Needed: The Espionage Reform Act of 2023

One of the great sports of the D.C. swamp is talking about government reform. And one of the specific “sports” most focused upon is intelligence. Not illogical. It’s big money and in a controversial space, with spying at home and abroad costing some $90 billion. 

Still, it’s been nearly 20 years since Capitol Hill last had a serious go at intelligence reform. And, in the meantime, a thicket of an “intelligence industrial complex” has grown. Moreover, the current IC no longer seems capable of covering the expanded nature of what now constitute national security issues. And our economic espionage laws have become weak and outmoded with, internal espionage laws seeming increasingly intrusive.

In my opinion, the new Congress needs to step up and take a careful look at how the people’s money is being spent – see how American intelligence can best defend us against the national security realities of the third decade of the 21century.

The intelligence-industrial complex

In January 1961, President Eisenhower warned in his farewell speech about the “military-industrial complex.” He feared the expanding connections between the military and industry would “harm our country,” and Ike urged us to “guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex.” It is my belief that we now have the same problem with U.S. intelligence – an “intelligence-industrial complex.”

Comparable to the exponential Defense Department growth post World War II, IC has exploded in budget size since 9/11 — from $26.7 billion in 1998 to $90 billion today. Alone, it represents the fourth largest part of the discretionary budget of the U.S. Government. And, logically enough, it has developed a very large industrial base to support it. 

This base is heavily populated with formers from the IC. Some are there as contractors supporting their former colleagues. Others guide the companies through the thicket of government contracting, leading efforts to obtain business. Still others go back into the IC after a stint in the private sector – the revolving door.

None of this is illegal or unplanned. In fact, the George W. Bush administration encouraged the expansion of this base as a money saving measure – cheaper than hiring employees was the argument, with private sector “knowledge” brought to the table.

In 2023, however, the question for Congress to consider is: Do we want the pattern we have going forward – the endlessly revolving door? The perhaps too-close relationship between contractor and government? Frankly, at minimum, we need to better regulate the interplay between intelligence and industry with greater public exposure and more defined rules.

Working outside the swamp

Thanks to the internet, intelligence collection and analysis is a thriving and expanding industry around the world. It’s also becoming a problem for U.S. intelligence as employees leave for other pastures.

Thanks to some recent cases, the FY 2023 intelligence law includes a provision that restricts former U.S. intelligence people from using their skill set for other countries.

This begs the question: Is it time to place restrictions on people who have been in the IC from selling their skills to not only foreign countries but domestic companies? My opinion would be definitely yes.

As has recently been noted in the press, any number of former IC people have gone into other information businesses such as Google, Facebook, etc. Again, not illegal. They have a right to seek employment where they will and where companies will hire them. However, less than any grand conspiracy these relationships facilitate, they do add to an uncomfortable “group think” and make, perhaps too easy, the passing of information between the IC and former colleagues in these private information businesses.

And, while we are at it, let’s talk about the symbiotic relationship between the Congressional intelligence overseers and the executive branch. There is a lot of passage back and forth between the overseers and the overseen. Again, there is the always-present question of group think or coziness. Either way, I believe we need some restrictions on these types of “symbiotic” relationships.

China and our espionage laws

Another nasty problem Congress needs to address is our current set of economic espionage laws. In my opinion, they are outdated, outmoded, and have no reflection of the national security realities of the 21^st century.

The main culprit here is Beijing. The Chinese are taking us to the cleaners with a national effort to use both their public and private entities to steal our technology and improve their economic power on the back of our R&D efforts.

There is not a month that goes by that some type of leak and spying effort is not reported. Paraphrasing the head of U.S. counterintelligence, the volume is simply overwhelming.

However, the economic espionage laws of this country are weak and old. The penalties are small: a few years in jail if convicted, at best. I believe Congress cannot let this stand. Penalties have to be increased. More Counterintelligence resources should be devoted against China. This is economic warfare, and we must treat it as such. They do.

Expanding the reach of the IC

COVID and China’s espionage explosion into the American business community have shown us that intelligence issues extend beyond just the old 20^th century political and military concerns. We simply do not have the structure to take these new issues on board.

To fill these huge gaps, the Centers for Disease Control and the Department of Commerce need to have membership in the IC. Future pandemics will be the norm, not the exception. CDC needs the world-wide IC resources to make accurate account of rapidly spreading diseases.

The Commerce Department – in the lead on everything from trade issues, to internet regulation, to the purchases of U.S. firms by foreign entities – needs to have the kind of information and support only the IC can give them.

Additionally, the DOD’s Defense Counterintelligence and Security Agency — overseers of counterintelligence for 200,000 companies in the defense/intelligence industrial base — needs to be made a separate partner in the U.S. Intelligence Community. With Beijing aggressively pursuing its espionage goals, DSCA needs to be more tightly lashed into the IC.

Open source is here to stay

Also, the IC has got to come to better grips with Open Source intelligence (OSINT). This argument — the value of unclassified information in cyber space versus classified — not only no longer makes sense in a world where secrets are few, but it increasingly blinds policy makers to potential challenges they have to face. And it makes analysts too narrowly focused. 

It is time for Congress to create an Open Source Agency — an equal to NSA’s signals, NGA’s imagery, and CIA’s human intelligence. This alone would create an effective balance of the “secret” with the reality of an ever expanding and information-rich cyber world.

Civil liberties and intelligence gathering

And last, but not least, Congress needs to start reviewing all the surveillance programs we’ve promulgated since 9/11 to prevent further “terrorist” activities on U.S. soil.

A laudable goal, the price of a zero-tolerance terrorism policy is a high one — and not, as we have seen time and again, necessarily achievable. 

We have a myriad of intelligence gathering methodologies to deal with the issue: classified Foreign Intelligence Surveillance Courts; hundreds of thousands of National Security Letters from the Justice Department to companies with no appeal and non-disclosure requirements. 

Again, none of this is illegal. It was deemed necessary at the time. But, time has moved on, and it is time for Congress to review the cost — in dollars and in civil liberties.

Hard road to reform

Any one of the reforms or changes I have mentioned is a hot, third rail of intelligence oversight, with lots of players and lots of turf to be protected.

But America deserves some serious changes to its intelligence organization, gathering, and laws to reflect the challenges and social issues of the third decade of the 21^st century.

This is about Congress doing its duty and overseeing the IC’s use of the taxpayers’ money in the most efficient manner possible. It is about protecting our country.

Ronald A. Marks is a former CIA officer who served as Senate liaison for five CIA Directors and intelligence counsel to two Senate Majority Leaders. He currently is a non-resident senior fellow at the Scowcroft Center at The Atlantic Council and visiting professor at the Schar School of Policy and Government at George Mason University.