Intelligence, Ethics, and Bureaucracy: The Duty to Warn Jamal Khashoggi
In the six months since Jamal Khashoggi was murdered by a Saudi “Rapid Intervention Group” in the Saudi Arabian consulate in Istanbul, press reports have described a variety of information swept up by U.S. intelligence that foretold or foreshadowed the heinous crime. The reporting has cast a rare light not only on our spy agencies’ activities and capabilities, but also on the complicated moral dilemmas that accompany mass surveillance. And it has intensified questions over whether the intelligence agencies that gathered this information carried out a legally required duty to warn the journalist that his life was in danger.
The press reports make for sobering reading. A week after Khashoggi was killed, the Washington Post described intercepted communications discussing a plan to lure the U.S.-based journalist back to Saudi Arabia—information that an unnamed U.S. official said “had been disseminated throughout the U.S. government and was contained in reports that are routinely available to people working on U.S. policy toward Saudi Arabia.” A December Wall Street Journal report described messages intercepted in August of 2017 suggesting that if the plot to lure Khashoggi to Saudi Arabia did not succeed, “we could possibly lure him outside Saudi Arabia and make arrangements,” and a February New York Times story described a conversation the NSA intercepted in September 2017 between Crown Prince Mohammed bin Salman and a close aide of his in which the Crown Prince vowed, if efforts to lure Khashoggi back to Saudi Arabia or to repatriate him by force failed, to go after him “with a bullet.” A March New York Times report revealed that U.S. intelligence had collected information that showed the same “Rapid Intervention Group” that murdered Khashoggi had been involved in the kidnapping and forcible repatriation for detention and torture of several other Saudi dissidents over the previous three years. (At least three of these operations, involving members of the Saudi royal family, had been described by the BBC before Khashoggi’s murder.)
These stories rely on a combination of leaks by anonymous sources and information compiled in the classified November 2018 CIA assessment of the Khashoggi murder, which was quoted or summarized by sources or by reporters who were shown sections of the report. The intelligence described in these reports has not been officially confirmed, and the articles generally include pushback from the White House and intelligence community suggesting the information was less conclusive than the articles imply, or that the information existed as raw intelligence that had only been reviewed and processed in the wake of the murder. Missing from any of the pushback, however, is any assertion that U.S. intelligence agencies do not engage in this kind of surveillance, or that they did not routinely deploy these tools against Mohammed bin Salman both before and after he was named Crown Prince in June of 2017.
Few would believe such claims, in any case. The breathtaking scope of U.S. signals intelligence is no secret in the post-Snowden era. No laws restrain the use of these powers to spy on foreign leaders, and such surveillance, in pre-digital forms, has been the essence of espionage since the formation of states. It is, therefore, far from improbable that the United States would be using its powers to monitor the conversations of a contender for the throne of a country of enormous strategic value, a country whose monarchy lacks a clear order of succession and is infamous for its palace intrigue.
But with great spy powers come grim responsibilities. One of the main aims of state surveillance is foreknowledge. One of its inevitable byproducts, when the surveillance is targeted toward repressive regimes, is information about threats and plots against the regime’s perceived enemies. The women and men who sift through the mountains of conversations our machines are constantly vacuuming from key players in these regimes will, from time to time, find they are holding information on plans to kill, seriously injure or disappear dissidents. It is hard to imagine a more wrenching dilemma for an intelligence officer than the question: What am I supposed to do with this information?
We now know, thanks to Freedom of Information Act (FOIA) requests and litigation filed by the Knight First Amendment Institute and the Committee to Protect Journalists (CPJ) in the days after Jamal Khashoggi’s murder, exactly what an NSA employee who finds herself in this situation is supposed to do. This is the first time these documents have been publicly released.
A July 2017 “Duty to Warn Standard Operating Procedures (SOP),” and a May 20, 2018 NSA and Central Security Service (CSS) Policy Instruction on the Duty to Warn, lay out a specific roadmap for what intelligence officers must do to comply with Intelligence Community Directive 191, which is the 2015 order that recognized and codified the responsibility to warn someone who is known to be in danger. A legal obligation first defined for health professionals who learn in the course of caring for a patient that the patient may pose a risk to himself or to others, the “Duty to Warn” as defined for NSA and CSS officers is described in the SOP this way:
Any NSA/CSS element that collects or acquires credible and specific information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person or group of people (hereafter referred to as “intended victim”) shall have a duty to warn the intended victim or those responsible for protecting the intended victim, as appropriate….The term “intended victim” includes both U.S. persons…and non-U.S. persons.
The directive is clear: Anyone who fields credible and specific threat information must act. The NSA guidelines then lay out the process by which threats are evaluated and warnings delivered, and describe at least five specific points in the process that must be documented—including the justifications for any decision to waive the duty to warn requirement and opt out of the obligation to issue a warning. The guidelines even reproduce the template an NSA employee must complete to forward the warning to either the FBI or CIA for delivery to the intended victim.
The Knight Institute and CPJ specifically sought documents like the ones required in these NSA procedures in their FOIA requests to the Office of the Director of National Intelligence (ODNI), the NSA, CIA, FBI, and the State Department. In addition to the guidelines each of these agencies uses in determining whether and how to deliver warnings, we also requested records relating to any Duty to Warn decisions and actions the agencies may have taken in connection with threats to Khashoggi, and any records they may have concerning debates or discussions between agencies related to those threats.
Four of the five agencies issued “Glomar” responses to the requests for materials relating to the duty to warn Khashoggi, neither confirming nor denying that they have any such documents. They are the agencies most likely to handle the threats directly and to have these documents in their files: the NSA itself, the largest gatherer of signals intelligence; the CIA, the agency responsible for delivering warnings to intended victims outside of the United States; the FBI, which delivers the warnings to those living in the U.S.; and the ODNI, which referees disputes over duty to warn responsibilities. In invoking the Glomar denial, the agencies are claiming that simply admitting that they possess any such documents would endanger national security.
This seems farfetched. Information that Khashoggi was in danger could have come from signals intelligence, from human intelligence, or from another country’s intelligence services. Acknowledging that there is duty to warn-related information in U.S. intelligence files reveals next to nothing about our spy agencies’ sources and methods. But the question of whether or not these documents exist is essential to knowing whether and how the system failed in Khashoggi’s case. By declining to say if they even have such documents, the agencies are able to a sidestep any public examination of how well they executed their duty to warn the journalist that his life and liberty were in jeopardy.
The one agency that did address the request for documents on threats to Khashoggi was the State Department, which declared that its search had turned up no such records. That response is very different from the State Department’s response to a parallel FOIA lawsuit filed by the Open Society Institute’s Justice Initiative in January. That suit seeks documents relating to the classified CIA assessment of Khashoggi’s murder, including the documents on which the assessment based its widely reported conclusion, with a “medium to high degree of certainty,” that the Crown Prince personally ordered the operation in the Saudi consulate in Istanbul. Far from asserting it had no records relevant to that request, the State Department responded that it will require additional time to process the documents because of the volume of potentially relevant records it will need to search and prepare them for release. Do any of these records include information on plans to harm Khashoggi? And if so, how did they not trigger Duty to Warn conversations and actions?
There is another curious aspect to the State Department’s response to the Duty to Warn FOIA. The NSA, CIA and FBI all produced one or more versions of their agencies’ documents spelling out their duty to warn obligations and procedures (though true to form, and likely indefensibly, the CIA has redacted all but a smidgen of introductory text). The State Department, however, released just one single-page document that a cover email describes as “new guidance” on the duty to warn. The document it forwards was apparently the subject of a classification dispute that delayed the department’s response; originally unclassified, the document as released was re-designated as Classified just prior to release, and a significant portion of the one-page document is redacted. The covering email reads, “Please see updated information on DTW….While I am still waiting for clearance from the FO, the basics of what actions we should take still apply.” The email is dated August 23, 2018. Was there some reason the subject of Duty to Warn procedures was in the air just over five weeks before Khashoggi’s murder?
These are just a few of the questions that the government’s response to the Duty to Warn FOIA raises. The thoroughness of the searches, the content of the material that has been redacted, the extent to which the agencies may be hiding behind Glomar denials to escape scrutiny of whether they fulfilled their legal requirement to convey to a prominent dissident that he was being targeted for kidnapping and potential murder—these matter far beyond the simple but essential question of whether we failed Jamal Khashoggi. We need to understand whether the many intercepted threats to harm a journalist who was living and working in the United States triggered the right alarms, and whether and how the intelligence community responded to those alarms. Many more lives depend on ensuring that the Duty to Warn system is working.
We need to know these things, too, to make sure that our collective moral compass remains intact. The women and men who sift through the mountains of intelligence our country gathers, and who come to discover that some of those we are surveilling are plotting grave human rights abuses, bear the day-to-day burden of the Duty to Warn. But that duty is derived from a system of values that the United States has long claimed to promote and represent. The judgment of how closely we actually hold those values is one that falls, in the end, on all of us.
This Comment was originally published in Just Security.
Read more about Knight Institute and Committee to Protect Journalists v. CIA here.