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CNN's May 6, 2022 White House walks a fine line with intelligence sharing in Ukraine

"I wouldn't describe any line as thin or imaginary," Pentagon press secretary John Kirby told CNN's Briana Keilar on "New Day" Friday. "The intelligence that we provide to Ukraine is legal, is lawful. It's legitimate and it's limited. And we're very careful about what we share and when we share it."

The Biden administration has also provided billions of dollars in weapons and has publicly acknowledged it is giving tactical intelligence to the Ukrainians. But as the war has continued and Ukraine has taken out numerous high-profile targets, the White House has sought to carefully calibrate how it describes the impacts that intelligence has on the battlefield.

To some former officials, it's a distinction without a difference.

update: the block quoted item is now available as a clip within this CNN video.

I'm not asking what the Pentagon spokesman might have meant.

I'm not asking what you think legal & lawful intelligence might be.

Question: Is there a recognized concept of legal and/or lawful intelligence, or legal and/or lawful collection and distribution of intelligence to another country?

I suppose my question is premised on the possibility that the Pentagon's press secretary chooses their words carefully and so it's likely that this is a real and recognized concept and not simply a word salad.

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    There definitely is a concept. Try leaking some leaking some classified info yourself, and you'll soon find out. The catch here is that the executive has a lot of power in deciding that classification and sharing, so it's somewhat of a hollow claim for them say it's legal in this case, as those kinds of decisions are not really subject to much external review, as far as I know.
    – Fizz
    May 7 at 8:55
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    The UK has RIPA the US is likely to have a similar legal basis for intelligence collection.
    – Jontia
    May 7 at 9:49
  • Do you mean legal within the US or legal according to international law? I'm not sure what you want to know and therefore I'm also not sure if Fizz's answer is relevant for the question.
    – Trilarion
    May 8 at 8:09
  • @Trilarion I won't pre-constrain answers to that degree, I don't think this needs two separate question posts because there would still be so much overlap of material. If you have an answer for either it will certainly be valuable to me and/or to others; certainly Fizz's answer is.
    – uhoh
    May 8 at 11:30
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    @uhoh Okay. For me it's not so interesting to know about whether the US has some legal groundwork for sharing intelligence with others but rather if internationally sharing intelligence is seen as participating in a conflict or not. If you do not get any answer on that, I might ask especificados for this.
    – Trilarion
    May 8 at 14:36

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Here's the entire relevant section from a 2019 CRS report on the matter [minus the footnotes]:

Policy and Legal Authorities

Policy and authorities for initiating and managing ties between the [intelligence community] IC and foreign intelligence services, and specifying the roles and responsibilities of personnel supporting these relationships, are found in statute, executive orders, and intelligence directives.

Intelligence Community Directive (ICD)-403, Foreign Disclosure and Release of Classified National Intelligence, states U.S. Government policy on disclosure of U.S. intelligence to foreign state or non-state intelligence entities:

U.S. intelligence is a national asset to be conserved and protected and will be shared with foreign entities only when consistent with U.S. national security and foreign policy objectives and when an identifiable benefit can be expected to accrue to the U.S. It is the policy of the U.S. Government to share intelligence with foreign governments whenever it is consistent with U.S. law and clearly in the national interest to do so, and when it is intended for a specific purpose and general limited in duration.

ICD-403 also requires that determinations to disclose or release U.S. intelligence should take into account the professional ability of a foreign intelligence service to protect the classified intelligence from subsequent compromise posing a risk to U.S. national security. However,

In exceptional cases, there may be a benefit to U.S. interests to disclose or release intelligence to foreign entities under conditions where the recipient’s safeguards are likely to be inadequate. In such cases, the anticipated benefits must outweigh the potential damage of a likely compromise.

Intelligence Community Policy Guidance 403.1 (ICPG-403.1) further expounds policy in ICD- 403 by providing criteria for disclosing or releasing classified intelligence to a foreign intelligence entity. Its guidance pertains to classified U.S. intelligence only, which does not include other classified information, such as defense, military, or diplomatic information that is not intelligence. Disclosure or release of classified intelligence is appropriate when it:

  • is consistent with U.S. foreign policy and national security objectives;
  • can be expected to result in an identifiable, commensurate benefit to the U.S.;
  • supports a U.S. diplomatic, political, economic, military, or security policy or treaties; and
  • aids U.S. intelligence or counterintelligence activities.

An intelligence sharing agreement is often formalized in a memorandum of understanding (MOU) between the U.S. IC element and its foreign intelligence counterpart. There are hundreds of these agreements between the IC and foreign intelligence services. They are not legally binding and are generally classified. [5 U.S.C. §552(c)(1) provides this exception from normal foreign contacts disclosure requirement.] This can present challenges for congressional oversight. As one observer of the Intelligence Community remarked, “The near invisibility of liaison arrangements to oversight by elected officials is problematic. Oversight mechanisms have not kept pace with global issues.”

For military exchanges that include other types of classified information as well as intelligence, the Department of Defense (DOD) uses General Security of Military Information Agreements (GSOMIA) that detail the level of classification for the exchange and the categories of information that can be exchanged. Whether an MOU or GSOMIA, these agreements provide formal frameworks for intelligence relationships that can be fundamental to broader security relationships (legal enforceability notwithstanding).

(Emphasis mine.) So, as I noted in an early comment of mine, the executive essentially defines and implements what is legal in this area, with little external oversight. Thus emphasizing the legality of the matter is somewhat hollow, in my opinion.

It's been noted, for instance, in one recent article I read that the Biden administration has said they decided not to share with Ukrainians exact names and locations of "senior" Russian commanders they know about, only (as noted in another piece) the positions of "mobile headquarters"... but that it would also be entirely legal for them to given Ukrainians much more detailed info in that regard. The only reason for not doing that is that the Biden administration thinks doing so would be interpreted as escalatory by the Russians.

Actually, that was just the lead section of CRS report; there are two further sub-sections there spanning a couple more pages, which make a full quote a bit unwieldy, but the rest is talking about how authority is delegated further down the chain, and to very selectively summarize/quote that...

The DNI has the statutory authority to “oversee the coordination between elements of the Intelligence Community and the intelligence or security services of foreign governments or international organizations on all matters involving intelligence related to the national security or involving intelligence acquired through clandestine means.” [50 U.S.C. §3024(k)]

[...]

The Director of the CIA (D/CIA) is responsible for implementing the DNI’s foreign intelligence engagement policy and coordinating foreign intelligence relationships. These responsibilities are specified in Executive Order (EO) 12333, United States Intelligence Activities: CIA has the authority “under the direction and guidance of the DNI ... to coordinate the implementation of intelligence and counterintelligence relationships between elements of the IC and the intelligence or security services of foreign governments or international organizations.”

As you an see, it gets into the realm of Executive Orders and then IC agencies own rules (like DNI's ICDs) pretty quickly from that.

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