Sections for: conclusions
1. guatemala/otr02/iob_mu.htm
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CONCLUSIONS AND RECOMMENDATIONS </title> <text>l. Intelligence activities
The intelligence community carried out activities in support of US policy objectives. These objectives included supporting the transition to and strengthening of civilian democratic government in Guatemala, encouraging respect for human rights, combating illegal narcotics trafficking, fighting the communist insurgency, and, in recent years, advancing the peace process. For its part, CIA established a liaison relationship with Guatemalan security services widely known to have reprehensible human rights records, and it continued covert aid after the cutoff of overt military aid in 1990. This liaison relationship and continued covert aid occurred with the knowledge of the National Security Council, the State Department, and the Congressional oversight committees.
Contrary to public allegations, CIA did not increase covert funding for Guatemala to compensate for the cut-off of military aid in 1990.
2. Relationships with assets who may have violated human rights
Credible allegations of serious human rights abuse were made against several then-active CIA assets. In addition, allegations of varying seriousness, specificity, and credibility were made against persons who later became assets, as well as against a number of CIA liaison contacts. Recommendation:
US intelligence agencies should, while maintaining the ability to use key assets with such histories when national interests warrant, establish clear guidance on the recruitment and retention of assets with human rights or criminal allegations. Actions taken:
Guidance has been recently issued for dealing with serious human rights violations or crimes of violence by assets and liaison services. We believe this guidance strikes an appropriate balance by generally barring such relationships but permitting appropriately senior officials to authorize them in special cases when national security interests warrant. 3. Notification of ambassadors and other policy-makers
CIA did not inform ambassadors and other policy-makers before late l994 of allegations of human rights abuse by Guatemalan assets as such claims came to light. Recommendations:
The Department of State and CIA should amend the State-CIA agreement to ensure that ambassadors and other policy-makers are informed of station activities and asset and liaison relationships that have significant policy implications. Notification of such activities and relationships should, at a minimum, include reasonably credible allegations of asset or liaison involvement in assassination, kidnapping, or torture, and particularly any involvement in the death or abuse of a US citizen. CIA should provide ambassadors detailed initial and continuing briefings on intelligence activities in their countries. The Department of State, at a level of sufficient authority, should ensure that ambassadors attend such briefings and that they receive continuing instruction on the importance of protecting intelligence sources and methods.
Actions taken:
In October 1995, CIA disseminated a guidance cable in an effort to clarify the State-CIA agreement of 1977. We believe, however, that a more durable and effective solution would be to amend the agreement itself. 4. Provision of information to families and survivors
Although none of the intelligence we reviewed conclusively identified the perpetrators in any of the cases involving American victims, the State Department should have sought authorization from intelligence agencies to include in its briefings to family members or surviving victims more information drawn from intelligence reports. NSA's inadequate responses to FOIA requests by the Blake family and Meredith Larson were the result of data searches that were overly narrow and the lack of a system that would allow NSA to provide more information without compromising its sources and methods.
Recommendations:
The Department of State should implement a program to ensure that its bureaus consider including appropriate intelligence-based information in briefings to US citizens (or US relatives of those) who are killed, abducted, or tortured abroad-perhaps without identifying the information as being intelligence-based. The bureaus should work with intelligence agencies to ensure that sources and methods are not compromised in this process. NSA, with assistance from DOD and the NSC, should explore how to develop a system by which information from signals intelligence can usefully be shared without compromising NSA's sensitive methods. This could perhaps be achieved by amending the FOIA to permit the consolidation of DOD or intelligence community responses so that NSA information can be released without being identified as signals intelligence.
Actions taken:
An interagency group is now studying ways to improve the provision of information to US citizens in human rights cases. The current leadership at NSA has recently improved the agency's responsiveness to FOIA requests by substantially reducing their processing time and by attempting to release more useful information in such responses.
5. Accountability for those who compromise intelligence information
The system for collecting and disseminating intelligence information can function properly only if US executive and legislative branch officials are held accountable should they compromise or improperly handle classified information. A lack of accountability puts sources of intelligence at risk. The effect is to discourage the proper provision of information by intelligence agencies to intelligence consumers and the oversight community, and ultimately to jeopardize the ability of the United States to recruit sources and to collect intelligence in the furtherance of its national interests around the world. Ample avenues exist by which well-intentioned officials can raise grievances concerning intelligence activities--either through the executive branch to the National Security Advisor or the President, or through the Congressional oversight committees to the Congressional leadership--without publicly revealing sensitive intelligence information. Recommendation:
The executive and legislative branches should hold accountable any officials known to have compromised or improperly handled classified information. 6. Involvement by US officials
Dianna Ortiz has described a man who she believes to be North American who she said rescued her from her torture but warned her to tell no one about it and told her that he was taking her to a friend at the US embassy. This raises the possibility that the man had some association with the US government. The Ortiz case is still under investigation by the Department of Justice; the IOB will accordingly refrain from drawing conclusions on the case at this time. Subject to resolution of the Ortiz investigation, we uncovered no indication that US government officials were involved in or had prior knowledge of the death, torture, or disappearance of US or Guatemalan citizens. 7. Headquarters knowledge of station activities
We found no evidence that Guatemala station was a "rogue" station operating independently of control by its headquarters. Rather, the station generally kept CIA's Directorate of Operations (DO) headquarters well-informed of all developments, negative or otherwise, including allegations against assets as they surfaced. 8. Congressional notification
Congress was not appropriately "fully and currently" informed by the CIA, particularly concerning the death of Michael DeVine. Though the evidence is conflicting, we do not believe that CIA officials acted with an intent to mislead Congress. Rather, the primary reasons for this failure to inform were the absence of a systematic notification process and inadequate emphasis upon reporting issues by CIA management. CIA's semi-annual human rights reports to Congress were incomplete and created a misleading impression. CIA managers at headquarters should have recognized this effect and ensured that Congress received an accurate portrayal of the human rights situation in Guatemala.
Although we found no failures in Congressional notification by Department of Defense intelligence agencies as significant as those by CIA, we did find that during the period we reviewed, DOD agencies also lacked a systematic notification process.
Recommendation:
CIA and DOD should both implement a systematic process by which timely decisions on Congressional notification of intelligence issues are made, carried out, and recorded. Actions taken:
CIA, DIA, and NSA have implemented new systems to review their activities to determine which issues should be briefed to Congress. The information is now usually provided to Congress in written memoranda, and a record is made of such notifications. We believe these new systems will improve performance and accountability in Congressional notification. 9. Referral of Alpirez allegation to DOJ
The performance of both CIA and DOJ was less thorough than was warranted with regard to the criminal referral of the allegation that Colonel Alpirez was present at DeVine's death. CIA failed to communicate information that would have led to a more vigorous DOJ investigation. We do not believe, however, that this failure violated the law, nor do we believe that it affected DOJ's ultimate determination in the case. Recommendation:
DOJ and the intelligence agencies should institute new internal and inter-agency procedures to ensure significant criminal referrals receive appropriate attention. Actions taken:
DOJ has implemented new internal procedures to improve tracking of crimes reports that it receives from intelligence agencies, and it has reached a new Memorandum of Understanding with the agencies to ensure that significant crime reports receive special attention. We believe these improvements will reduce the chances of the sort of breakdown in the process that occurred with regard to the DeVine crimes report. 10. Asset validation system
In part because performance in asset validation was not significantly reflected in the CIA DO's promotion and rewards systems, there was a lack of emphasis on validation at station level. Even if the asset validation system had been functioning as intended, however, it would not have highlighted human rights issues, because this system had been designed to focus almost exclusively upon assets' vulnerability to counterintelligence and upon eliminating non-producing assets from the payroll. Recommendation:
US intelligence agencies should ensure that their asset validation systems are accorded appropriate weight in internal performance-appraisal and rewards systems. Additionally, they should ensure that their validation systems consider not only counterintelligence and productivity issues, but also derogatory information on assets (including allegations of human rights abuse) from both governmental and nongovernmental sources. Actions taken:
CIA recently expanded its asset validation system to consider derogatory allegations against assets and increased the importance of asset validation in performance appraisals. 11. Reliability of allegations against Alpirez
The widely publicized allegation that Guatemalan Colonel Alpirez directed or was present at the murder of US citizen Michael DeVine appears to have been based upon information that was unreliable and was contradicted by other evidence. Alpirez, however, clearly participated in the cover-up of the military's role in DeVine's death. Numerous other reports also contradict the subsequent allegation that Colonel Alpirez killed guerrilla leader Efrain Bamaca Velasquez or was present at his death. We are convinced, however, that Alpirez participated in at least part of Bamaca's interrogation. We believe, but lack definitive proof, that Bamaca's interrogation included torture and that Bamaca was killed within about a year of being captured. We believe assets or liaison contacts were likely involved or knowledgeable, but we found no indication that the CIA was aware of these links during its relationships with these individuals. 12. Alleged NSA document destruction
The allegation that NSA and Army officials destroyed records related to the activity of US intelligence agencies in Guatemala (which was communicated to a member of Congress purportedly on NSA letterhead) appears to have been fabricated. An investigating US Attorney has also found no basis for the charge. 13. Storage and retrieval of intelligence information
The State Department's Bureau of Intelligence and Research (INR) lacked--and still lacks--an adequate capability for document storage and for the retrieval of intelligence information from its electronic database. CIA's Directorate of Operations records system was inadequate and degraded the ability of headquarters and station officers to have access to all relevant and available information.
Recommendation:
The State Department and CIA should promptly examine and remedy the shortcomings in their systems for storing and retrieving intelligence information. Actions taken:
The DO has improved its records system to facilitate more thorough searches of its database and is currently working to digitize all of its nonelectronic holdings. 14. Follow-up evaluation of implementation
Recommendation:
Agency inspectors general should evaluate the implementation of these recommendations and any actions taken thereupon, and should report the results of their evaluations to the IOB within one year of the date of this report.
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<title>Conclusions concerning CIA Congressional notification </title>
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The IOB found the CIA's performance in notifying Congress to have been inadequate. Specifically, the IOB concluded that the CIA leadership violated its statutory obligation to keep the Congressional oversight committees fully and currently informed under Section 413 of Title 50 of the U.S. Code. Though this statute is not criminal and the standard is too broad to be fulfilled to the letter, CIA officers, particularly senior leaders at CIA headquarters, were derelict in failing to provide information they should have provided under even the narrowest reading of the statute. In examining specific instances in which information was not provided to Congress, the IOB considered the available evidence and, on balance, judged that CIA officials did not act with intent to mislead Congress--though they did intentionally withhold some information, in substantial part due to concerns for the protection of sources. We found the primary causes of this failure in Congressional notification to have been the absence of a systematic notification process and inadequate emphasis from the CIA's leadership. The ad hoc manner in which Congressional notifications were handled--combined with the DO's general disinclination to volunteer sensitive information even to authorized recipients--created an environment that bred notification failures. For this we fault the CIA and DO leadership back to the enactment of the oversight statute in 1980. The CIA has recently instituted a new system to review its activities for issues that should be briefed to Congress. Such information is now usually provided to Congress in written memoranda, and a record is made of such notifications. This new system should improve performance and accountability in Congressional notification.
The IOB also found that semi-annual reports from the CIA to Congress on what the CIA was doing to improve respect for human rights in Guatemala created a misleading impression on the status of human rights by focusing exclusively on positive contributions. The IOB believes CIA headquarters managers should have recognized this effect and ensured, whether through the reports or through other means, that Congress received an accurate portrayal of the human rights situation.
With respect to criminal liability concerning these CIA nondisclosures, we have found no adequate basis to conclude that the conduct of any of the relevant CIA officials violated any criminal statute. First, the statute requiring "full and current" disclosure is not a criminal statute.
Second, it appears that section 1505 of Title 18 of the US Code, the statute that criminalizes the obstruction of a Congressional "inquiry or investigation," was not violated. It is doubtful that an "inquiry or investigation" within the meaning of the statute was underway during the period of time at issue. It also appears that, at least within the D.C. Circuit, this statute is violated only if an official encouraged, influenced, or conspired with another to mislead Congress, see United States v. Poindexter , 951 F.2d 369, 385 (D.C. Cir. 1991 ); we have found no persuasive evidence of this element and believe none can be found.
Third, the false statement statute, section 1001 of Title 18, is likely inapplicable because a recent Supreme Court decision strongly suggests that statements to Congress are outside the statute's coverage, see Hubbard v. United States , 115 S. Ct. 1754, 1765 (1995). In addition, we note that, as a general proposition, "knowingly" withholding information from a congressional committee is not sufficient to establish the mental state necessary to constitute the criminal offense of misleading Congress. Rather, the action must also be "willful." Thus, even if the false statement and obstruction of Congress statutes were available in this context, both would require that the defendant acted "knowingly"--that is, voluntarily and purposely and not because of mistake, inadvertence, or accident. Both would also require that the defendant acted "willfully"--that is, with the intent to bring about a particular result or to do something that the law forbids. The Board does not believe that the available facts are sufficient to constitute a violation of either of these statutes.
Fourth, we have concluded that there is an insufficient basis to believe that a violation of section 371 of Title 18 occurred. Section 371, as construed by the federal courts, proscribes, among other things, conspiracies to interfere with a governmental function by dishonest means. An agreement to defeat or interfere with the congressional intelligence oversight process by lying to or misleading the Congress, or by withholding information without statutory justification, could, under certain circumstances, amount to a criminal conspiracy. Under the circumstances we examined, however, we do not believe it likely that an offense occurred. In particular, there is no evidence that information was withheld from the Congress as a result of the concerted effort or agreement to interfere with the congressional oversight process. Even though there was an affirmative obligation to disclose the particular information not provided to Congress, and the incomplete briefings and reports provided to committee staffs over the years had the effect of misleading them and interfering with the oversight process, we do not believe that there is sufficient evidence to establish that this conduct was the result of any agreement.
For these reasons, the IOB has not found sufficient basis for a criminal referral to the Attorney General of this failure in disclosure to the Congress. The Department of Justice also considered this issue at the request of the Senate Select Committee on Intelligence (SSCI) and found that the facts posited by the SSCI did not constitute a sufficient basis upon which to premise a criminal prosecution. However, pursuant to Executive Order 12863, which governs the IOB, the Board has notified DOJ of its belief that in the past the CIA has violated Title 50 of the U.S. Code by failing to keep the Congress "fully and currently informed." The Board notes, however, that this violation was not criminal, that the CIA has taken remedial action, and that there appears to be no threat of a continuing violation. </text>
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