Spying on Non-Spies: The Legal Possibility of Non-State Intelligence

By Bailey Cook — January 28, 2022

With the withdrawal from Afghanistan and the continued strategic shift towards peer and near peer competitors, the United States (US) national security environment is in a state of flux. The presence of new legal possibilities, in the face of new threats and challenges, presents an opportunity lacking since the short time after the September 11th attack. The current national security legal framework is an accumulation of palimpsest, ranging from English Common Law, Reconstruction measures, Cold War reforms, and the Obama Administration’s mass surveillance and drone programs. The traditional thinking surrounding covert action stems from Executive Order 12333 (EO 12333). The most relevant section of EO 12333 for this article is:

SEC. 3.5 DEFINITIONS. For the purposes of this Order, the following terms shall have these meanings:

(a) Counterintelligence means information gathered and activities conducted to identify, deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons, or their agents, or international terrorist organizations or activities.

(b) Covert action means an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly, but does not include:

  • Activities the primary purpose of which is to acquire intelligence, traditional counterintelligence activities, traditional activities to improve or maintain the operational security of United States Government programs, or administrative activities;
  • Traditional diplomatic or military activities or routine support to such activities;
  • Traditional law enforcement activities conducted by United States Government law enforcement agencies or routine support to such activities;
  • Activities to provide routine support to the overt activities (other than activities described in paragraph (1), (2), or (3)) of other United States Government agencies abroad (Reagan).

Under 50 U.S. Code § 3093, covert action must be authorized by a Memorandum of Notification (MON) from the Office of the President, and the congressional intelligence committees must be notified. This regulation scheme has been and should continue to be applied to the rise of non-state intelligence services and other non-traditional targets. Wikileaks represents a case study of this legal and operational frontier for the Intelligence Community (IC).

WikiLeaks purports to be “a multi-national media organization and associated library”, but this hides the truth, which is that they operate as an arm of hostile government(s), and perform intelligence operations against the US. WikiLeaks has published classified diplomatic cables, National Security Agency (NSA) and military documents, emails from the Democratic National Convention, and what it describes as “Vault 7”, which details the Central Intelligence Agency’s (CIA) cyber operations. All of these publications have been directed at the United States and its allies, while Wikileaks has refused to publish documents obtained by hacks on the Russian government (McLaughlin).

WikiLeaks: Then and Now

WikiLeaks’ founder and head, Julian Assange, was arrested in Stockholm in August 2010 over allegations of rape and molestation, and then in December he was arrested in London, facing extradition, but released after posting bail. Assange sought refuge at the Ecuadorian Embassy in London in June 2012, claiming political asylum. In December 2017, they gave him citizenship in preparation for a joint Ecuadorian-Russian operation to extract Assange from the embassy (Kirchgaessner et al.).

The U.S. response to WikiLeaks was slow until 2013, when Edward Snowden provided WikiLeaks with documents covering NSA mass surveillance operations. After this, the administration authorized the IC to start collecting intelligence against WikiLeaks and to coordinate with foreign intelligence services. Pompeo directed further resources to determine links between WikiLeaks and hostile foreign intelligence services and personnel (Strobel and Hoosenball). Under EO 12333 3.5(a), this placed WikiLeaks outside normal covert action and into “offensive counterintelligence” (Dorfman et al.).

Future Responses

The conduct of Wikileaks and Assange, as well as the overt determination of policy of the CIA, mark it as acting similarly to a hostile intelligence service. Therefore, traditional counterintelligence actions under EO 12333 3.5(a) have and should be taken without MON and congressional notification. This legal framework allowed the CIA to operate globally against hostile intelligence services.

The novel determination of “non-state hostile intelligence service” should be expanded to other organizations and individuals, codified in legislation and policy to counter future threats. Organizations that could be classified under this include the Wagner Group and Chinese State-Owned Enterprises engaged in economic espionage (Congressional Research Service; Wray). Congress should oversee these expanding operations to avoid future national upsets.

Works Cited