guidelines, and not otherwise prohibited by the Privacy Act, 5 USC 552a; requires special consideration and authorization, including referral to the NSC and compliance with NSC direction as appropriate; . . . .
Requests for DNI approval for an intelligence sharing proposal must contain sufficient information to ensure that policymakers can assess merits of the proposal and adherence to both national strategy and ICD 403, and the associated legal implications.
Lastly, ICPG 403.1 contains another constraint to ensure that intelligence provided to others to facilitate lethal actions gets additional consideration and scrutiny. DNI approval is required for “[d]isclosures and releases that would support or facilitate lethal action . . . .” Before sharing intelligence of this nature, ICPG 403.1 requires the proposed disclosure or release undergo “special consideration and authorization [by DNI], including referral to the NSC and compliance with NSC direction as appropriate.” Of necessity, part of the review and approval required before sharing of such intelligence would be a determination that doing so would not violate the ICPG 403.1 prohibitions on sharing intelligence in violation of domestic law, international legal obligations, and EO 12333.
In sum, the processes ensure all proposals to share lethal intelligence are thoroughly vetted, coordinated, and reviewed. The procedures, particularly ICPG 403.1, restrict the USIC from sharing national intelligence for lethal purposes unless it has undergone “special” review and received approval from the DNI. This prevents decentralized, lower level decisions to share such intelligence. Proposals can either be a bottom-driven, requested from a member of the USIC or a combatant command (and referred to the NSC per ICPG 403.1), or it can be top-driven direction from the NSC itself or one if its coordination committees (per ICPG 403.2). Regardless of how the proposal arrives, DNI will not authorize sharing unless it has received NSC-level review, which includes interagency deliberation. Once the proposal has received a favorable review through the NSC coordination process, ODNI will send the proposed arrangement through the Foreign Relations Committee (FRC), a specialized interagency organization specifically designed to ensure coordination, support, synchronization, and effective implementation of intelligence sharing matters across the Executive Branch. Legal reviews of such national intelligence sharing proposals will be conducted at, at least, two points: by the interagency lawyers group, in conjunction with any review by an NSC coordination committee, and by the ODNI General Counsel’s Office, prior to the issuance of any intelligence sharing guidance by ODNI. At any point in the deliberations, legal counsel and policymakers can suggest certain conditions, parameters, or risk mitigation measures to address any risks generated by legal or policy concerns, which, if agreed upon, can be incorporated into the final intelligence sharing authorization, issued by DNI.
D. National Disclosure Policy – 1
Separate from the DNI’s purview over sharing national intelligence with foreign entities, the Secretary of Defense (in conjunction with the Secretary of State) has independent authority to share classified military information (CMI), which allows the United States military to work with allied forces and engage in military operations abroad. Unlike the DNI, the Secretary of Defense’s intelligence sharing authority is derived from the President’s authority as Commander-in-Chief and based on National Security Decision Memorandum (NSDM) 119, Disclosure of Classified United States Military Information to Foreign Governments and International Organizations, dated 20 July 1971. National Policy and Procedures for the Disclosure Classified Military Information to Foreign Governments and International Organizations (NDP-1) implements this authority.
Since DoD intelligence sharing is heavily focused on support to military operations, the authority to share CMI in support of those operations flows from the presidential and secretarial approval to conduct the lethal operations. Decisions to allow intelligence sharing for lethal purposes are thus made at the highest level of government, after much scrutiny, deliberation, and legal review. In other words, sharing of CMI for lethal purposes is typically a subset of the overall approval to conduct or support lethal operations. Department of Defense Directive 5230.11, Disclosure of Classified Information to Foreign Governments and International Organizations, supports this principle in paragraph 4.8: “Under conditions of actual or imminent hostilities, any Unified or Specified Commander may disclose classified military information through TOP SECRET to an actively participating allied force when support of combined combat operations requires the disclosure of that information.” A Record of Action will normally be issued establishing the parameters for intelligence sharing, even with the existence of national policy direction authorizing combat operations.
Numerous other players, below the Pentagon level, provide additional safeguards to ensure only authorized intelligence, both national and military, is shared with a foreign partner within approved parameters. Members of the combatant command, down to the tactical level, assess the partner’s ability to safeguard the information, as well as their ability to use the intelligence appropriately, to include whether the partner will abide by the LOAC. Attorneys, Foreign Disclosure Officers/ Representatives (FDOs/FDRs), intelligence personnel, and operators all keep a close eye on the category of sharing at issue and any conditions/restrictions that have been imposed. This will drive a determination if approval exists or is required for the intelligence to be shared and, if necessary, the process to be used in gaining approval.
Importantly, the FDO diligently tracks the various approvals and authorities for intelligence sharing across the combatant command in support of their various lines of efforts. It is the FDO, and duly appointed FDRs, who, at the operational and tactical levels, ensure that intelligence sharing efforts are adequately supported by law and policy. In making decisions on disclosure and release of intelligence, foreign disclosure officers/representatives execute the guidance found in the ICDs/ICPGs, NDP-1, Records of Action, bilateral and multinational sharing arrangements, and DNI intelligence sharing guidance.
Whether the department or agency seeking to share intelligence for lethal purposes has the requisite authority depends on the military side, the existence of national direction, an EXORD, or a Record of Action, and, on the national side, the existence of DNI authorization and national guidance. Because military and national intelligence sharing initiatives often intersect and overlap, the USIC, particularly the interagency coordinating bodies for intelligence sharing at the Office of the Director of National Intelligence and DoD, must manage proposals to share lethal intelligence to ensure seamless support of U.S. policy priorities.
In summary, the above law, strategy, and policy describe two separate, but integrated, frameworks for intelligence sharing: National and Military, with national intelligence sharing being further divided into (1) bilateral/multilateral national intelligence sharing arrangements; (2) ad hoc national intelligence sharing; and (3) situational national intelligence sharing. The Chatham House report encourages a state working with partners to “have policies in place to enable it to identify properly the risk of cooperation.” The structure and mechanisms established through ICD 403 and NDP-1 allow decision-makers to gather information, discuss, and effectively assess the legal risk of going forward with an intelligence sharing arrangement. It also allows the U.S. Government to issue guidance requiring certain actions be taken to reduce the risk of legal exposure to the United States and its employees.
E. Measures to Minimize Risk of Supporting Unlawful Actions
The U.S. Government has developed several tools to minimize the risk that the United States will be involved in supporting the unlawful actions of a partner.
As appropriate, the United States can take a variety of measures, including diplomatic assurances, vetting, training, and monitoring, to ensure that the recipient of U.S. intelligence respects human rights and complies with the law of armed conflict. The Chatham House report provides a similar formula to reduce the risk of assisting in unlawful acts by other states.” The report encourages states to use the following tools, similar to the list of measures previously provided by the United States:
- Attaching conditions to the provision of assistance;
- Diplomatic assurances;
- Legal diplomacy and demarches;
- Vetting and training recipients of assistance;
- Confining assistance to a particular part of a state; and
- Monitoring, reporting and follow up systems.
Risk mitigation measures, like monitoring and receipt of assurances from a partner, may have the benefit of encouraging a partner to adopt more humanitarian practices, while making it aware that continued support is premised on certain behavior. The United States may also condition sharing on arrangements to ensure the United States can monitor use of the intelligence, to ensure the rules are being followed. It is important that “any decision to assist . . . be kept under review.” But some partners will need to be more closely monitored than others. In the area of risk mitigation measures, one size does not fit all. Depending on the circumstances, it may be prudent for the United States to closely monitor how U.S. intelligence is used; in other cases, it may be reasonable to place greater confidence in the partner. Risk mitigations measures, when necessary, serve to limit the risk that U.S. intelligence support facilitates an unlawful act, and demonstrates the intent to adhere to the rule of law in any support provided by the United States.
Unlike other types of foreign aid and assistance, such as the provision of arms, equipment, or financial support, where it may be difficult to reverse aid already provided, an ongoing intelligence sharing relationship can always be suspended, terminated, or modified in the face of evidence that the partner has used U.S. intelligence unlawfully. This gives the United States flexibility and leverage when sharing intelligence with partners, which is especially important when the intelligence support has potentially lethal consequences. When faced with evidence of ongoing or future unlawful activity, appropriate action will minimize the risk of legal exposure for the United States and its officials. Measures to mitigate legal risk, like assurances, vetting, training, and monitoring, however, may not always be required, or even possible, and should be considered on a case-by-case basis. If the partner has a demonstrated record of complying with LOAC and respecting human rights, it may not be necessary to take any measures to reduce the risk that the United States would improperly support a partner’s unlawful actions. On the other hand, some potential U.S. partners have poor human rights records or inappropriate targeting practices, but their assistance may be vital in addressing a U.S. national security priority. In those cases, the United States must use established processes to assess whether the legal risk can be managed to a degree that makes the intelligence sharing arrangement appropriate.