But, by putting the CIA’s analytic judgment (that one of Russia’s objectives in interfering in the 2016 election was to help then-candidate Trump) into the crosshairs of the Justice Department, as reported by several news organizations
, the president and Attorney General William P. Barr are crossing another line.
I see no problem with a Justice Department review of whether the CIA and other intelligence agencies lived up to their legal and regulatory responsibilities as to how they handled any information related to U.S. persons — U.S. citizens and U.S. nationals. There are strict rules in this regard — the most important promulgated by multiple attorneys general over time — and, in our divisive political environment, it would be beneficial to our democracy for the country to know whether the rules were followed or not.
Nor am I arguing that CIA analytic judgments should be beyond review, but that has already happened in this case. Both the Senate
and the House intelligence committees have done reviews of the analysis, with the bipartisan Senate committee calling the overall analysis a “sound intelligence product.” The partisan House committee split on the question of the specific judgment about Russian President Vladimir Putin’s intent to help Trump.
What I am arguing is that the Justice Department has no standing to review the CIA’s analytic judgment. The whole idea is inappropriate and dangerous. It is certainly unprecedented, and there are good reasons it has never been done before.
I have great respect for John H. Durham
, the U.S. attorney for the District of Connecticut tapped by Barr to do the review. But, while Durham is familiar with the CIA from previous investigations, he and his team have no experience with, or knowledge of, the process of intelligence analysis itself. He and his team could well impose a hard-to-meet law enforcement standard on the analysts’ conclusions. That would create a burden of proof that might be right in a court of law but would be risky and unwise in the assessment of intelligence for real-time decision-making.
A similarly dangerous consequence of a Justice Department review of analysis is the chilling effect it may have on analysts and analysis. Out of prudence, any analyst asked to submit to an interview with Durham’s investigators will want to have a personal lawyer nearby — likely a first for many, if not all, of the analysts. This will all be watched closely inside the intelligence community: The prospect that Justice Department prosecutors could ask questions about how an analyst came to a specific conclusion — along with the thought that there may be legal consequences for having done so — could lead analysts to withhold their judgments or even decide that this profession is not for them. We lose as a nation with either outcome.
If the shoe were on the other foot — if a senior intelligence community official were asked to review decisions made by the FBI and career prosecutors — how do we think the attorney general, or career prosecutors, would react? With loud protests, no doubt.
There seems to be an erroneous belief among some that if the analysts had not come to the conclusion that Putin was trying to help Trump, there would not have been an FBI counterintelligence investigation into the Trump campaign. This belief is misplaced; there was likely never a link between a judgment by the intelligence community analysts and a decision by the FBI on whether to open a counterintelligence case. The two were most likely completely separate. And, further, it seems that the analytic judgment about Russian intent came after the opening of the counterintelligence investigation. If so, it could not have been a predicate for the investigation.
A Justice-led review of the quality of intelligence analysis represents yet another weakening of the intelligence community as an institution. The country could be paying for these kinds of decisions for years to come.