The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence

RECANATI-KAPLAN FELLOWSHIP SERIES The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence

Sunny Jiten Singh

PAPER SPRING 2019 Recanati-Kaplan Foundation Fellowship Belfer Center for Science and International Affairs Harvard Kennedy School 79 JFK Street Cambridge, MA 02138 www.belfercenter.org/fellowships/recanatikaplan.html

Statements and views expressed in this report are solely those of the author and do not imply endorsement by Harvard University, the Harvard Kennedy School, or the Belfer Center for Science and International Affairs.

Design and Layout by Andrew Facini

Cover photo: From left, CIA Director Gina Haspel, Director of National Intelligence Daniel Coats, and Defense Intelligence Agency Director Gen. Robert Ashley, with (not pictured) FBI Director Christopher Wray, National Security Agency Director Gen. Paul Nakasone and National Geospatial-Intelligence Agency Director Robert Cardillo testify before the Senate Intelligence Committee on Capitol Hill in Washington Tuesday, Jan. 29, 2019. (AP Photo/Jose Luis Magana)

Copyright 2019, President and Fellows of Harvard College Printed in the United States of America RECANATI-KAPLAN FELLOWSHIP SERIES The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence

Sunny Jiten Singh

PAPER SPRING 2019 About the Author

Sunny J. Singh is a 2018-2019 Recanati-Kaplan Fellow at the Harvard Kennedy School’s Belfer Center where he worked on the Intelligence Project.

With wide-ranging government experience to include work as a Political Analyst covering global hotpots and as a former Presidential Daily Briefer, his research interests include studying current global events through a lens of historical analysis and the potential strategic implications those bear on U.S. national security. As such, Sunny’s previous research focused on the use of spy craft in states predating the second millen- nium BC and its significance on modern intelligence. His book, Kautilyan Antecedents of the Westphalian Order, which focuses on the extent of the Mauryan State under Canakya was published in 2008. Sunny holds a Master’s in Diplomacy from the John C. Whitehead School of Diplomacy and International Relations at Seton Hall University and a Ph.D. in Global Affairs from Rutgers University.

Acknowledgements

The author wishes to recognize the former Director of National Intelligence, James R. Clapper, for being gracious with his time to review the paper and for offering his invaluable insight. The author is grateful to Rolf Mowatt-Larssen, Director of the Intelligence Project at the Belfer Center for Science and International Affairs for his leadership and support throughout the duration of the Recanati-Kaplan Fellowship.

ii The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence Table of Contents

1. Introduction...... 1

2. The Intelligence Enterprise—The Beginnings...... 3 Colonial Alliances...... 3 The Shift from Singular to Modular Intelligence Contracting...... 11

3. The Government and Private Industry: Post-9/11 Paradigm21 ......

4. Regulatory Ambiguity Fosters Loopholes ...... 25

5. The Approach Forward...... 30

Conclusion...... 37

Belfer Center for Science and International Affairs | Harvard Kennedy School iii From left, CIA Director Gina Haspel, Director of National Intelligence Daniel Coats, and Defense Intelligence Agency Director Gen. Robert Ashley, with (not pictured) FBI Director Christopher Wray, National Security Agency Director Gen. Paul Nakasone and National Geospatial-Intelligence Agency Director Robert Cardillo testify before the Senate Intelligence Committee on Capitol Hill in Washington Tuesday, Jan. 29, 2019. AP Photo/Jose Luis Magana 1. Introduction

To understand the US intelligence community and the seventeen com- ponents1 comprising it, one must study the collective as an enterprise that gathers intelligence, conducts all-source, non-policy prescriptive and objective analysis which it disseminates and briefs to policymakers. The underlying force behind the intelligence enterprise consists of three parts; its workforce, the private firms that support that workforce through intelligence-driven contracts2 and the context upon which these two interplay. Only then does the complexity of this arm of the national security apparatus come into focus.

This paper offers a descriptive and a prescriptive narrative that provides context on the where we’ve been on the evolution of the government-industry relationship and postures on the where we must go to remedy the concerns outlined herein of this duality. As such, the paper highlights key succinct episodes of American history that shed light on the foundational elements of intelligence gathering through three phases; informal and singular relationships, quasi-governmental networks, and the transforma- tion of the former to the modern commercial industry. Throughout these stages, it becomes evident that the reliance of the US government on private entities grew during internal and foreign wars as did the blurred lines of who should do what and under whose authority. The primary underlying theme that emanates throughout the paper is the realization that while the National Security Act of 1947 was established to codify the loose threads

1 The author stresses that there are seventeen intelligence components vice agencies of the United States, to include five whose principal mission is to produce intelligence; the others augment the principal five organizations with the caveat of the Federal Bureau of Investigation which is a hybrid. These components comprise the Office of the Director of National Intelligence, the Central Intelligence Agency, the Defense Intelligence Agency, the National Security Agency, the National Geospatial Agency, the National Reconnaissance Office, the Army Intelligence and Security Com- mand, the Office of Naval Intelligence, the Marine Corps Intelligence Activity, Air Force Intelligence, the Department of Energy’s Office of Intelligence and Counterintelligence, the Department of Homeland Security’s Office of Intelligence and Analysis, the U.S. Coast Guard Intelligence, the Drug Enforcement Agency, the Department of State’s Bureau of Intelligence and Research and the Department of Treasury’s Office of Intelligence and Analysis. 2 The United States Intelligence Community breaks down contracting into two spheres, core and non-core. The core contracting system relies on companies in the private sector who provide contractors to support the government in a variety of roles, which this paper outlines in subsequent pages. The non-core contracting base conducts services that has no direct role on mission or operational equities. These roles include but are not confined to providing custodial, food and like services. The non-core contractors are uncleared. Additionally, further nuance distinguishes between contractors who produce commodities such as collective equipment, such as RPVs, work stations, vice contractors who provide Systems Engineering and Technical Assistance to augment the government’s workforce.

Belfer Center for Science and International Affairs | Harvard Kennedy School 1 of intelligence collection, especially after the failure of US intelligence to foresee the attack on Pearl Harbor; what has transpired is a return to the loosely governed intelligence structure emphasized yet again by a lack of demarcation of what does and does not constitute core governmental functions, limited oversight and accountability, decision-making authority and a pronounced outsource culture. At no time in US history, the paper suggests, does this aspect of the government-private sector partnership get lost in translation than following the terrorist attacks of September 11 and the dizzying number of civil liberty and human rights violations accompa- nying it.

Today, the cottage industry as it has become, outsourcing has shown its ugly face with serious lapses in responsible behavior. Inversely, any lapse in policymaking would be considered equally irresponsible. While there is no doubt that as outsourcing continues to nourish and flourish private industry, there is likely to be less oversight because Congress is over- whelmed by the sheer enormity of privatized intelligence functions, not to mention longstanding issues facing congressional committees such as staffing shortages to conduct effective oversight. As such, noting this trend, the for-profit private industry will continue to reap the rewards of a policymaking establishment it considers weak.

The purpose of the paper is not to suggest that outsourcing has no place in the role of government; to the contrary, the paper argues the elements of these two spheres have morphed into this modern strand of DNA which cannot be undone but to the point, DNA functions within the confines of the right environment as should outsourcing under straightforward regulation. The privatization of intelligence cannot be allowed to function in a vacuum and inadequate oversight must be called out to avoid further exploitation by industry.

The author fears that this debate will resurface in the face of the subsequent crisis when both sides will seize another blame-game opportunity while leaving core issues unresolved. Consider then that the consequences could not be staring us down any harder if the call to privatize our current wars does take shape.

2 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence 2. The Intelligence Enterprise— The Beginnings

Much of the historical narrative focuses on the intelligence enterprise and its reliance on the private sector as it came to exist following the National Security Act of 1947. In fact, from its formative years to the present, the historical dimensions of intelligence contracting in the United States suggests that it “gradually developed from alliance based intelligence sharing and ad-hoc individual agreements into the increasingly private and corporate companies of today.”i As such, we must begin with the journey of Colonial America and recognize at the outset that “the competitive edge—during the earliest days of European conquests in North America—lay not with num- bers but with building alliances, strategy, and execution.”ii Even while Native Americans were decimated before uprisings took root when the Spanish first arrived in the Caribbean, Native Americans “acted as a spoke of the wheel”iii of rivalry between the British, French and American Colonists in North America. Conditions would prove ripe in this environment for cementing alliances and gathering intelligence as dissent increased.

Colonial Alliances

History reminds us that, in fact decades prior to the US War for Independence, George Washington, the Governors of the British colonies and the French understood the importance of leveraging Native Americans and forming alliances to gather intelligence and to outcompete each other. It is important to note that Washington had experienced and learnt much during events leading up to and during the French and Indian War; for instance, he knew that dealing with Native Americans—who had previously succumbed to both British and French hospitality—would necessitate that he handle relations with care. Early in his military career, Washington, at the command of Robert Dinwiddie, the Governor of the Royal Colony of Virginia, was sent to deliver a message to the French Commander, asking him to leave lands claimed by England. En route, Washington used diplomacy to maintain tribal alliances and ensure their allegiance to the English.

Belfer Center for Science and International Affairs | Harvard Kennedy School 3 “Brothers, I have called you together in Council, by Order of your Brother the Governor of Virginia, to acquaint you that I am sent, with all possible Dispatch, to visit, and deliver a Letter to the French Commandant, of very great Importance to your Brothers the English; and I dare say, to you their Friends and Allies.

I was desired, Brothers, by your Brother the Governor, to call upon you, the Sachems of the Nations, to inform you of it, and to ask your Advice and Assistance to proceed the nearest and best Road to the French. You see, Brothers, I have got thus far on my Journey. His Honour likewise desired me to apply to you for some of your young Men, to conduct and provide Provisions for us on our Way, and be a Safeguard against those French Indians who have taken up the Hatchet against us. I have spoke this particularly to you, Brothers, because his Honour our Governor treats you as good Friends and Allies, and holds you in great Esteem. To confirm what I have said, I give you this String of Wampum.”iv 3

“The [French and Indian] war both provided Washington with valuable military experience and shaped his perceptions of the relationship between the colonials and the British.”v Washington’s early peacekeeping operations would also prove to be instrumental during the formative years of the United States and would morph informal alliances into complex spy networks over the next century.4

Because a justifiable trust deficit existed between the Indian tribes and their European conquerors, the British and the French understood that to

3 The history of wampum or shell beads is rich in the native American tradition. Strings of wampum were utilized in different capacities by native American tribes; for some tribes, it symbolized episodes of history, status, an alliance, a promise or a feat while other tribes used it to exchange messages, mark ceremonies such as official treaties or other significant events. Wampum would become a prized commodity for bartering with European Colonists. 4 The author is reminded of another simultaneous colonial competition between the British and the French and it concerns South Asian Indians. Here too, the British East India Company and the French East India Company initially competed in the name of trade. It is important to note that the Portuguese had already established themselves on India’s West Coast and the French in Southeast India with the Dutch East India Company and the Danish East India Company also controlling trade on the subcontinent. While the British were late to the game and a host of internal political factors in India eventually led to Britain’s overall control of India, both the British and the French resorted to using intelligence and cultural competence in running a campaign of winning the hearts and minds of local rulers and sowing dissent amongst each other’s rival groups. This culminated to the famous Battle of Plassey whereby the British defeated the Nawab or ruler of Bengal despite support from the French military.

4 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence build relationships—let alone acquire and sustain receiving information— one would need to provide assurances and act reciprocally through kind towards the Indian tribes. As such, Washington, in correspondence with various Colonels, Commanders and Governors of British forces in America suggests the significance and long-term gain of employing such strategy,

“As I shall have frequent communications with the Indians, which are of no effect without wampum, I hope you will order some to be sent. Indeed, we ought to have shirts, and many other things of this sort, which are always expected by every Indian that brings a message, or good report. Also the chiefs, who visit and converse in council, look for it. If it would not be thought too bold in me, I would recommend some of the treaty goods being sent for that purpose…this is the methods the French pursue and a trifle judi- ciously bestowed, and in season, may turn to such advantage. I think were the goods sent out, and delivered occasionally, as you see cause, that four or five hundred pounds’ worth would do more good, than as many thousands given at a treatyvi vii

Scholars contend that cultural understanding, to include the exchange of gifts had become an essential element in European-Native American diplomacy. Understandably, the utility of Native Americans by the British and the French throughout the Colonial period was built upon gradual confidence building measures. The British Representative to the Five and later Six Nations5 William Johnson would master the craft in the name of economic expediency or trade, namely fur. One would be remiss to not acknowledge that Johnson, as the historic narrative suggests, grew to genu- inely admire the Indian tribes and Johnson’s cultural competence and basic human decency further affected the ongoing relationship with the Iroquois Indians. This would not be short-sighted in the least. David Igneri, in his study of Indian affairs and the outcome of the French and Indian war, cites the famed publisher and author William Leete Stone who reflects on Johnson’s immersion in Native Indian tradition(s):

5 The Six Nations was a confederation of indigenous Americans who spoke lroquoian. The tribes in- habited what now comprises New York. The Six Nations were known as the Five Nations and made up of Mohawk, Onondaga. Cayuga, Oneida, and Seneca Native Americans. The North and South Carolina War of Tuscarora, the Tuscaroras- moved northward (they also spoke lroquoian), thus the change from the original Five Nations to six. Because all comprising the Six Nations spoke the Iroquoian language, the Nations were all generally regarded as the Iroquois.

Belfer Center for Science and International Affairs | Harvard Kennedy School 5 ‘It has already been noted, that it was Mr. Johnson’s policy to cultivate an intimate acquaintance with the Indians. Being largely engaged in commerce with them, his facilities to that end were great: and no white man perhaps, ever succeeded in more entirely winning their confidence. He mingled with them freely: joined in their sports; and at pleasure assumed both their costumes and their manners and cast them aside, as circumstances might require. He was consequently fast gaining an ascendency over them upon which the French looked with exceeding jealousy.’viii

Johnson’s continued interactions with the Indian tribes were admired by the British as much as they were respected by the Indian tribes. This led to Johnson’s promotion to Superintendent of Indian Affairs in 1755 as he continued his strategic efforts to retain Indian loyalty to the British. In fact, Johnson in May of the same year wrote to Governor Shirley of Massachusetts and asked that Indians be hired on a fixed sum depending on the degree of the duty.

“I am intirely of your Opinion with regard to the Indian Officers, and will lose no time In pressing the several Govenmts concern’d forthwith to make the needfull Provision for their Pay in the manner propos’d by you; as also for defraying the Expense of engaging and maintaining the Indians in the English Interest by fix’d Funds, and giving you an absolute Power to draw upon them for that Service according to their respective proportions: which is doubtless necessary to be done.”ix

This is a remarkable similarity with how vendors and their employees are hired across the IC for their services based on a fixed sum. Several efforts during the colonial period tried to utilize this method of gathering information through fixed funding. Governor William Shirley of Massachusetts even tried to hire Native American scouts on a per diem basis and form them into a more or less Western military companies.x Besides providing salaries and equipment for the Iroquois, the New York General organized “the Indians into Companys of 100 men each.”xi Those who were deemed interpreters among the Indians, took “care of them in all respects, besides doing their Duty as officers.”xii

6 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence The idea of utilizing Native Americans on a per diem retainer may have developed out of the need to establish a more formal payment system. After all, receiving highly valuable information would have had to be reciprocated with a sizable sum and the generous sum would need to be based on a certain threshold. For instance, “William Johnson paid fees of £10 per enemy adult scalp and £5 per child scalp to Native American warriors. The bigger the catch—killing French officers, burning a powder magazine, and particularly important intelligence captures—allowed for larger bonuses.”xiii xiv

Comparable to today’s discussions on the utility of hiring outside help, similarly, there were disputes about the integrity of hiring, training and utilizing outsiders for collection vice utilizing insiders. This continues to be a longstanding concern of the IC and its utility of private companies to provide information instead of providing training to internal staff. Nowhere was this most reflected than in Robert Rogers’ militia force in 1758, which became an indigenous and self-sufficient force and also came to be known as Robert’s Rangers.

A unique core of 600 frontiersmen who successfully adapted Indian techniques to their fighting, Robert’s Rangers emphasized self-sufficiency, courage, stealth and methods of camouflage. Conducting numerous raids, scouting enemy positions, Robert’s Rangers gained a reputation as the most colorful unit in the British- American armyxv

Reflective of the Intelligence Community’s partnerships with for-profit private companies today and the competition with the IC associated with such alliances for a bigger share of the market, so too did colonial expansion by the British and the French allow for competition between the two powers to consolidate the economic power of the colonies. As such, British, French and American relationships with Native Americans extended to economic contracts in addition to the self-serving political alliances. These alliances and networks began to resemble today’s private intelligence companies and the benefits of such alliances extended to provide protection. For instance, when newspapers took note of Native American requests from the colonies to supply troops to drive out the French, papers made a point of noting

Belfer Center for Science and International Affairs | Harvard Kennedy School 7 British support to the cause and for the welfare of Indian families as a way to further influence alliances.

Newspapers told how Native Americans were brought into colonial forts and settlements in Pennsylvania, Maryland, and Virginia,” Maryland even set aside six thousand pounds (approximately six hundred thousand current dollars), in part “for the Relief and Support of the Wives and Children of our Indian Allies.”xvi

American colonists would seek Native American assistance to stop French aggression. “Demonstrations of British military power, and aid for friendly Native Americans all played a part in the strategic plan.”xvii Comparably, US Contractor-provided financial support of Afghan and other foreign nationals (in some respects, mercenaries) requesting the US government for resources to drive out the Taliban resulted in cementing some networks, albeit tem- porary, to accomplish the mission at hand. Also, much like the efforts of the British to utilize print media to win the hearts and minds of Native Americans, so did the US and the international coalition in Afghanistan use local Afghan media to fight terrorism, convey the progress of US and allied-supported Civil Affairs in the country and encourage a pro-Afghan government, all part of strategic efforts to win Afghan hearts and minds.

While the utility of print media to build alliances and sow disinformation during Colonial America was not new, it would come at a cost, especially as increasingly unpopular British taxation policies— characterized by the Sugar Act in 1764, and soon thereafter, the Stamp Act of 1765—would have enormous consequences. One of the many newspapers that would be shut down as a result of the Act, The Pennsylvania Journal and Weekly Advertiser, issued its memorial edition to protest the tax encroachment, informing viewers of its expiry and that it sought a ‘refurrection [resurrec- tion] to life again’.xviii As “discontent flared in the American colonies, both the British and the American colonists quickly also resorted to the use of spies. The American cause was assisted by the birth of several secret societ- ies, the best known being the Sons of Liberty, which was formed during the same year to oppose the Stamp Act. The organization served as an under- ground network that extended throughout the colonies and sometimes resorted to violence to emphasize resistance to British policy. On the other

8 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence side, Loyalists kept the King’s officers informed about the conspiracies undertaken by their neighbors.”xix

The degree to which alliances forged amongst Colonists to counter British policies established trust and allowed for informal intelligence networks to gradually formalize and expand, so too it should be noted that neither the British, the French nor the Colonists—leading to the American Revolution— would have been successful in their respective efforts without alliances with Native Americans who provided invaluable intelligence that served each party’s respective interests prior to and following the American Revolution.

During the American Revolution, we move away from ad-hoc alliances to a more structured for-hire individual and network-based outsourcing and the utility of operations through foreign associations.

The American Revolution would find its future first President and other luminaries like Benjamin Franklin and James Lovell as genuine spymasters who would utilize spy craft akin to modern intelligence tradecraft; upon taking command of troops “besieging the British in Boston on July 2, 1775, he [Washington] began building a network of spies. In fact, the first substantial expenditure entered in the account book he kept throughout the war (for $333.33) was for an agent ‘to go into the town of Boston to establish secret correspondence for the purpose of conveying intelligence of the Enemys movements and designs.”xx Later that year, Benjamin Franklin’s Committee of Secret Correspondence6 recruited paid agents in London and at The Hague to study the foreign mindset towards the US and any perceived threat as a result of it; while “Agent Arthur Lee for instance was paid £200 for the effort, his work with French agent Pierre- Augustin Caron de Beaumarchais”xxi set up the first of its kind covert operation; “Beaumarchais’ alias was Roderigue Hortalez to allow covert French financing of the war with the initial amount of one million livres

6 Accessed online at www.cia.gov. Posted online on October 27, 2011. The Committee of Secret Cor- respondence had wide-ranging duties abroad. It conducted covert operations, devised codes and ciphers, employed operatives, funded propaganda, acquired foreign publications for use in analysis, authorized the surreptitious opening of private mail, established a courier system, and developed a maritime capability distinct from that of the Navy. The Committee functioned alongside two other intelligence-related groups: the Secret Committee, which was formed in September 1775 and was responsible for obtaining military supplies, and the Committee on Spies, created in June 1776, for counterintelligence activities.

Belfer Center for Science and International Affairs | Harvard Kennedy School 9 from the French government in June 1776…by 1783, the company had engaged in 42,000,000 livre worth of business.xxii The Culper spy ring, meanwhile, formed in 1788 also ran an intelligence gathering network “in British-occupied New York City and managed by militia officers under Washington’s command using civilian auxiliaries as collectors, who were paid for services as required.”xxiii

Understandably, like any revolution, it’s survival and sustenance rightfully depends on collection of intelligence and the funds appropriated to do so. As such, even after independence, “the first appropriation approved by Congress—on July 1, 1790—provided President Washington with a ‘Contingent Fund of Foreign Intercourse’ that was obviously to be used for secret diplomacy. There can be no other explanation for the provisions authorizing the President to account for funds expended by voucher without revealing either ‘their purpose or to whom the money was paid.’ The secret service fund amounted to forty thousand dollars in 1790; within three years, it had grown to one million dollars; or about twelve percent of the national budget.”xxiv

No doubt, spies, double agents, counterintelligence and covert operations played a significant part in the War for Independence, but it also fore- shadows the gray area of who and under whose authority, blurry lines that remain as concerning today as during the revolutionary period.

The next epoch of contracting intelligence would become more clearly defined during the Mexican-American War; in fact, we see a move from individual entities exercising in intelligence gathering to a more formal approach with the establishment of independent organizations.

10 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence The Shift from Singular to Modular Intelligence Contracting

When faced with the reality of Mexican forces and bandits who controlled the road networks during the Mexican-American War which prevented Lieutenant Colonel Ethan Hitchcock from gathering intelligence from American outposts, Hitchcock decided to hire them. He arranged for the parole of a Mexican bandit in his custody, to whom he offered freedom in return for his assistance to the US Army. Hitchcock under the aegis of General Winfeld Scott created which history would later call ‘the spy company’ with Dominguez as his chief. Hitchcock, in his journal, writes of Dominguez:

“I have taken into service a very extraordinary person -- a Mexican, rather portly for one of his profession, but with a keen, active eye and evidently ‘bold as a lion’ or an honest man. He has been a very celebrated captain of robbers and knows the band and the whole country. I have engaged him to carry a letter to the commanding officer at Jalapa, and if he performs the service faithfully, I shall further employ him… Through this man I am anxious to make an arrangement to this effect: that, for a sum of money yet to be determined, the robbers shall let our people pass without molestation and that they shall, for extra compensation, furnish us with guides, couriers, and spies.”xxv

At the rate of a $20 monthly stipend for most, even though Dominguez was paid three dollars per day and some others two dollars, the Spy Company evolved into a 100+ man organization.xxvi “The Company served as spies, couriers and operatives, on one occasion even capturing three Mexican Generals.”xxvii This approach, common to the modern contractor, continues to be utilized by the US intelligence community in global hotspots where trained ‘off the shelf’ and not very nice guys assimilate in and out of the local population to achieve the objective. For instance, as of fall 2001, Operation Enduring Freedom was in full force in Afghanistan and when special operations forces descended upon major Taliban controlled cities, Kandahar made the list. Luckily, the former Governor of Kandahar, Gul Agha Sherzai, an anti-Taliban warlord would not only become a key US ally in the fight to drive out the Taliban but his savvy business skills would render a local network with the aim of feeding intelligence to US

Belfer Center for Science and International Affairs | Harvard Kennedy School 11 armed forces. Author Anand Gopal in his book on reliving the Afghan war through Afghan eyes suggests that with Sherzai’s services, the Kandahar Airfield (KAF) for instance, “blossomed into a massive, sprawling military base and grow into a key hub in Washington’s global war on terror, housing top-secret black-ops command rooms and large wire-mesh cages for terror suspects en route to the American prison in Guantanamo Bay, Cuba.”xxviii This would mark the beginning as Sherzai turned an arid landscape into an area booming with American installations. “He swiped land and rented it to U.S. forces to the tune of millions of dollars.”xxix

As Sherzai’s influence grew, Gopal adds, “he began providing the Americans with hired guns, usually from his own Barakzai tribe—making him in essence, a private security contractor, an Afghan Blackwater. Much like the infamous firm, Sherzai’s gunmen lived largely outside the jurisdiction of any government. As Washington pumped in funds to create a national Afghan army and police, the U.S. military subsidized Sherzai’s mercenaries, who owed their loyalty to the governor and the special forces a l on e .” xxx

Keeping this example in mind, incredibly, the band of thieves comprising the Spy Company—perhaps the first foreign private army recruited by American intelligence—proved no less loyal and successful as modern intelligence gatherers and spies.

Not until after the US Civil War would we see another important step in the evolution of the modern contractor driven intelligence apparatus. Native American Scouts would again be utilized during this time for the Army’s frontier operations. In fact, Congress in 1866 “formalized the hiring of nongovernmental Native American augmentees to perform military scouting missions and intelligence-related services. Similar to contractors today, they “were assigned under short-term contracts to the Quartermaster Department and generally classified as ‘laborers,’ without formal rank or position of direct authority over troops.”xxxi The relative success of leveraging Native Americans and the Pinkerton firm in the 1860s gave rise to the US government’s use of detective agencies for the purpose of collecting intelligence. “After the war, during the 1870s and 1880s, government and businesses employed detective agencies to perform both

12 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence domestic and foreign intelligence functions. Secretary of State Hamilton Fish, for instance, hired the Pinkertons to track pro-Cuban revolutionary sentiment in the United States and prevent any illicit aid by Americans to the Cuban rebels.”xxxii

The increasing reliance of the government on private firms such as Allan Pinkerton’s Detective Agency is best illustrated by General James Weaver in 1892. As member of the newly formed Populist Party, Weaver warned that industrial oligarchs had “grown to be stronger than the government; and the army of Pinkertons, which is ever at their bidding, is greater by several thousand than the standing army of the United States,” which meant that “instead of the government controlling the corporations, the latter dominate every department of State.” A new political party was necessary because Congress seemed “bent on farming out its sovereign power to individuals and corporations.” In their 1892 political platform for Weaver’s presidential campaign, the Populists declared that “we regard the main- tenance of a large standing army of mercenaries, known as the Pinkerton system, as a menace to our liberties, and we demand its abolition; and we condemn the recent invasion of the Territory of Wyoming by the hired assassins of plutocracy.” Only a direct intervention by a state that repre- sented the interests of the people could limit such plutocratic powers.xxxiii Following public outcry, Congress restricted government contracts with “Pinkerton Detective Agencies or similar organizations.” The statute to this day remains part of the Federal Acquisition Regulation 37.109 and “pro- hibits government contracts with “quasi-military armed forces.”xxxiv

Such episodes of intelligence gathering and the sentiment they aroused throughout this period further solidified as well as raised concerns regarding the intelligence-private industry relationship. By this time, intelligence collection began to emerge as an institution in its own right, especially because the business of espionage was soaring. Additionally, “these private companies became institutions that lasted beyond any one conflict’s duration. Pinkerton’s detective company existed independently until 1999 when it was brought by the Securitas Group. It is still operating under the latter n am e t o d ay.” xxxv

Belfer Center for Science and International Affairs | Harvard Kennedy School 13 The author would be remiss to not mention how the advent of technology during this time propelled the tradecraft of intelligence to unprecedented intricacy. Certainly not to be confined to the birth of modern journalism, “the spate of inventions and innovations—the quadruplex telegraph (1874), the typewriter (1874), the telephone (1876), the decimal classifi- cation system (1876), fingerprinting (1877), photoengraving (1881), the Bertillonage biometric system (1884), the adding machine (1885), punch cards (1889), and roll film (1889)—that revolutionized cultural conditions and transformed statecraft: ‘Instead of compiling mute lists for purposes of taxation and conscription, the state now had the political intelligence with which to identify individuals and surveil groups deemed subversive, amassing incriminating information and monitoring movements’. This information revolution created a powerful new information infrastructure, ‘a global information regime that allowed fast transmission and accurate processing of almost limitless quantities of textual information’. These changed conditions revolutionized administration and record keeping across government and industry… and modernized policing with new methods of communication (integrated telegraph/telephone call box systems), tracking (fingerprinting, Bertillonage biometrics, and increasingly inexpensive photography), and file management.xxxvi This technology revolution was now part of state architecture and allowed it to function no less a domestic spy state. In fact, during the Civil War, photography and teleg- raphy were instrumental spy tools for both the Union and the Confederacy. Identification of infiltrators into the Union Army by photos became so successful that “Confederates attempting to infiltrate a unit were advised to never appear in any photographs.”xxxvii A century later, the debate would resurface on the utility of commercial satellite imagery as a tool to collect domestic and foreign intelligence.

As private intelligence companies formed, so at times did their role become blurry and that debate continues today. As alluded to previously, this became most evident during the early twentieth century and through the World Wars. With fear of ‘the other’ prevalent in US foreign policy from the earliest days of the country’s formation, so did this reflect the demand

14 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence for counterintelligence, though initially through efforts utilizing the public.7 In 1862, organizations like the “Loyal League of America” and other types of vigilance associations supported intelligence—such as the American Protective League (APL) which were considered pseudo-governmental. “In fact, the League’s investigators in the field carried Department of Justice credentials and worked hand in hand with the Army’s Military Information Division on cases. The league went so far as conducting its own raids in Gary, Indiana, capturing suspects and then turning them over to courts com- posed of military intelligence officers and local police.”xxxviii But like many other such organizations of the time which lacked a true sense of substance and were motivated by patriotism, they crossed the lines of civil liberties and committed other violations. As such, the League’s powers were revoked and its importance faded.

The ravage of wars can leave a nation in despair, with increasing crime, unemployment and other ills; this was the case following WWI. After an attempt on the life of Attorney General Mitchell Palmer in 1919, the continuing theme of fear of ‘the other’ resurfaced and was further promul- gated by Mitchell as a convenience for advancing his career. With the press fomenting the fear of foreigners and especially Bolshevism, Mitchell used this opportunity and “obtained $500,000 appropriation from Congress and established an anti-radical General Intelligence Division (GID) within the Department of Justice’s Bureau of Investigation.” J. Edgar Hoover, who would be the first Director of the Federal Bureau of Investigation, was appointed to lead this effort. The APL resurfaced and “GID agents infil- trated the Socialist and Communist parties, the Industrial Workers of the World, and the American Jewish Congress. Hoover, who had once been an indexer at the Library of Congress, established an elaborate 200,000 card file containing detailed information on every known radical organization and publication. By late 1919, this index contained the names and case his- tories of some sixty thousand people alleged to be dangerous subversives.”

7 The Committee (later, a Commission) for Detecting and Defeating Conspiracies was the first patriot organization created for the purpose of conducting counterintelligence. It was made up of a series of groups established in New York between June of 1776 and January of 1778, with the primary goal collecting intelligence, apprehending British spies and couriers and suspected British sympathizers. In effect, there was created a “special service” for New York which had the power to arrest, to convict, to grant bail or parole, and to jail or to deport. A company of militia was placed under its command to implement its broader charter. Source: Collections of the New York His- torical Society For the Year 1924. LVII. Minutes of the Committee and of the First Commission for Detecting and Defeating Conspiracies in the State of New York. December 11, 1776-September 23, 1778. Accessed online at: https://archive.org/details/minutesofcommitt571newy/page/n5

Belfer Center for Science and International Affairs | Harvard Kennedy School 15 The APL comprised a vast network with national branches numbering over one hundred and “said to have 350,000 operatives.”xxxix

It is important to note that technological inventions of the nineteenth century discussed previously by this time had waned in and out of the government’s control because the government found them to be too costly to operate versus the profits they generated. As such, the telegraph for instance would become commercial as was the case when Samuel Morse, facing similar challenges from the government formed his own company. The State and War Departments would later rely on the services of these companies to collect intelligence as they had developed special arrangements with the commercial enterprise. Despite the funding cuts that followed federal institutions after WWI, these governmental arrangements with the private sector came in handy. The breaking of codes and ciphers seemed to continue unabated, thanks to the efforts of the famed Cryptologist Herbert Yardley, who formed the Black Chamber “to be on par with other nations and that ‘in no other manner could the United States obtain an intimate knowledge of the true sentiments and intentions of other nations’ and that we were to read the secret code and cipher diplomatic telegrams of foreign governments—by which means as we could.’” Yardley would ensure that “everyone was placed on a secret payroll with Yardley receiving $7500 annually.” Over a decade in existence, “the Black Chamber solved over forty-five thousand coded messages and broke the codes of twenty nations, including France, Britain, the Soviet Union and Japan.” The Black Chamber’s incredible success would continue even though the incoming Hoover administration’s Secretary of State Henry Stimson ordered that financing for this operation cut immediately due to its immorality. After all, it is Stimson who is said to have stated that, Gentlemen do not read each other’s mail. The organization renaming itself went undercover, continuing as “the Signal Corps unit of the Signal Intelligence Service.”xl

The next few decades leading to WWII would strengthen the still emer- gent relationship between the private sector and the State at large. Two noteworthy historic references come to mind. Archived records from the Franklin D. Roosevelt Presidential library reveal that Vincent Astor, the son of John Jacob Astor IV, who perished in the Titanic, would become

16 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence a trusted confidant of President Roosevelt and how through this unique relationship, Astor would become perhaps the President’s most valued intelligence official outside official channels. Astor’s relationship would grow especially after the President was stricken with Polio and Astor welcomed Roosevelt to use his indoor heated pool for relaxation of the President’s polio-stricken legs. Astor, along with Kermit Roosevelt or Theodore Jr., among others, were connected to an organization Astor had begun secretly in 1927 known as the “ROOM”. “The ROOM comprised twenty wealthy and well-connected men, including Winthrop Aldrich, Marshall Field III, David Bruce, the would be Ambassador to the UK and China, C. Suydam Cutting, Andrew Mellon’s son-in-law and David K. E. Bruce, would be Ambassador to France, Germany and the UK. While FDR was not a member of the ROOM, he knew of most of them due to their cruises together on Astor’s yacht, the Nourmahal. Astor and Kermit offered ROOM’s services to the President as a private intelligence network. This network would yield invaluable intelligence on belligerents and the neutrals during the impending WWII, and Astor would use his position as Director of Western Union to intercept cable traffic sent by Axis agents to Latin America. Aldrich, in his capacity as Director of the Chase National

Belfer Center for Science and International Affairs | Harvard Kennedy School 17 Bank, supplied the President with data on the account of Amtorg, a Soviet trading company and espionage front.”8 xli

8 Archived documents provided by the digital curators of the Franklin D. Roosevelt Presidential Library reveal the incredible details of one of the secret meetings of the ROOM on May 27, 1941; “Vincent Astor, the fifty year old, fifth generation Land-Lord of New York and one of the wealthiest men alive, was about to meet with representatives of the F.B.I., the U.S. Army’s Military Intelligence Division, and the Navy’s Office of Naval Intelligence to discuss defending New York from Axis sabotage, espionage, and military offensives in the months before America’s entry into World War II. Two months earlier President Franklin D. Roosevelt had created a new position specifically for him and Astor had promised his life-long friend and Dutchess County neighbor that ‘In this job I shall do my very best.’

Astor, as Area Controller of Intelligence for New York, brought the six other men to order and the meeting was underway. Names and dossiers of intelligence sources and informants were ex- changed by the various agencies, briefings on supplies of food and fuel necessary to England’s war effort were made, and information on potential threats were disclosed, for this was Astor’s primary duty: make all intelligence operations in New York run as efficiently as the many business ventures the multi-millionaire had managed. Next he made arrangements for the Navy and Army to discuss the Axis’s finances with a representative of the American Express Company who had recently re- turned from the Nazi puppet regime in Vichy France. By 1130 that morning, Astor’s office had emp- tied and he resumed his civilian duties of managing a vast business empire which included Chase National Bank, Western Union Telegraph Company, and entire blocks of New York real-estate. He would have to remember to review the Chase bank accounts of the AMTORG Corporation to note what military materials the Russian government was purchasing; particularly molybdenum, which was used in tank armor and when shown to the right military personnel, would give the President a good sense of Russia’s military strength.

Astor’s global business connections in banking, telecommunications, and shipping made him uniquely useful to the President. Without these connections Astor, an inactive Commander in the Naval Reserve, surely would not be coordinating America’s intelligence agencies while the nation was not even at war.

For some time the multi-millionaire had been providing housing in his luxurious Hotel St. Regis to England’s head of intelligence in North America, William Stephenson and had been using Ferry Reach, his estate in British held Bermuda, to illegally access international diplomatic messages. Just twelve days earlier, on May the 15th, Astor and Admiral Adolphus Andrews of the Third Naval District had hosted envoys from the navies of South and Central American aboard Astor’s palatial 263 foot yacht Nourmahal. Armed with movie stars, beautiful women, and Astor’s tremendous wealth, America’s alliance with Latin America had been further cemented. Three years earlier, Astor had sailed that same ship through the pacific with Kermit Roosevelt to gather intelligence for FDR on Japanese defenses in the Marshall Islands. Of course his fondest memories aboard the Nour- mahal, were not related to America’s defense, but centered on the five fishing cruises he spent with the President.

As he had done in World War I, when he hunted German submarines aboard his yacht the Noma, Astor wished to strike at the enemy, and again Astor’s business ventures afforded him the opportunity. In the Newsweek Building, Astor’s 43 story skyscraper at 444 Madison Avenue, Astor lent room 629 to his friends in the FBI. From this specially equipped room the FBI was monitoring the offices of William Sebold’s “Diesel Research Company” in rooms 627 and 628. The ”Diesel Research Company” was a front used by the Abwehr, Nazi Germany’s military intelligence agency, to distribute funds to secret agents in America. Unfortunately for the Nazis, William Sebold was a double-agent working with the FBI. Astor took solace in the fact that even now the FBI was using state of the art listening devices and hidden cameras to record the meetings between Sebold and thirty three Axis spies, including Fritz Duquesne the Nazi’s head operative in North America. Soon a crippling blow would be dealt to the Axis fifth column in America and New York would be safe from the German sabotage attacks that had shocked the city during the First World War.”

18 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence Similarly, in 1941, following FDR’s establishment “of an irregular intelligence and research operation in the White House, the President utilized the journalistic cover of John Franklin Carter who had connections with American corporate executives who could provide information about conditions in Axis countries where they had plants and offices. Roosevelt financed Carter’s operation with secret funds, and ultimately the journalist deployed a staff of more than a hundred people working completely outside established intelligence channels.”xlii

With the beginning of World War II, the intelligence business began to rely more heavily on private industry. Historian Richard Harris Smith characterized the relationship best when he describes the atmosphere when President Franklin D. Roosevelt established the Office of Strategic Services, predecessor to the Central Intelligence Agency.

“Corporations were more than generous in loaning their executives and resources for OSS service…In fact, the corporate spirit perme- ated the executive offices of [OSS Chief Major General William] Donovan’s headquarters. To the general amusement, a blue ribbon committee of OSS executives, uneasily chaired by liberal public opinion pollster Elmo Roper, recommended that Donovan’s nest of spies and saboteurs be restructured like a holding company.”xliii

By the end of WWII, “contractors were behind some of the biggest intelligence successes of the war (like the allied ability to continue to read Enigma traffic in a timely fashion). And so, at war’s end, intelligence contractors had secured a more permanent place in the intelligence community.”xliv

The Cold War duality set in quickly after the end of WWII and further cemented the government-private industry relationship, “where certain companies became almost synonymous with the fields of intelligence. For example, it is impossible to describe Cold War imagery intelligence without referencing Lockheed Martin’s Advanced Development Projects Unit, the famed ‘Skunk Works’. The facility, in collaboration with the Central Intelligence Agency, produced many intelligence platforms of the Cold War and today—including two of the workhorses of the imagery intelligence community; the U2 and SR-71 spy planes.”xlv Additionally, recall that “as early as the late 1940s, the signals intelligence community had

Belfer Center for Science and International Affairs | Harvard Kennedy School 19 agreements with Western Union, AT&T and other communications companies, allowing them to listen in on phone and telegram communications. More than simply providing access, however, the private sector provided the tools needed to collect and process signals intelligence data.”xlvi

Due to fears of the worldwide communist threat as well as the critical failure of the nascent intelligence community to prevent Pearl Harbor, the National Security Act of 19479 allowed for the establishment of the Central Intelligence Agency amongst other federal institutions and oversight bodies. This ushered in a new wave of data, the sheer volume of which collected by the intelligence community naturally prompted the birth of intelligence consulting which “allowed firms to help streamline the inefficiencies of large intelligence bureaucracies”xlvii. A point for further reflection in Raphael Cohen’s work on the history of intelligence contracting suggests “perhaps the most interesting (but often overlooked) part of the history of contracting’s growth is how the intelligence community used consultants to check the analysis of the civil servants work. In an inverse of the traditional relationship (where civil servants supervise the work of consultants), the Presidential Foreign Intelligence Advisory Board—a group of private citizens appointed by the President to monitor the work of the intelligence community—ran a series of three studies in 1976, known as the ‘B-Team exercise.”xlviii The idea was to see if external experts would come to the same conclusion as intelligence professionals who produced intelligence estimates. Cohen adds that even though the failure of the experiment was confined to leaks and lack of diversity of thought, “the very idea that the United States would turn to outsiders—consultants—to check the work of civil servants, turned the cliché of selfless civil servant versus the profit hungry consultants on its head.xlix

Forty years later, one would have rightfully assumed that the IC’s strong and steadfast efforts during the cold war and following the collapse of the Soviet Union would be downsized given the existential threat to the US had been dramatically diluted. Certainly no one thought that the US government and the private sector would enter another new era; an unchartered territory of the increasing reach of private corporations and the test of civil liberties—all built upon the ugly face of 9/11 attacks and the global war on terror.

9 The National Security Act of 1947 was established on July 26 and created the National Military Establishment, the position of the Secretary of Defense, the Chairman of the Joint Chiefs of Staff and the Departments of the Army, Air Force and Navy.

20 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence 3. The Government and Private Industry: Post-9/11 Paradigm

Literature abounds about outsourcing intelligence to the private sector following the September 11 attacks and even about the inherent implications of risk therein. With the likes of traitors—Manning, Martin, Snowden and Winner—who often come up in recurring conversations about the degree of damage done to U.S. national security, this part of the paper addresses how the government has yet to seriously address much needed oversight on the business of intelligence contracting in the post 9/11 paradigm.

The government’s ever increasing reliance on private sector behemoths since 9/11 is rightfully deemed concerning because of the even blurrier lines of responsibility between those carrying out the duties of a government employee vice the work performed by a government contractor. Add to this the lack of substantive management over outsourcing intelligence and the pitfalls add up. The massive expansion of contractor support at the agency level also brings into question the degree to which commercial interests may influence government decisions, particularly as contractors increasingly perform core mission functions within these organizations.l This has contributed to leaks that have caused irreversible damage. It has also raised other concerns; Seemingly, the government has created an outsourcing environment that runs deep within the intelligence community (IC) and is difficult to control. Perhaps of greater concern is the fact that “corporate intelligence professionals from companies such as Leidos, Lockheed Martin, Raytheon, Booz Allen Hamilton, SAIC and others are thoroughly integrated into divisions throughout the intelligence community,’li which allows for input to policies favorable to advancing the interests of these companies a reality; the intended goal of utilizing private intelligence was to provide support to the IC, not to substitute IC-produced intelligence and certainly not to help private sector expansion. It is

Belfer Center for Science and International Affairs | Harvard Kennedy School 21 astounding that the government has limited, if any oversight10 on a vendor’s vetting procedures on subcontracting which clearly begs the question; how much information, if any is being compromised and influenced by foreign hands? Tim Shorrock, author of Spies for Hire: The Secret World of Intelligence Outsourcing astutely adds, “the reason I want to have government people doing the key intelligence work, is I want that person’s loyalty to be to the government they serve and us as a public and nation as a whole, and not to their shareholders as a company to make money. And I think that’s a problem…I am not saying that private spies are unpatriotic… but they have different motivations and different masters.”lii

Increasing privatization of intelligence also underscores the current challenges of the intelligence community. It has continued to suggest the gross shortage of desired skill sets required to fulfill mission essential positions despite the tens of thousands of intelligence professionals working across the IC and highlights that the government’s prospective talent pipeline is coming up short on much needed nuanced talent. The intelligence professionals within the government are not being utilized to their fullest extent to meet national security demands. The latter point reflects the ICs insular lanes where cross breeding of talent across boundaries within the same organization continues its gradual implementation post 9/11. It is also important to note that nearly twenty years following 9/11 attacks, the IC has had the opportunity to hire and internally train a new generation of talent to address shortages to circumvent the use of contractual staff.

As previously stated, the aim of this paper has not been to admonish the government’s use of private companies to gather information; there is a legitimate need to utilize the private sector for nuanced subject matter expertise positions, and the nexus between the IC and the private sector is likely to grow as described in the aforementioned section given the rich

10 While contractors are subject to identical clearance processes as government employees, the government does not have detailed oversight on the vetting processes of vendors who subcontract, often to foreign nationals, raising the level of risk of sensitive information being compromised by that government’s intelligence operative(s) working as contractors. To the point, Rajiv Chan- drasekaran who authored the 22 October 2009 Washington Post article titled In Helmand, A Model for Success? points out that, “subcontracting needs to be better supervised or even banned. In addition, more effort needs to go into ensuring that a wider spectrum of tribal groupings (especially from the Ghilzai tribal grouping, which provides the core of Taliban support) benefit from the contracting process to avoid the current perception of favoritism. Naturally, we need to have good enough intelligence on various key individuals to reduce the risks of Ghilzai contractors’ using their profits to fund the Taliban”

22 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence history of the two intertwined spheres. When faced with a grave shortage of linguistic expertise in the Afghanistan-Pakistan theater following 9/11 and the eventual global war on terrorism, it made sense to seek private sector assistance for language support or acquire technical expertise to combat online terrorist recruitment and strengthen cyber defense capabilities. However, the burgeoning intelligence community since 9/11 has done little to address issues that allow its increasingly millennial internal staff to be trained to carry out the tasks now being subcontracted.

The government must understand the gravity of how overreliance on private companies in the intelligence business weakens its own credibility and endangers national security. As the Chairman of the Senate Homeland Security and Governmental Affairs (HSGAC) noted: “First and foremost, an agency that turns over too much responsibility to contractors runs the risk of hollowing itself out and creating a weaker organization. The agency could also lose control over activities and decisions that should lie with the government, not with contractors.”liii Mitigating these risks involves agencies’ complying with and implementing applicable statutory provisions, regulations, definitions, and policies. Add to this, a return to utilizing the private sector for domestic intelligence collection. “Increasingly, giant telecommunications and information technology companies like AT&T, Verizon, and Google are legally compelled to collect and store data on their customers and were, according to an industry insider, providing total access to data in the context of the White House’s Terrorist Surveillance Program.11 The receptivity of the private sector to accept such under-

11 President Bush’s Statement on the White House Terrorist Surveillance Program at the Diplomatic Reception Room of the White House on May 11, 2006. The statement sums up the objective of and addresses concerns related to the controversial surveillance program: “After September the 11th, I vowed to the American people that our government would do everything within the law to protect them against another terrorist attack. As part of this effort, I authorized the National Security Agency to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. In other words, if al Qaeda or their associates are making calls into the United States or out of the United States, we want to know what they’re saying. Today there are new claims about other ways we are tracking down al Qaeda to prevent attacks on America. I want to make some important points about what the government is doing and what the government is not doing. First, our international activities strictly target al Qaeda and their known affiliates. Al Qaeda is our enemy, and we want to know their plans. Second, the government does not listen to domestic phone calls without court approval. Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat. Fourth, the privacy of ordinary Americans is fiercely protected in all our activities. We’re not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates. So far we’ve been very successful in preventing another attack on our soil. As a general matter, every time sensitive intelligence is leaked, it hurts our ability to defeat this enemy. Our most important job is to protect the American people from another attack, and we will do so within the laws of our country. Thank you.”

Belfer Center for Science and International Affairs | Harvard Kennedy School 23 takings by the government has “turned the private sector into a massive government surveillance and intelligence operation.”liv This brings about questions during the current debate; can the work of a contractor and the federal employee truly be delineated? Regarding previous attempts at oversight, won’t loopholes continue to exist given the vagueness of the threshold of work and duties as defined by the government? What can and what can’t the government regulate regarding commercial satellite imagery to prevent sensitive information from getting into the wrong hands?

24 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence 4. Regulatory Ambiguity Fosters Loopholes

Not only are the demarcation lines of core contracting work and those not privy to compartmented information blurry, the IC has yet to put forward concrete steps to address such issues. The government at the basic level differentiates federal employee work and core contractor work not necessarily through the lens of access but of functions that might be considered as inherently governmental functions or activities. In the 2008 Intelligence Authorization Act, the House Permanent Select Committee on Intelligence specifically cited its growing concern with the situation, noting that Intelligence Community leaders did “not have an adequate understanding of the scale and composition of the contractor work force” or “ a clear definition of what functions are inherently governmental and, as a result, whether there are contractors performing inherently government functions.”lv

“Although, generally, only federal employees may perform inherently governmental activities, a contractor employee who works for an agency pursuant to a personal services contract is permitted, under the Federal Acquisition Regulation, to perform inherently governmental activities.”12 lvi At times, ODNI’s definition of core contract personnel has included language that could be interpreted as suggesting such personnel might perform inherently governmental work pursuant to personal services contracts. “ODNI’s definition of core contract personnel in previous years included the following statement: [T]hese [core contract] employees are functionally indistinguishable from U.S. government personnel whose mission they support.”lvii As mentioned above, “a personal services contract is a contract that, by its express terms or as administered, makes the contractor personnel appear to be, in effect, Government employees...”lviii If we accept the preceding definitions and even take into account that analytic and operational decisions are made only by respective Agency staffs, where

12 As defined by the Federal Acquisition Regulation (FAR), a personal services contract is “a contract that, by its express terms or as administered, makes the contractor personnel appear to be, in effect, Government employees.... ” 48 C.F.R. §2.101(b). Another provision of the FAR expands upon this definition: “An employer-employee relationship under a service contract occurs when, as a result of (i) the contract’s terms or (ii) the manner of its administration during performance, contractor personnel are subject to the relatively continuous supervision and control of a Government officer or employee.” 48 C.F.R. §37.104(c)(1).

Belfer Center for Science and International Affairs | Harvard Kennedy School 25 is the oversight mechanism to ensure this is adhered to? Also, if we accept that the indistinguishability between core contractor and federal employees is intentional for operational purposes, does this mean access to compartmented information and how much of government decision-making is influenced by contractors and the private companies that own them? At a 2014 IC hearing, the Government Accountability Office pointed to the continued lack of guidance and procedures from several agencies that contributed to the problem.

“Within the IC, core contract personnel perform functions that could influence the direction and control of key aspects of the U.S. intelligence mission, such as intelligence analysis and operations. Our prior work and OMB policies have underscored the importance of agencies having guidance, strategies, and reliable data to perform decisions related to the appropriate use of contractor personnel…Yet, of the agencies we reviewed, ODNI, CIA, DOJ, DOE, and Treasury have not fully developed such procedures or established required time frames for doing so. Without these procedures in place, ODNI, CIA and the civilian IC elements within these three departments risk not having appropriate steps to manage and over- see contract personnel, particularly those performing work that could influence government decision-making.”lix

The confusion stems also from the Office of Federal Procurement Policy (OFPP) which in 2011 did not definitively determine who should perform inherently governmental activities. The proposed OFPP Policy Letter questioned, “Should the policy letter set out a presumption , or a requirement, in favor or performance of ‘closely associated’ and/or critical functions by federal employees?” The OFPP eventually decided not to create any sort of presumption regarding who should perform these functions. Some may argue that this opens the aperture for contractors to have autonomy. “Therefore, the OFPP should revisit this policy and set out a requirement that closely associated and critical functions should be performed in conjunction with federal employees.”lx

A continuing lack of definitive guidance discerning between public and private allows for nonexistent accountability and it should not be

26 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence surprising that corporations have seized on this opportunity to govern self-authored contracts that are intentionally vague to circumvent bench- marks. The matter of drawing clear lines becomes particularly striking in the aftermath of abuse allegations and even fatalities at the hands of contract employees, whether they are interrogating at Abu Ghraib in Iraq, prisons in Afghanistan or at Guantanamo Bay.

In addition to the limited internal oversight by components of the IC, increasingly, officers who leave the federal government to work for private industry at home and abroad have been equally confounded by the blurry lines. While the blame lies on officers for not being able to discern the environment, the objectives, and goals of the company they seek employment with—the private industry has not always been entirely truthful about the exact nature of its work, its contacts nor transparent of the duties performed by former federal employees. Project Raven13 comes to mind, specifically as it highlights the danger of US private companies and their global counterparts utilizing former US federal employees to spy against its own citizens. How can former NSA employees working for a private US company allow the UAE to violate the law? As NSA’s former deputy assistant director for policy Rhea Siers points out, “when does the testing of equipment or the training of foreign clients cross into the gray zone of executing or directly enabling actual intelligence collection on their behalf. And even worse, what if US citizens, working on behalf of a foreign government, did engage in surveillance of US persons at the behest of their [foreign] employer?”lxi The role of international legality of this topic is important to note. Because international law is applicable to governmental actors, “the specter (as with domestic U.S. constitutional law) of private contractors falling through the cracks of the international legal regime and evading accountability altogether is troubling. Despite the magnitude of these developments, however, international law scholars have not yet focused sufficiently on privatization as a comprehensive trend in the international arena, let alone considered its implications.”lxii This area gets murkier when we take into consideration the work of private security

13 Details regarding Project Raven clearly show how former U.S. intelligence officers with hacking expertise worked on cutting edge cyber warfare tools on behalf of a foreign intelligence service, in this case, the United Arab Emirates, that involved spying on activists, the media and political rivals, to include the United States.

Belfer Center for Science and International Affairs | Harvard Kennedy School 27 companies within the IC and outside of the command and control structure of the military.

A lacking formal structure undermined the US military’s accountability oversight during intelligence operations in Iraq and Afghanistan. The Military Extraterritorial Jurisdiction Act of 2000 (MEJA)14 and the Uniform Code of Military Justice (UCMJ)15 were new and untested during this crises and the underlying vacuum was later determined to be a causal factor in what was perhaps the most damaging incident of contractor mis- conduct during the war: the abuse of prisoners by contract interrogators at Abu Ghraib. Investigations concluded that,

Failure to effectively screen, certify, and then integrate contractor interrogators, analysts, linguists and although a senior officer was directed to be the Chief, JIDC, the establishment and efficient operation of the JIDC was further complicated by the lack of an organizational MI unit and chain of command at Abu Ghraib solely responsible for MI personnel and intelligence operations.

Furthermore, performing the interrogation function in-house with government employees has several tangible benefits. It enables the Army more readily to manage the function if all personnel are directly and clearly subject to the chain of command, and other administrative and/or criminal sanctions, and it allows the function to be directly accessible by the commander/supervisor…lxiii

Speaking of CIA’s need to reach out to contractors following 9/11, Director Leon Panetta during his briefing to the Senate Select Committee on Intelligence was remarkably open when he stated, “I really believe we have

14 Department of Justice. Accessed via https://www.justice.gov/sites/default/files/jmd/lega- cy/2013/10/15/act-pl106-523.pdf. The Military Extraterritorial Jurisdiction Act is Public Law 106–523 established on November 22, 2000 during the 106th Congress. It established that Federal jurisdiction over offenses committed outside the United States by persons employed by or accom- panying Nov. 22, 2000 the Armed Forces, or by members of the Armed Forces who are released or [S. 768] separated from active duty prior to being identified and prosecuted for the commission of such offenses, and for other purposes. 15 The Uniform Code of Military Justice (UCMJ) accessed via www.ucmj.us. The Uniform Code of Mil- itary Justice The UCMJ was passed by Congress on 5 May 1950, signed into law by President Harry S. Truman, and became effective on 31 May 1951. The entirety of the latest code can be found in the Manual for Courts-Martial (2008), incorporating changes made by the President (executive orders) and National Defense Authorization Acts of 2006 and 2007.

28 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence a responsibility to bring a lot of those duties in-house, and to develop the expertise and the skills within the CIA to perform those responsibilities. I get very nervous relying on outside contractors to do that job…because I’m not sure who they respond to.”lxiv

“Private contractors now perform a broad range of functions for the federal government, including formulating federal policy, interpreting laws, administering foreign aid, managing nuclear weapons sites and intelligence operations, interrogating detainees, controlling borders, designing surveillance systems, and providing military support in combat zones.”lxv Regrettably, under these circumstances, “contract terms-and not the relational hierarchies that exist within a government bureaucracy and constitutional democracy-govern contractor performance.”lxvi

Belfer Center for Science and International Affairs | Harvard Kennedy School 29 5. The Approach Forward

As the debate continues about how to effectively manage and in effect limit the questionable activities associated with privatizing intelligence, there is no denying that the government’s utility of the private sector will continue to be an indispensable part of its survival. And for good reason; outsourcing intelligence provides a more agile approach to the acquisition and management of contractors; it is also not as red-tape driven. For instance, you can easily terminate a contractor if you are not satisfied while inversely, it is considered a rarity for the IC to let go of a federal employee. Let us also not fool our- selves of the government’s perceived technological skillset; private industry is years ahead in the use of technology vice the government which continues to function on dated systems. Private industry is far more diverse than the government and this is a good thing; diverse perspectives are more prevalent in the private sector while the government often succumbs to groupthink men- tality. The private sector can easily tap into cultural competence while the government has struggled to utilize the cultural competence of its workforce because of the rigid structure of its insular agencies. For these and many other reasons, the reliance on outsourcing intelligence to the private sector has resulted in a lop-sided interdependence. Consider for a moment that “from 2000-2013, the federal government paid over $5.469 trillion to private contractors.lxvii For some, this astounding number supports the narrative that contractors are in it for financial gain and that financial gain equates to questioning one’s patriotism. It is about time we end this silly notion that pins contractors (green badgers) versus federal employees (blue badgers).16 Let us keep in mind that neither blue nor green fills the etched stars on CIA’s hallowed memorial wall; all are patriots, period. Let us examine how we might move forward in a responsible manner as to not adversely impact either sphere’s reciprocal value-added to the nation’s collective mission.

A logical starting point for our policymakers is to offer a single definition of activities that are inherently governmental and to clearly articulate exceptions to the rule such as decision-making authority or the ability of contractors to direct government employees; there must exist a clear and

16 There is a psychology behind colors that might be at work whereas green is associated with money and growth, while blue is associated with focus, loyalty and truth. Maybe contractor green badges should be replaced with striped blue badges to refocus the mind on what should be common sense that all serve the nation, albeit some for companies that make profit.

30 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence concerted effort to balance between the work of government employees and those who support them in a contractual capacity. “Determining which activities are ‘so intimately tied to the public interest’ as to be inherently governmental has proven an elusive concept for agencies, as well as for the firms with which they contract.”lxviii It seems that the aforementioned narrative for policymakers to take action has been prescribed in other publications, however policymakers have yet to revisit this important national security issue. To accomplish this, the government needs to ensure that in-house experts thoroughly review the terms and conditions of the vendor that is supplying the contract. The government and the private sector need to jointly ensure the burden of accountability rests equally on the shoulders of each body. Furthermore, why can’t each entity allow for joint training so each party walks away with clarity on the roles, responsibilities and legal accountability standards.

Contractors and vendors employing them must be held to the highest standard of personal accountability for lapse in judgment that results in the loss of life or leaked information that has severe national security implications. Here, the innumerable catastrophic mistakes alluded to earlier by Blackwater Worldwide (later Xe and Academi LLC) come to mind. Why is it that “Blackwater has been awarded over a $1 billion in contracts from the IC, including military intelligence and failure to curtail the rogue behavior of firms like Blackwater—whose list of violations includes purposely overcharging the US government for services rendered,17 possessing automatic weapons in the United States without registration, lying to federal firearms regulators about weapons provided to the king of Jordan, passing secret plans for armored personnel carriers to Sweden and Denmark without U.S. government approval, illegally shipping body armor overseas in an act of neighborly hospitality, the company also allegedly provided training to the Canadian military without the needed U.S. licenses—has resulted in global

17 Kimberly N. Brown, We the People, Constitutional Accountability, and Outsourcing Government, 88 Ind. L.J. 1347 (2013) Provided by: Harvard Law School Library and John Hudson, Time for Blackwater to Change Its Name Again: America’s least favorite mercenary firm got another black eye on Tuesday when it admitted to key facts behind 17 federal criminal charges, The Atlantic. August 8, 2012. Blackwater ‘charge[d] the government $1222 per day for each private military operative-more than six times the wage of an equivalent soldier,’ its high tab did not keep the company from overcharging. An au- dit by the State Department’s inspector general in 2005 revealed, for example, that Blackwater was bill- ing ‘separately for “drivers” and “security specialists” who were, in fact, the same people.’ In April of 2010 five of the company’s top officials-including a former Blackwater president, two former vice presidents, and its former legal counsel-were indicted on fifteen counts of conspiracy, weapons, and obstruction of justice charges.

Belfer Center for Science and International Affairs | Harvard Kennedy School 31 backlash, perhaps most prominently after the Nisour Square18 incident in Baghdad and the scandal at Abu Ghraib. Does such behavior not allow for the government and the public to discern between those private firms that are checked and accountable vice those that are void of ethics and morality? As Kimberly Brown articulates on the responsible outsourcing, perhaps, “for companies like Blackwater, a possible implication of a public disclosure element of constitutional accountability is a requirement that the President make public the projected use of private contractors as part of his annual budget request and any request to commit troops under the War Powers Resolution of 1973. Congress would then be aware of how much spending goes to private contractors in the prior fiscal year, and political debate over appropriations would kick in as serious questions arise. Agencies would have to justify their use of outsourcing to an elected branch of government that is answerable to voters.”lxix

National security is also gravely endangered by the government and the private sector’s lack of oversight on vetting processes and efforts to mit- igate counterintelligence in the field. “While contractors are required to undergo similar security checks as federal employees in order to receive their clearances, contractor employees enjoy far fewer restrictions when forward deployed compared to their Agency counterparts concerning their off-duty conduct, unofficial travel, contacts with foreign nationals, thereby placing them at risk for exploitation.”lxx One of many reports issued by the Government Accountability Office states that the Department of Defense’s industrial security practices were lacking and that the US government was unable to “ensure that its approach to overseeing contractors under FOCI (foreign ownership, control, or influence) is sufficient to reduce the risk of foreign interests gaining unauthorized access to US classified information.”lxxi The report stressed the “inherent challenges involved in monitoring complex multinational corporations supporting US government operations, noting a lack of trained investigators able “to fully understand the significance of corporate structures, legal ownership, and complex financial relationships when foreign entities are involved.”lxxii Agencies comprising the IC and the private sector have a responsibility to

18 The Nisour Square incident was a flashpoint for the private industry-US government relationship as Blackwater again made the news. This time, Blackwater Security mistook a bomb going off near Nisour Square as a potential shootout and once the dust settled, seventeen Iraqis were killed and dozens wounded in the affluent neighborhood. Several investigations revealed that Blackwater’s accounts simply did not add up as the Iraqi government demanded justice for the loss of innocent life.

32 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence protect national security; here, the agencies comprising the IC have the upper hand and must increase joint efforts with industry leaders to help protect information that ensures the integrity of data for both spheres.

The intelligence community and policy making bodies are also impacted by outsourcing intelligence especially as contractor-provided intelligence has found its way into the President’s Daily Briefing. With contractors in the field collecting information that ends up in cables across the IC for other contractors to review, analyze and eventually be published for the PDB inhibits clear lines of demarcation between corporate and government work at the highest levels. “It’s true that the government pays for and signs off on the assessment, but much of the analysis and even some of the underlying intelligence gathering is corporate. Corporations have so pene- trated the Intelligence Community that it’s impossible to distinguish their work from the government’s.”lxxiii The ODNI in working with the intelligence community must ensure that there is a clear, nuanced and culturally competent process behind the sourcing as to never let the most coveted publication in the world to be compromised.

To accomplish the momentous task of ensuring effective mission integra- tion and management of the government-private industry partnership, some offer the narrative to expand the Office of the Director of National Intelligence and consider establishing a Deputy Director of National Intelligence (DDNI) position, with the primary goal of IC regulation of contractors and to ensure accountability of both the government and the private sector. This I argue results in unnecessary bloating of an already bloated IC; rather, once we have a clear—and one that does not allow room for more bickering or loopholes—definition of what constitutes and what does not signify inherently governmental functions, then the IC component can issue tailored guidance accordingly, in the case of the IC, an Intelligence Community Directive or ICD.19 If we pursue the expansion of the IC to include a DDNI position for management and oversight of contractors, this would be equivalent to components abdicating their responsibilities by deferring to the DDNI. It would be like saying HR is responsible for all personnel issues, so I as a supervisor have no responsibility

19 The Director of National Intelligence (DNI) established Intelligence Community Directives (ICDs) as the principal means by which the DNI provides guidance, policy, and direction to the Intelligence Community.

Belfer Center for Science and International Affairs | Harvard Kennedy School 33 for the people working for me. A conversation with former Director of National Intelligence James Clapper comes to mind where he mentioned, “we have a proclivity for believing we can solve problems by the contriv- ance of reorganizing, which too often is simply an excuse for avoiding the real issue which is lack of leadership and acceptance of responsibility.” Once Congress legislates the aforementioned definitional clarity, which is at the heart of this seemingly fading issue, it must also simultaneously consider binding legislation which will limit the boundaries of outsourcing certain functions, including technical collection that is entrenched in the defense sector. For instance, let us revisit the alarming national security threat from the availability of high-resolution commercial imagery. Gone is the perceived edge once exemplified by President Lyndon Johnson who in 1967 stated, “before we had the [satellite] photography our guesses were way off. We were doing things we didn’t need to do. Because of the satellites I know how many missiles the enemy has.”lxxiv Today, satellites, once US government’s symbol of technological prowess is a burgeoning private industry with hundreds of commercial satellites and nanosatellites imaging the planet for conventional and unconventional purposes.

There is the financial boon argument that it saves the military and the intelligence community money from developing and operationalizing its own platforms. Perhaps, but the military and the IC lacks the depth of sophistication found in commercial systems. There are many other benefits of utilizing this technology; assessing damage from storms, determining the terrain and providing humanitarian aid during crisis, weather forecast- ing, deforestation, determining the impact of climate change, etc. The most advantageous for the IC, the imagery also provides an advantage against potential adversaries by tracking key movements and allowing the government to develop foresight and counter-strategies as was the case when Digital Globe “used an analytic tool known as Signature Analysis, which was employed to identify patterns in Boko Haram’s activity which resulted in forecast analysis on the next likely attack.”lxxv As is the case with any technology however, there exists the underlying concern of it being utilized or compromised by the enemy as the potential exists with the space-based remote-sensing industry. For instance, it is well known how terrorists used Google Earth during the 2008 Mumbai terrorist attacks. While the negative implications are equally many-fold, the question again rises; what adequate

34 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence regulation exists to prevent the most sophisticated of these systems from falling into the wrong hands and; what legally-binding regulations can prevent industry to develop sophisticated systems for use other than for augmenting military and intelligence operations and; what, if any regulation the government should have on access to private enterprise vaults that hold sensitive imagery?

While regulation of any industry will draw concerns, consider that without adequate regulation, let’s say on shutter controls, allows the US’ military buildup, its movement, discovery of US’ sensitive military and intelligence sites to be compromised while simultaneously made publicly available, within hours vice months or years and on a smart phone. Keeping the US ahead in the global competitive market while protecting civil liberties would need to be balanced by Congress. Bearing in mind that some of the technological capabilities will be kept from the public eye, as much unclassified public disclosure of such capabilities must be debated along with the degree of targeted surveillance to alleviate the public’s concerns. While the highlighted concerns were the subject of discussion during a 2016 House subcommittee hearing on Science, Space and Technology, the predominant theme was frustration among CEOs and government officials citing outdated and cumbersome regulations which do not resolve the intricate balance of supporting innovation and protecting national security. The subcommittee’s chairman Representative Brian Babin stated that, “protecting national security is paramount but there are questions of what these [security] interests should be in particular in light of increasing international competition and wide availability of commercial remote sensing and geospatial data.”lxxvi

The IC has been long aware that the increasing growth and soaring market of commercial satellite imagery will no doubt also give rise to actors utilizing denial and deception measures. In 2006, an open source article cited a Chinese Military journal that stated that Google Earth broke ‘the monopoly position of traditional line-drawn maps and ushered in a new era of electronic maps [but] has also brought a certain amount of hidden security-related dangers that pose threats to every country and region.’ The author’s remedy to this risk was the adoption of “various methods and measures and do all we can to get around the problems brought about by

Belfer Center for Science and International Affairs | Harvard Kennedy School 35 Google Earth and minimize the impact it has on national security,” and stressed “the importance of anti-reconnaissance against satellites, properly camouflaging and protecting important secret facilities, and understanding a satellite’s shooting intervals, which could be used for conducting major military activities.”lxxvii Such an overt statement should give us pause and we must reflect upon the need for greater innovation and that commercial satellite imagery—its true owners who we must remember also serve as vault-keepers, government consumers and the current context in which outsourcing functions—remains susceptible to the adversary’s competitive edge. Outsourcing commercial imagery must unequivocally balance the need for innovation without which we cannot lead and national security without which we cannot exist.

36 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence Conclusion

This paper attempted to inform the reader that Intelligence has continued to be an extension of the government since the earliest days of the Republic and that it has also been mired with issues similar to what the nation faces today. The context has not changed; no matter the adversary, external or internal, the government reflects the continuum; inundated with information, issues of competitiveness within, domestic surveillance, a new technological paradigm that is seemingly a boon and a threat, and the list goes on. To tackle these seemingly perpetual issues, the current, far more established mutual relationship between the government and private industry must operate within defined boundaries. The repercus- sions for continuing to operate in the sphere of ambiguity between these two domains poses an existential threat to the relevance of the intelligence profession and for our Republic.

Belfer Center for Science and International Affairs | Harvard Kennedy School 37 Endnotes

i Raphael S. Cohen., Putting a Human and Historical Face on Intelligence Contracting. Foreign Policy Research Institute. Spring 2010.

ii American Beginnings: 1492-1690. National Humanities Center., Accessed at: nationalhumaniti- escenter.org/pds/amerbegin/power.power.htm

iii Ibid

iv George Washington and Paul Royster, Editor, “The Journal of Major George Washington (1754)” (1754).Electronic Texts in American Studies. 33. P. 9. Accessed online at https://digitalcommons. unl.edu/etas/33

v Washington and the French & Indian War. Accessed online at https://www.mountvernon.org/ george-washington/french-indian-war/washington-and-the-french-indian-war/

vi Jared Sparks, The Writings of George Washington. Volume II, 1847. Available online at: http://www. familytales.org/dbDisplay.php?id=ltr_gwa2607&person=gwa, as of 09 March 09 and Jared Sparks Collection of Miscellaneous Papers Relating to the Revolution, 1777-1782.

vii George Washington, 1732-1799, and Worthington Chauncey Ford. The Writings of George Wash- ington collected and edited by Worthington Chaucey Ford. Vol. 1, G.P. Putnam’s sons, 1889. Sabin Americana, 1500-1926, http://tinyurl.galegroup.com.ezp-prod1.hul.harvard.edu/tinyurl/AJKxD3. Accessed 24 June 2019.

viii David Sebastian Igneri. Sir william johnson’s influence on the iroquois and other indians which affected the outcome of the french and indian war.1992 (Order No. 9232455). Available from ProQuest Dissertations & Theses Global. (304049942). Retrieved from http://search.proquest. com.ezp-prod1.hul.harvard.edu/docview/304049942?accountid=11311

ix The Papers of Sir William Johnson, 1715-1774. Volume I. The University of the State of New York, 1921-1965. Prepared for publication by the Division of Archives and History by James Sullivan, PhD, Director and State Historian. pp. 540-541. Accessed at http://id/lib.harvard.edu/ alma/990027126130203941/catalog

x Fintan O Toole, White Savage: William Johnson and the Invention of America (New York, NY: Farrar, Straus and Giroux, 2005), p. 81

xi George Laurence Gomme ed. ‘The Gentleman’s Magazine - Topographical History 1732-1868”. London: E. Stock. 1756. Volume 26.. p. 404.

xii Arthur Pound. Johnson of the Mohawks: A Biography of Sir William Johnson. pp. 7-9

xiii Fintan O Toole, White Savage: William Johnson and the Invention of America (New York, NY: Farrar, Straus and Giroux, 2005), p. 81

xiv Ibid, pp. 230-1.

xv The Editors of Encyclopedia Britannica. Robert Rogers. Encyclopedia Britannica., Encyclopedia Britannica, Inc. November 03, 2018. https://www.britannica.com/biography/Robert-Rogers February 9, 2019

xvi David A. Copeland. Securing the Affections of Those People at This Critical Juncture: Newspapers, Native Americans, and the French and Indian War, 2002. 1754–1763, American Journalism, 19:4, 37-66, DOI: 10.1080/08821127.2002.10677902, p. 48

xvii Ibid

38 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence xviii William Bradford, “A Colonial Newspaper Protests The Stamp Act,” HERB: Resources for Teachers, accessed May 19, 2019, https://herb.ashp.cuny.edu/items/show/882. xix Nathan Miller. Spying for America. The Hidden History of U.S. Intelligence. Paragon House, New York. 1989. P. 7 xx Nathan Miller. Spying for America. The Hidden History of U.S. Intelligence. pp. 5-6 xxi Raphael S. Cohen., Putting a Human and Historical Face on Intelligence Contracting. Foreign Policy Research Institute. Spring 2010., p. 237 xxii Ibid xxiii Glenn J. Voelz. Contractors and Intelligence: The Private Sector in the Intelligence Com- munity, International Journal of Intelligence and Counterintelligence, 2009 p. 588, DOI: 10.1080/08850600903143106 xxiv Ibid. p. 57 xxv Ruth Quinn., Colonel Ethan Allen Hitchcock Forms Mexican Spy Company, 5 June 1847, June 4, 2014. Retrieved from https://www.army.mil xxvi Nathan Miller. Spying for America. The Hidden History of U.S. Intelligence. p. 88 xxvii Raphael S. Cohen., Putting a Human and Historical Face on Intelligence Contracting. Foreign Policy Research Institute. Spring 2010., p. 239 xxviii Anand Gopal. No good men among the living : America, the Taliban, and the war through Afghan eyes (First ed.). New York: Metropolitan Books/Henry Holt and Company. 2014., p. 107 xxix Ibid. p. 109 xxx Ibid xxxi Glenn J. Voelz. Contractors and Intelligence: The Private Sector in the Intelligence Community, p. 590 xxxii Frank Morn, The Eye That Never Sleeps: A History of the Pinkerton Detective Agency. (Bloomington: Indiana University press, 1982). P. 45 xxxiii Stephen P. O’Hara Inventing the Pinkertons; or, Spies, Sleuths, Mercenaries, and Thugs: Being a story of the nation’s most famous (and infamous) detective agency. Baltimore: John Hopkins University Press, 2016. https://muse.jhu.edu/ (accessed May 10, 2019). xxxiv Federal Acquisition Regulation 37.109. Services of quasi-military armed forces. Contracts with “Pinkerton Detective Agencies or similar organizations” are prohibited by 5 U.S.C.3108 . This prohibition applies only to contracts with organizations that offer quasi-military armed forces for hire, or with their employees, regardless of the contract’s character. An organization providing guard or protective services does not thereby become a “quasi-military armed force,” even though the guards are armed or the organization provides general investigative or detective services. (See 57 Comp. Gen. 524.) xxxv Raphael S. Cohen., Putting a Human and Historical Face on Intelligence Contracting, p. 242 xxxvi Brendan Mcquade, The Nineteenth Century Information Revolution and the Accomplishment of Rule: Information Infrastructures, Intelligence States, Colonial Discourses, and Racial Knowledge. Critical Sociology, September 2013, Vol.39(5), pp.780-781. xxxvii Donald E. Markle., Spies and Spymasters of the Civil War.P. 3 4 xxxviii Ibid., p. 244

Belfer Center for Science and International Affairs | Harvard Kennedy School 39 xxxix Nathan Miller. Spying for America. The Hidden History of U.S. Intelligence. pp. 202-203

xl Ibid., pp 210-213

xli Ibid., pp. 237-238

xlii Ibid., p. 237

xliii Richard Harris Smith., (2005). OSS: The secret history of America’s first central intelligence agency. (Guilford, Conn.: Lyons Press, 2005)

xliv Raphael S. Cohen., Putting a Human and Historical Face on Intelligence Contracting, p. 246

xlv Ibid., p. 247

xlvi Ibid

xlvii Ibid., p. 248

xlviii Ibid

xlix Ibid

l Glenn J. Voelz. Contractors and Intelligence: The Private Sector in the Intelligence Community, International Journal of Intelligence and Counterintelligence, 2009 22:4, pp. 586-613, DOI: 10.1080/08850600903143106

li R.J. Hillhouse., Outsourcing Intelligence: The Nation., July 24, 2007. Key aspects of national security, including intelligence and analysis used to create the President’s Daily Brief, have been turned over to private corporations.

lii Tim Shorrock. Remarks made at the Institute for Policy Studies gathering on 19 May 2008. Available at http://www.c-spanvideo.org/program/205873-14 (accessed 14 January 2019)

liii CQ Congressional Transcripts, Senate Homeland Security and Governmental Affairs Committee Holds Hearing on the Intelligence Community Contractor Workforce,” statement of Thomas Carper, Chairman, Senate Select Committee on Intelligence, June 18, 2014, p. 1.

liv Maureen Webb. Illusions of Security: Global Surveillance and Democracy in the Post 9/11 World (San Francisco, CA: City Lights, 2007), p. 56

lv Intelligence Authorization Act for Fiscal Year 2008, HR 2082, 110th Congress, 1st session, Section 411, http://www.fas. org/irp/congress/2007_rpt/hrpt110-131.html

lvi 48 C.F.R. §7.502. A difference may exist, however, between federal employees and contract personnel in the IC with regard to whistleblower procedures. For information on the intelligence community and whistleblower protections, see CRS Report R43765, Intelligence Whistleblower Protections: In Brief, by Rodney M. Perry.

lvii U.S. Government Accountability Office, Civilian Intelligence Community: Additional Actions Needed to Improve Reporting on and Planning for the Use of Contract Personnel, GAO-14-204, p. 48.

lviii 48 C.F.R. §2.101(b).

lix U.S. Government Accountability Office, Civilian Intelligence Community: Additional Actions Needed to Improve Reporting on and Planning for the Use of Contract Personnel, GAO-14-204, pp 29-30

lx Contra Final OFPP Policy Letter, 76 Fed. Reg. at 56,233 (noting that such presumptions regarding the performance of particular functions are “inappropriate”).

40 The U.S. Intelligence Enterprise and the Role of Privatizing Intelligence lxi Rhea Siers. Project Raven Raises Big Concerns. February 4, 2019. Retrieved from www.cipherbrief. com lxii Laura A. Dickinson. (2005). Government for hire: Privatizing foreign affairs and the problem of accountability under international law. William and Mary Law Review, 47(1), 135. Provided by: Harvard Law School Library lxiii Anthony R.; Fay, George R. Jones. Investigation of Intelligence Activities at Abu Ghraib (2004). Provided by: Harvard Law School Library lxiv United States. Congress. Senate. Select Committee on Intelligence. (2009). Nomination of Leon Panetta to be director, Central Intelligence Agency: hearings before the Select Committee on Intelligence, United States Senate, One Hundred Eleventh Congress, first session, February 5, 2009, February 6, 2009. Washington: U.S. G.P.O. lxv Ibid., 135, 138 lxvi Kimberly N. Brown, We the People, Constitutional Accountability, and Outsourcing Government, 88 Ind. L.J. 1347 (2013) Provided by: Harvard Law School Library lxvii See Total Federal Spending, USA SPENDING, http://www.usaspending.gov/ trends?trendre- port=default&viewreport=yes&maj-contracting-agency-t=&pop-state -t=&p op_cdt=&vendor- state-t-&vendor cd t=-&psc cat t-&tab=Graph+View&Go.x=Go (reflecting data reported by agencies up until May 10, 2013). lxviii Anthony LaPlaca, (2012). Settling the Inherently Governmental Functions Debate Once and For All: The Need for Comprehensive Legislation of Private Security Contractors in Afghanistan. Public Contract Law Journal, 41(3), 745-764. Retrieved from http://search.proquest.com.ezp-prod1.hul. harvard.edu/docview/1023133841?accountid=11311 lxix Kimberly N. Brown, We the People, Constitutional Accountability, and Outsourcing Government, pgs. 1398-1399 lxx Glenn J. Voelz (2009) Contractors and Intelligence: The Private Sector in the Intelligence Communi- ty, p. 603 lxxi Government Accountability Office, Industrial Security: DOD Cannot Ensure Its Oversight of Contractors under Foreign Influence Is Sufficient, July 2005, p1. Retrieved from https://www.gao. gov/assets/250/247112.pdf lxxii Glenn J. Voelz (2009) Contractors and Intelligence: The Private Sector in the Intelligence Communi- ty, pp. 602-603 lxxiii Intelligence Expert Uncovers Disturbing Details of how Corporations Provide Content for the President’s Daily Brief. (2007). PR Newswire, N/A. lxxiv John Ferris, and Paul S. Boyer. Intelligence Gathering and Espionage. In The Oxford Companion to United States History. : Oxford University Press,, 2001. http://www.oxfordreference.com.ezp-prod1. hul.harvard.edu/view/10.1093/acref/9780195082098.001.0001/acref-9780195082098-e-0778. lxxv Julia Peng. The Rise of Commercial Satellite Imaging—Implications for Defense. Retrieved from natoassociation.ca/the-rise-of-commercial-satellite-imaging-implications-for-defense/ Published on May 29, 2016. Accessed online on April 16, 2019 lxxvi Randy Showstack. Remote Sensing Regulations Come Under Congressional Scrutiny. 2016, Eos, 97. Retrieved from https://doi.org/10.1029/2016EO059371 Published on 14 September 2016. lxxvii The Google Controversy—Two Years Later,” Open Source Center, 30 July 2008. Retrieved at http:// www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB404/docs/23.pdf

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