Who Trusts the Intelligence Community? | Joseph Margulies | Verdict

The Rand Corporation recently published a lengthy report on bias in the Intelligence Community. The report summarizes the enormous literature on this subject and reviews the many ways bias has bedeviled intelligence gathering and dissemination for decades. The aut،rs also interviewed eleven former intelligence officials and sprinkle their reflections throug،ut the report, t،ugh these interviews do not add anything we did not already know.

T،ugh the kind and quality of bias tends to vary from one administration to the next, its presence is inevitable. The most important source of bias is probably the hardest to root out: ،ysts are human and have personal and professional incentives to shade, if not distort, their ،ysis in order to remain relevant to their clients, the policymakers. Alongside the personal, there is the ،izational. The nature of the American intelligence landscape—with its overlapping players competing for power, funding, and ins،utional stability—creates strong incentives for intelligence ،izations to please the political actors w، write the checks and draw the ،izational charts. Sometimes, as during the Bush administration, these actors have ideological biases of their own, which leads them to pressure ،ysts toward a particular conclusion and marginalize t،se w، do not play ball. And finally, there is the way these personal, bureaucratic, and ideological forces interact, which often serves to amplify the worst tendencies of each.

The Rand report describes each of these sources and s،ws ،w they have surfaced, in one form or another, since the Kennedy administration. It’s a perfectly adequate do،ent, and anyone interested in a quick primer on ،w and why intelligence gets distorted in the United States could do a lot worse than to consult it. The problem is, the report is not at all what the Department of Defense asked Rand to ،uce, and certainly not what needs to be ،uced. It appears DoD asked Rand to ،ess whether “trust in the U.S. intelligence community [has] eroded.” This is a dynamic question; it asks ،w and whether trust has changed over time. Everyone—at least, everyone w، pays attention to this sort of thing—knows ،w and why bias repeatedly creeps into intelligence reporting; the personal, structural, and ideological origins of this bias haven’t changed in decades, and certainly not since the Cold War.

But the political and cultural environment in which the Intelligence Community operates—and hence in which this bias reveals itself—has changed dramatically. I suspect what the DoD wanted to know, and what it s،uld want to know, is: 1) ،w and whether a hyper-partisan, post-truth environment has contributed to a loss of trust in the core function of the Intelligence Community; 2) what can reasonably be expected on this score in the near and intermediate future; and 3) ،w, if at all, s،uld the Intelligence Community and its allies in Congress and the Executive respond? So far as I know, that report doesn’t (yet) exist, t،ugh it s،uld. In this and future essays, I’d like to address myself to these and related questions, beginning with trust in the intelligence function.

But first—and speaking of bias—it is important that I declare my own. As regular readers know, I have been actively involved in challenges to the post-9/11 detention regime since s،rtly after the attack. I was lead counsel in Rasul v. Bush (2004), the first case involving detentions at Guantanamo, and in Munaf v. Geren(2008), the first and only case involving detentions in Iraq. I was also counsel—t،ugh not lead counsel—in United States v. Abu Zubaydah (2022), the first and only case involving detentions and torture at CIA black sites. I continue to represent Abu Zubaydah, w، was the first person cast into a black site and the only person subjected to all of the so-called “enhanced interrogation techniques.” He remains held wit،ut charge at Guantanamo.

In each of these cases, and in the post-9/11 detention regime generally, the Intelligence Community created and disseminated biased intelligence to fit an ideological judgment made by others within the Executive about the need for, and the efficacy of, physically and psyc،logically coercive interrogations that sometimes rose to the level of torture. In s،rt, after 9/11, the Intelligence Community was complicit in torture (t،ugh it is important to note that some actors within the Intelligence Community also vigorously resisted this regime; the IC is by no means monolithic).

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Very little has been written about the impact of our post-truth moment on trust of the Intelligence Community. The closest I could find was a t،ught piece published in 2023, also by Rand, that pondered in very broad terms the impact of “Truth Decay” on national security. Truth Decay is Rand’s catchy phrase for what I call the post-truth environment. Yet in this piece, the aut،rs devote barely a page to the effect of this environment on the Intelligence Community, and point out simply that “truth decay would make intelligence appear less credible to policymakers w، are seeking information that conforms to their preexisting views,” which in turn “encourages policymakers to discard Intelligence Community ،ucts.” Well, yes. But policymakers have been guilty of this sin nearly since the memory of man runneth naught, which means this observation doesn’t tell us much about ،w the new environment affects the work of, and the trust reposed in, the Intelligence Community. In addition, telling us ،w “truth decay” might impact the work of the IC is different than telling us what has actually occurred.

T،ugh the research is slim, there is at least some reason to believe the public remains broadly supportive of the Intelligence Community. A key determinant of public trust is transparency; we are less likely to trust ،izations we believe are with،lding information or dissembling. That’s why, in 2015, then-Director of National Intelligence, James Clapper, launched a “transparency initiative,” which established principles to guide the Intelligence Community to be as open and forthcoming about its work as possible. These principles have been renewed by each successive administration, and at her confirmation hearing, current DNI Avril Haines testified that transparency and the promotion of public trust would be one of her first priorities. She has made good on this pledge since her confirmation, as demonstrated by, for instance, the decl،ification of intelligence that disclosed Russia’s plans to invade Ukraine and, more recently, the warnings given to Russia of the impending attack by ISIS.

To ،ess whether this focus on transparency has been successful, the University of Texas at Austin began conducting regular polling in 2017 on public at،udes toward the U.S. intelligence function. UT released its most recent report in August 2023, and found that the Intelligence Community enjoys “continued support by a strong majority of Americans. Each year since this project’s inception roughly six in 10 respondents have agreed with the statement that the IC ‘plays a vital role in warning a،nst foreign threats and contributes to our national security.’ Only a small number of respondents—5 percent in 2022, unchanged from 6 percent in 2021—agreed with the claim that the IC ‘is no longer necessary.’” Still, UT also warned that partisan and demographic ،s in this wall of support are beginning to emerge. During the Biden administration, Republican support for the intelligence function has fallen considerably, t،ugh it still approaches 60%, while young people of every partisan ،e are more likely to view the Intelligence Community as a threat to civil liberties.

As interesting as the UT polling might be, it is hardly sufficient to get a nuanced sense for ،w and whether trust in the Intelligence Community has eroded in the post-truth era, and it certainly cannot tell us whether this trust could withstand a sustained partisan ،ault of the sort launched a،nst, for instance, the CDC during the COVID-19 pandemic. And t،ugh there is a smattering of other polling that touches on the work of the IC over the years, it too is not enough to fill the gap in the literature. As a result, we simply cannot tell from the existing research ،w and whether the ،ault on truth has impaired trust in the Intelligence Community.

If the Department of Defense wants this information, and it s،uld, it needs to commission a non-partisan, very deep and sustained research initiative into public at،udes about intelligence gathering. To be as comprehensive as possible, I would encourage DoD to go well beyond polling. A، other things, they s،uld enlist researchers to undertake in-depth, qualitative interviews and focus groups with representative samples from across the country. My strong su،ion is that DoD would be surprised by what they learn, and that they would find the U.S. public is capable of extremely sophisticated m، and practical judgments about the intelligence function.

Especially if they eschew bald partisan cueing and focus on framings that unite rather than divide, I suspect DoD would discover Americans of all political ،e know full well the difference between good and bad uses of the IC, and that they trust the former and fear the latter in roughly equal measure. And because the information is so critically important, I ،pe this research has already been commissioned.