James Clapper Says Intelligence Community Has 'Duty To Warn' Endangered People… Sort Of

from the exceptions-apply dept

Steven Aftergood of the Federation of American Scientists directs us to a recently-released document issued by James Clapper (DNI) that formalizes something that the US has long held in principle, but had yet to commit to paper.

Intelligence agencies that discover a threat to a person’s life or safety are obliged to alert the intended target in most cases as long as they can do so without compromising intelligence sources and methods, a new intelligence community directive instructs.

A U.S. intelligence agency “that collects or acquires credible and specific information indicating an impending threat of intentional killing, serious bodily injury, or kidnapping directed at a person or group of people shall have a duty to warn the intended victim or those responsible for protecting the intended victim, as appropriate,” the new directive states. “This includes threats where the target is an institution, place of business, structure, or location.”

The directive also covers, remarkably, non-US persons. The broad wording that pulls a lot of non-person “persons” under the “duty to warn” umbrella raises some questions about the included agencies’ (FBI, NSA, CIA) duty to warn private companies about attacks of the “cyber” variety. Marcy Wheeler of emptywheel:

As I have noted, NSA has secretly defined “serious bodily harm” to include threat to property — that is, threats to property constitute threats of bodily harm.

If so, a serious hack would represent a threat of bodily harm (and under NSA’s minimization procedures they could share this data). While much of the rest of the Directive talks about how to accomplish this bureaucratically (and the sources and methods excuses for not giving notice), this should suggest that if a company like Sony is at risk of a major hack, NSA would have to tell it (and the Directive states that the obligation applies for US persons and non-US persons, though Sony is in this context a US person).

So shouldn’t this amount to a mandate for cybersharing, all without the legal immunity offered corporations under CISA?

It would appear to order the NSA and other government intelligence agencies to be forthcoming about impending (or ongoing) attacks. If interpreted in this fashion by the ODNI, it would appear to make CISA-ordained sharing redundant and ask the intelligence community to put aside its own interest in exploitables and preserving “means and methods” in favor of a “duty to warn.”

Or not. There are several exceptions.

a. The intended victim, or those responsible for ensuring the intended victim’s safety, is already aware of the specific threat;
b. The intended victim is at risk only as a result of the intended victim’s participation in an insurgency, insurrection, or other armed conflict;
c. There is a reasonable basis for believing that the intended victim is a terrorist, a direct supporter of terrorists, an assassin, a drug trafficker, or involved in violent crimes;
d. Any attempt to warn the intended victim would unduly endanger U.S. government personnel, sources, methods, intelligence operations, or defense operations;
e. The information resulting in the duty to warn determination was acquired from a foreign government with whom the U.S. has formal agreements or liaison relationships, and any attempt to warn the intended victim would unduly endanger the personnel, sources, methods, intelligence operations, or defense operations of that foreign government; or
f. There is no reasonable way to warn the intended victim.

So, this voluntary assumption of a mostly-moral obligation to warn others of danger does not cover most criminals (apparently, the ODNI is fine with criminals killing/harming each other) or any situation where warning an entity of an impending attack would compromise intelligence agencies and their objectives. This would seem to eliminate warnings of cyberattacks, seeing as most relevant information would be hopelessly entangled in the cybersecurity efforts of multiple government agencies.

Marcy Wheeler points out that these exceptions could explain the FBI’s lack of interest in warning Occupy Wall Street members of an assassination plot. Of course, the directive didn’t officially take effect until July 21, 2015. At the point the FBI decided against warning certain American citizens of assassination threats, the “duty to warn” was nothing more than an altruistic ideal. It was under no legal obligation to do so, and its investigation of Occupy Wall Street probably justified its unwillingness to keep these “insurrectionists” out of harm’s way.

The new directive doesn’t really make this any more mandatory than it was back when it was unwritten and completely voluntary. Steven Aftergood points out the DNI’s directive mentions both the National Security Act of 1947 and Executive Order 12333, but neither of these contain any wording that would legally compel intelligence agencies to honor a “duty to warn.”

That being said, there’s at least some anecdotal evidence that intelligence agencies have carried out their “duty to warn” in the past. Aftergood’s post links to a former intelligence officer’s recounting of exercising the “duty to warn” in Iraq.

A US citizen who was mixing good deeds (water supply work) with proselytizing (handing out Bibles to Iraq citizens) found himself the target of the Iranian Islamic Revolutionary Guards Corp. The IRGC implemented a Bible “buy-back” program, offering $5 for every Bible handed out by this “do-gooder.” Iraqis soon turned this into a revenue stream, selling Bibles to the Guards and heading back to the missionary for fresh copies. The IRGC then decided it was sick of spending money to make money zero headway in the religious superiority game and decided to kill the Bible supplier. This news made its way back to the CIA task force, which then attempted to pass the warning on to the do-gooding Bible pusher. Incongruity ensued.

So, I get the tasking to warn Doug under the “duty to warn” policy. I gather up a few of our Kurdish guard force and another American to go to the village and pass the warning on to Doug. I can imagine his confusion. We roll into town, something like a cross between the Rat Patrol and Pancho Villa, Toyota pickups with mounted 12.7mm’s, Alanis Morissette blaring on the CD player – you get the picture.

I knocked on the door (I asked the locals, “Wayn al-Amrikan?” [Where’s the American?]) and a gringo answers. I ask if he is Doug so-and-so. He says he is, but looking at our obviously loaded-for-bear entourage, asks who we are.

I reply, “We’re from the State Department.”

He looks at us, AK-47’s and Browning High-Powers all over the place.

I quietly said, “Just work with us here, Doug.”

“What exactly do you want?” he asks. Obviously he was not a fan of the CIA mucking around in “his” area.

I explain, “We have information that the Iranians, who believe you are proselytizing Christianity, are planning to kill you. We are advising you to leave Iraq for your own safety and that of your family (he had actually brought his Dutch wife and 10-year old son with him).”

Incredulously, he asked me, “Do you have anything more specific, more concrete than the fact they plan to kill me?”

I was a bit taken aback – “The IRGC is going to kill you – Doug so-and-so. How much more specific do we have to be?”

So, altruism exists. And inasmuch as it doesn’t interfere too greatly with national security aims and/or ongoing investigations, people will be warned. But the ODNI’s new “directive” doesn’t add any additional obligations that weren’t in place earlier. In fact, it seems to have been put down on paper mainly to explicitly list all the times the intelligence community won’t be obligated to warn others of danger.

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Comments on “James Clapper Says Intelligence Community Has 'Duty To Warn' Endangered People… Sort Of”

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28 Comments
That One Guy (profile) says:

Written for the exceptions, not the rules

d. Any attempt to warn the intended victim would unduly endanger U.S. government personnel, sources, methods, intelligence operations, or defense operations;

I imagine this part in particular is the primary reason behind this. Any time they stay quiet on a danger, and are asked why they didn’t intervene, they can point to this as the reason. Can’t save a life, or several if it puts their ability to spy on the line after all.

rick f says:

a. The intended victim, or those responsible for ensuring the intended victim’s safety, is already aware of the specific threat;

So since Americans are aware of the specific threat of ‘terrorism’ — specifically, the HOMELAND and AMERICANS are ‘specific’ targets they don’t need to be told. How convenient.

d. Any attempt to warn the intended victim would unduly endanger U.S. government personnel, sources, methods, intelligence operations, or defense operations;

“Telling you would disclose the fact we know something, and since knowledge is half the battle (go joe!) and part of our defense operations, sources, and methods, we can’t tell you. Sorry, but you’ll have to trust us.”

Anonymous Coward says:

Re: Re: Re:

That argument only works by redefining “specific” to be something without meaning. Not that I would put it past them.

They just did that with “bodily”….

NSA has secretly defined “serious bodily harm” to include threat to property

And they’ve been doing it for a while with “relevant”.

Anonymous Coward says:

look...

you are all just pissant citizens… we are not interested in protecting the individual, only the state.

If you think we are hear to protect YOU then it explains your vast ignorance on life.

You must protect yourself, and every law written or that you request to have written that allows government dictate that law means you lose the right handle it yourself.

Government has never been, and never will be of the mind to protect any citizens, they protect the citizenship and that is all. The most rules you make the less you become yourself until you are nothing more than a tiny cog in a huge machine where YOU as a cog can be easily ignored in most cases or just replaced as a mere after thought!

Coyne Tibbets (profile) says:

Intelligence black hole

I doubt if they tell any significant number of people. It’s right there, stated boldly in their exceptions:

d. Any attempt to warn the intended victim would unduly endanger U.S. government personnel, sources, methods, intelligence operations, or defense operations[.]

Now let’s see. They can’t tell you:

* If you’re on the do not fly list, because that would endanger sources, methods and intelligence operations.
* Why they’re recording all the phone metadata, because that would endanger sources, methods and intelligence operations.
* How they interpret the law, because that would endanger sources, methods and intelligence operations.
* How many NSL letters they issued, because that would endanger sources, methods and intelligence operations.

I could go on, but what’s the point. The thing that really matters is: “We cannot reveal [anything], because that would endanger sources, methods and intelligence operations.”

Now here they are, maintaining they warn people of impending attacks, patting themselves on the backs, implying that doing this does not endanger sources, methods and intelligence operations. Nonsense. Because when I wrote that fill-in-the-blank “[anything]” above, I meant it. The intelligence agencies are like black holes: Information falls in, never to be seen again.

tqk (profile) says:

Re: Intelligence black hole

I could go on, but what’s the point.

To tell the whole truth.

The thing that really matters is: “We cannot reveal [anything], because that would endanger sources, methods and intelligence operations.”

The whole truth is that they consider those things are of primary importance and we’re not. We get to pay for it, be inconvenienced by it, possibly even die for it, but it’s not about us nor what we might want or consider important.

“Le e’tat, c’est moi.” We’re just the proles who finance their hobbies.

Anonymous Coward says:

There are, or were? Christians in Iraq, who might not have bibles do to the extreme poverty of most Iraqis outside Baghdad or Basra I guess, southern Iraq is the only place not in chaos producing oil…

Maybe he should have given those to them. It’s like a no brainer. It’s like giving a New Testament to a Jew.

Yes, I know I'm commenting anonymously says:

– Persons includes legal entities like corporations.
– Bodily harm includes perceived property damage. (Does that include IP?)
– Agencies can choose to alert persons of possible bodily harm.
Together, this reads like an effort to legalize industrial espionage by the state for private corporations. (are they afraid of the Chinese or imitating them?)

GEMont (profile) says:

Re: Re:

Together, this reads like an effort to legalize industrial espionage by the state for private corporations.

Damn. I am gonna hafta learn to read the other posts before posting in future.

Good call.
Sounds about right.

I know one thing for certain – this has NOTHING at all to do with preventing a general US citizen from being harmed.

GEMont (profile) says:

...nothing up my sleeve....

Intelligence agencies that discover a threat to a person’s life or safety are obliged to alert the intended target in most cases as long as they can do so without compromising intelligence sources and methods, a new intelligence community directive instructs.

…in most cases as long as they can do so without compromising intelligence sources and methods…

Well shit mun, that’s a loophole you can drive a luxury liner through while swing a couple aircraft carriers over your head.

In fact, its the one the CIAF BIN SADOJ uses, like 5 times a month to get away with all of its quasi-legal shenanigans without having to actually prove squat to the courts.

Meaningless Drivel.

Unless of course you ask yourself, exactly what is that supreme dipshit planning to do with this twisted admission.

How can the CIAF BIN SADOJ use the legal necessity of warning a victim-to-be of imminent danger, to their own advantage.

Answer that question and you get to see the next few months/years of the Snoop and Scoop Agency’s clandestine operations, or court proceedings, using victims.

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