Intelligence Transparency and Foreign Threats to Elections

Intelligence Community Transparency Regarding the 2016 Russian Activities

The Russian government conducted sustained, persistent activities designed to influence the outcome of the 2016 election, and the U.S. government was slow both to understand the scope of those activities and to inform the public of their intent. The fact of the existence of the influence effort itself has been confirmed by extensive, bipartisan investigation of the Senate Select Committee on Intelligence (SSCI),¹ by the investigation of Special Counsel Robert Mueller,² and by the U.S. intelligence community.³ The Russian influence activities against the 2016 election began at least as far back as 2014, although throughout 2014 and 2015, these activities were unknown to the general public, and as far as has been publicly confirmed, the intelligence community was not seriously tracking the threat at that time.⁴ By July 2016, however, it was apparent to a reasonably informed outside observer that something was afoot. The Democratic National Committee (DNC) had been the victim of a cyberattack, and its internal emails published online. As I wrote then, over a weekend in July 2016, there was a “crescendo of reports regarding how Russia may be attempting to influence the presidential election.”⁵ At the time, reports indicated the FBI acknowledged it was conducting an investigation of the DNC hack.⁶ I suggested at the time that “the Intelligence Community will need to wrestle in the coming weeks with how much more information it can—or should—provide to the public on a matter of significant public interest—fair, honest and open elections.”⁷

Despite the bipartisan consensus that the Russians engaged in activities intended to influence the 2016 election,⁸ there has not been a consensus conclusion regarding two key outcomes: whether the Russian activities did, in fact, affect the outcome of the 2016 election,⁹ and if so, to what degree. Outside observers have argued that there was indeed an impact, even if that impact cannot be measured. As journalist Franklin Foer has observed, “No study has quantified how many votes have been swayed by the 10 million tweets that the [Internet Research Agency] has pumped into the digital world; no metric captures how its posts on Facebook and Instagram altered America’s emotional valence as it headed to the polls in 2016.”¹⁰ Volume I of the SSCI review repeatedly states that the intelligence community reports that it would not be in a position to know if actual voting systems had been attacked even if they had been.¹¹ Professor Kathleen Hall Jamieson has written, “I believe that it is more likely that Russian trolls changed the election’s outcome than that unicorns exist.”¹² On the other hand, a wide variety of factors can affect voter attitudes, behaviors, and Election Day turnout, and it is very difficult after the fact to determine what specifically affected the outcome of the election, particularly in states where the margin was close. But as far as is publicly available, audits of voting systems or vote tabulations were not conducted of state voting systems. When it comes to measuring the effect of foreign interference in our democracy, we don’t know what we don’t know.

It was not until three months after the DNC cyberattack that the intelligence community released its joint assessment. Although, as discussed further below, there were legitimate reasons for serious deliberation and caution concerning the value and impact of providing greater transparency about malign foreign interference efforts, on balance, that assessment, arriving on October 7, 2016, was too little, and it was too late.

When it finally was released publicly, the October 2016 statement attributed the DNC hack and leak to the Russian government:

The U.S. Intelligence Community (USIC) is confident that the Russian Government directed the recent compromises of e-mails from US persons and institutions, including from US political organizations. The recent disclosures of alleged hacked e-mails on sites like DCLeaks.com and WikiLeaks and by the Guccifer 2.0 online persona are consistent with the methods and motivations of Russian-directed efforts.”¹³

The statement also acknowledged that certain unnamed states had been subject to “scanning and probing of their election-related systems,” but the intelligence community was not prepared at that time to confirm attribution of that activity to the Russian government. It was not until January 6, 2017, following direction from then-President Barack Obama and just weeks before President Donald Trump was inaugurated, that the intelligence community released a comprehensive assessment. That review’s list of key judgments began:

Russian efforts to influence the 2016 US presidential election represent the most recent expression of Moscow’s longstanding desire to undermine the US-led liberal democratic order, but these activities demonstrated a significant escalation in directness, level of activity, and scope of effort compared to previous operations.

We assess Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election. Russia’s goals were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump. We have high confidence in these judgments.¹⁴

Prior to the 2016 election, however, there were legitimate, and serious, reasons both the intelligence community and the political leadership were reluctant to release more information. In the run-up to the 2016 election, political considerations, including the assessment that releasing more information to the public would make the incumbent administration appear to be using intelligence for political purposes, led senior leaders to exercise extreme caution in publicizing Russian interference activities.¹⁵

While the considerations of 2016 are understandable, neither the intelligence community, nor the executive branch more broadly, have reason to be caught off guard again. Greater transparency is needed going forward, for the 2020 election and beyond. Today the intelligence community, its congressional overseers, and the public are well aware of foreign efforts to influence elections and democratic processes. Lessons learned should be applied.

Intelligence Community Public Statements

Foreign Interference, 2018 Midterm Elections, and the 2020 Campaign Season

Since 2016, foreign influence activities against U.S. elections and democratic processes have continued, and responsible federal agencies were more deliberate about providing warnings about threats to the 2018 midterm elections.¹⁶ In October 2018, the Office of the Director of National Intelligence (ODNI), Department of Justice (DOJ), Federal Bureau of Investigation (FBI), and Department of Homeland Security (DHS) released a joint statement warning of “ongoing campaigns by Russia, China and other foreign actors, including Iran, to undermine confidence in democratic institutions and influence public sentiment and government policies,” primarily through social media and propaganda outlets.¹⁷ A joint statement from the same agencies on November 5, 2018, provided that there were “no indication of compromise of our nation’s election infrastructure” but that “Americans should be aware that foreign actors—and Russia in particular—continue to try to influence public sentiment and voter perceptions through actions intended to sow discord.”¹⁸

Approaching the 2020 campaign, the relevant agencies have communicated the status of foreign threats to the election publicly, but at a high level of generality. In November 2019, immediately before the 2019 off-cycle election, DHS released a joint statement from seven departments and agencies emphasizing that the federal government has prioritized election security. The statement reiterated that “Russia, China, Iran, and other foreign malicious actors all will seek to interfere in the voting process or influence voter perceptions” by means including “social media campaigns, directing disinformation operations or conducting disruptive or destructive cyber-attacks on state and local infrastructure.”¹⁹ A similar statement was jointly issued in advance of the Super Tuesday primaries in March 2020.²⁰

As the country approaches the November 2020 election, the threat of foreign interference remains. Although the Russian government may not duplicate its 2016 activities through its Internet Research Agency, it has adapted its techniques and continues its online influence efforts. For example, the Russian government used race as a wedge issue in its influence activities in 2016, and it is reportedly seeking to inflame racial tensions—this time through means more difficult to detect—in order to influence the November election.²¹

Responsibilities and Risks

In considering whether it is appropriate for the intelligence community to lean harder into disclosure about foreign intelligence activities intended to affect the election, examining responsibilities is appropriate: To whom does the intelligence community owe information? The traditional view of the intelligence community’s proper role is that it primarily exists, at a strategic level, to inform policymakers, so that they can make educated decisions affecting the nation’s national security, defense, and foreign policy. At a tactical level, the intelligence community also informs warfighters and intelligence agents, such as those conducting counterterrorism or counterintelligence activities, to support their planning and operations. The president, traditionally, is considered the intelligence community’s most important consumer. According to this traditional framework, the intelligence community probably views its role in combating foreign election interference as critical, but a supporting role.

By law, the intelligence community is also required to “fully and currently” inform the Congress; this process takes place through the intelligence committees in each chamber, fulfilling Congress’s constitutional representative function.²² In addition to this ongoing, overarching requirement, there are numerous specific statutory requirements for the intelligence community or other relevant federal departments and agencies to brief the intelligence committees about specific intelligence-related activities. As a practical matter, intelligence oversight, therefore, occurs in what may be described as horizontal accountability—oversight that takes place across the government: internally within the executive branch, by the legislative branch, and, though to a lesser degree, by the judiciary in limited circumstances. Horizontal accountability is integral to our system of representative democracy and was carefully designed to apply to the modern system of congressional intelligence oversight through the manner in which the intelligence committees conduct their work.

Less well developed, however, is a recognized understanding for what responsibilities the intelligence community has to the public, other than the few public reports mandated by law regarding, for example, certain surveillance activities. This is by design. The intelligence committees were created in the late 1970s to serve as proxies for not only the public, but also for the rest of Congress. The intent was to provide for congressional oversight in a way that would adequately protect classified information and activities. But two relatively recent developments have placed severe stress on that representative design: the first is the lack of public confidence in the committees’ effective conduct of oversight to sufficiently accommodate protection of privacy and civil liberties;²³ the second is hyper-partisanship, particularly that which has been visible on the House Permanent Selection Committee on Intelligence over the past several years.

As a result, at present, briefing to the intelligence committees about significant election threats may be insufficient for two reasons. First, the public may not have confidence that the information is being relayed without political spin. Second, the committees have not sufficiently exercised their informing function, to make sure that the rest of Congress—and the public—receives information it needs about foreign influence during a campaign season.²⁴ The question then becomes what responsibilities the intelligence community has to declassify and release information about foreign threats to elections directly to the public.

One argument in favor of greater public intelligence community transparency is based on a theory of the “duty to warn.” The duty to warn is currently interpreted in the framework of specific policies and procedures as applying to times when intelligence collection reveals information about a specific threat that could cause death or serious harm.²⁵ Outside the intelligence community, in 2018, the Department of Justice adopted a new policy, “Disclosure of Foreign Influence Operations.” The policy includes direction for when the department can and should notify relevant parties about malign foreign activities, and it includes a provision regarding public notification, when “federal or national interests in [public disclosure] outweigh any countervailing considerations.”²⁶ The question then becomes how that standard, if applied to the intelligence community, could work in practice.

A second argument in favor of greater intelligence community direct communication to the public is through the lens of public service itself. The intelligence community exists to protect national security, it is funded by American taxpayers, and therefore it is accountable to the public. There is an argument that the intelligence community is no different from any other federal government entity: it works for the American people. In addition, evolving conceptions of the public’s role in protecting national security could lend credibility to the view that more disclosure is appropriate. Just as citizens are being increasingly relied on to report potential terrorist threats (“see something, say something”), they are now being relied upon to better inform themselves about how to distinguish between legitimate sources of information and disinformation, including from foreign adversaries.

On the other hand, a counterargument to increased public communication is that the intelligence community is not the party responsible for informing the public, but instead owes its disclosures to policymakers, who are the elected representatives and therefore carry the responsibility of representative government to inform the public.

For a quarter century, the intelligence community used at least one consistent public forum to communicate to Congress and the public about important threats to national security: the annual worldwide threat briefing. In 2020, that briefing has not taken place, despite its having been held consistently for the past 25 years.²⁷

Over the past several years, the intelligence community, under the leadership of the Director of National Intelligence (DNI) has developed a framework for guiding transparency initiatives, which apply to the whole-of-government effort to combat foreign election interference. These efforts have been primarily in response to a backlash against intelligence community activities in response to the unauthorized disclosures begun by Edward Snowden in 2013. In 2015, the ODNI issued “Principles of Transparency for the Intelligence Community”²⁸ and a “Principles of Intelligence Transparency Implementation Plan.”²⁹ And the most recent National Intelligence Strategy includes those same transparency principles in a separate “Enterprise Objective” on privacy, civil liberties, and transparency.³⁰ The four transparency principles are:

• Provide appropriate transparency to enhance public understanding of the intelligence community.
• Be proactive and clear in making information publicly available.
• Consider the public interest when protecting information about intelligence sources, methods, and activities.
• Align intelligence community roles, resources, processes, and policies to support transparency implementation.

Much of the intelligence community transparency since the development of these principles has been about the way the intelligence community does its work—the laws, policies, and procedures under which the community operates. But given the need to provide more transparency about the substance of what the intelligence community is learning about significant threats to national security—including foreign influence operations intended to affect the election and proper functioning of the country’s democracy—its transparency activities should strive to be substantive, as well as timely, accurate, and meaningful.³¹

The risks of greater transparency about foreign threats to democratic processes, including elections, are not insignificant. Risks of disclosure include but are not limited to:

• An intelligence assessment could turn out to be wrong. The consequences of such a mistake are severe: historically, incorrect intelligence can lead to war, death or injury of intelligence or other U.S. officials, and an erosion of confidence in the community’s work. In the election context, an incorrect assessment that is made public might undermine confidence in the election outcome, something that government officials worried about in 2016.³²
• A disclosure could reveal sources and methods, which could tip off adversaries and compromise future intelligence collection.
• A disclosure could be interpreted as politically motivated and thus could lessen confidence in an election outcome.
• The intelligence community could be increasingly perceived as politicized.³³
• A disclosure could undermine confidence in the election, particularly if the intelligence revealed indicated favoritism by a foreign power toward one candidate.

Recommendations: Roadmap for Greater Transparency

Recommendations for the Intelligence Community

For the 2020 election season, the intelligence community should approach transparency about malign foreign threats to the election with the following recommendations in mind:

Continue to Work Behind the Scenes

The intelligence community should continue to conduct its work behind the scenes to protect the United States from election-related foreign interference activities, as appropriate. This work includes collaborating with international intelligence partners to identify, assess, and disrupt malign foreign activities intended to interfere with democratic elections and working with the FBI and DHS to notify organizations and individuals who may be targeted under the umbrella of influence activities. It also means providing briefings to candidates and campaigns about foreign election-interference activities, on an ongoing basis. These briefings should include the same content and occur concurrently or as close together in timing as possible.

Adhere to Proper Order of Operations

In order to protect its reputation for nonpolitical intelligence assessment, the intelligence community should adhere to the proper order of operations: executive branch policymakers should be informed first, followed by congressional overseers on the intelligence committees. Briefings to congressional members and staff should be made available on a bipartisan basis, and requests for separate (partisan) briefings should be rejected. If the information is of national significance—that is, if it constitutes a substantial threat to national security—then the intelligence community leadership should conduct briefings for all of Congress.

Lean In to Declassification, Consistent with Protection of Sources and Methods

Once appropriate policymakers have been briefed, and if there is reasonable consensus among the intelligence community chiefs with relevant expertise and analysis responsibilities, the DNI should declassify significant intelligence assessments, to the extent possible consistent with protection of sensitive sources and methods, and release them publicly.³⁴ Short written joint agency statements are a starting point but are not, in and of themselves, sufficient to pierce national consciousness and mitigate the effects of foreign influence. Responsible, credible, informed executive branch leaders should communicate through the media to ensure that accurate and timely information reaches the public in a responsible way.

Recommendations for Congress

Congressional overseers should approach transparency about malign foreign threats to the election with the following recommendations in mind:

Recommit to Bipartisanship in Intelligence Oversight

Intelligence oversight is most efficiently conducted when it is bipartisan. The SSCI has demonstrated this principle through its work on its multi-volume review of Russian interference activities in 2016. Elections free from foreign interference are not a partisan issue; they are a fundamental component of the proper functioning of our democracy. Congressional oversight over intelligence assessments, cybersecurity preparedness of electoral systems, and the fight against efforts to drive wedges through American society on sensitive cultural issues must be conducted in a bipartisan manner.

Mandate the Annual Worldwide Threats Briefing through Legislation

Congress should legislate requiring the annual production of the intelligence community’s Worldwide Threat Assessment. This year appears to be the first in at least 25 years where the annual worldwide threats hearing was not held. As a result, the annual public statement was not submitted to Congress nor released publicly. The National Security Act should be amended to require this statement and briefing on or before March 1 of each calendar year.

Legislate Requirements for Intelligence Community Assessments About Election Threats

One way to avoid internal executive branch wrangling over whether it is appropriate to disclose to Congress, and to the public, the nature and extent of foreign election interference is to require both assessment and reporting. Congress should require assessments of such interference and set a timetable for their production and delivery to Congress and the public so that they are expected and routine, and their production and publication are less likely to be interpreted as being politically motivated.

Conclusion

The country cannot afford to wait for an after-the-fact, four-year, five-volume, heavily redacted written review explaining how a foreign government influenced the outcome of the 2020 election. The federal government agencies responsible for providing warning about threats to the administration of elections and about foreign efforts to influence voter attitudes have increased their efforts to communicate publicly at a high level of generality since 2016. It is critical that the intelligence community lean forward in providing warning to policymakers and the public regarding foreign efforts to affect our elections, and the proper functioning of our democracy that those elections represent.

Acknowledgements

This paper was informed, in part, by a virtual roundtable discussion of a bipartisan group of former intelligence community professionals and former congressional staff members, and outside academic experts, held in May 2020. Thank you to Mieke Eoyang, Andrea Kendall-Taylor, and Dakota Rudesill for helpful comments on an earlier draft of this report. Internally to CNAS, the author is grateful for editing by Maura McCarthy, research assistance provided by Katie Galgano, and copyediting by Caroline Schweiter. This paper is the fourth in a series on congressional intelligence oversight made possible by the generous support of the William and Flora Hewlett Foundation.