The Intelligence Community, Atrocities, and Accountability

(Editor’s note: This article is part of a joint symposium hosted by Just Security and Articles of War. The symposium addresses topics discussed at a workshop held at The George Washington University Law School concerning U.S. cooperation with the International Criminal Court’s Ukraine investigation. Laura Dickinson’s introductory post is available here.)

 Last Congress, in response to Russia’s full-scale invasion and acts of brutality within Ukraine, Representative Jason Crow (D-CO) led the drafting of a bipartisan bill with Representative Mike Waltz (R-FL) that mandates the creation of a Russian atrocities special coordinator within the intelligence community (IC) at the Office of the Director of National Intelligence (ODNI).

The provision passed unanimously through the highly partisan House Permanent Select Committee on Intelligence (HPSCI) and was enacted into law as part of the 2023 Intelligence Authorization Act. In addition, several other statutory provisions, codified in the 117th Congress, clearly demonstrate Congress’s bipartisan support to hold Russia accountable for its heinous acts in Ukraine. West Point Press published a summary of these provisions and in-depth analysis in a report entitled “U.S. Cooperation with the International Criminal Court on Investigation and Prosecution of Atrocities in Ukraine: Possibilities and Challenges.”

The provision that Rep. Crow spearheaded requires the ODNI to designate a senior official to serve as the Intelligence Community Coordinator for Russia Atrocities Accountability (ICCRAA). The ICCRAA’s duties include identifying and disseminating intelligence, identifying analytic needs and priorities, addressing collection gaps, and collaborating with other offices across the intelligence community. According to a recent ODNI position description, the ICCRAA “will play a key role leading the IC on the intelligence mission associated with holding actors accountable for potential atrocities in Ukraine” and “lead a team of program managers and targeters to identify and close gaps on atrocities.” Prior to creation of the ICCRAA, no office or individual in the IC were charged with the responsibility to synchronize and direct intelligence support for atrocity accountability in Ukraine.

As background, nine of the 18 intelligence agencies fall under the authority, direction, and control of the Department of Defense (DoD), including the NSA and NGA, which conduct the bulk of the nation’s signals and imagery intelligence collection and analysis. The Pentagon has been reticent to share atrocity-related intelligence with the International Criminal Court (ICC) due to concerns  over “reciprocity”; however, according to recent reports, President Biden has now overruled the DoD and ordered his administration to begin sharing evidence of alleged Russian war crimes in Ukraine with the ICC.

Congress has given the Executive branch many of the tools and authorities necessary to illuminate Russian atrocities in Ukraine and support accountability through allies, partners, and international bodies, such as the ICC.

However, now that the DoD’s intelligence components are reportedly cooperating, Congress should be bold and go further to institutionalize the IC’s role for a broader information and offensive “lawfare” campaign to draw attention to and discredit Russia, China, Iran, and the Taliban’s barbaric and inhumane activities. Instead, Congress is pursuing a disjointed and piecemeal approach through the establishment of a separate coordinator for PRC atrocities.  Specifically, section 401 of the Intelligence Authorization Act for Fiscal Year 2024 (IAA), if enacted, would create an IC coordinator “for accountability of atrocities of the People’s Republic of China.”

Success in an information campaign requires efforts to influence key populations to U.S. advantage while avoiding costly direct military confrontation. Therefore, Congress should empower the IC to exploit U.S. adversaries’ and competitors’ norm-busting human rights abuses (for example, China’s crimes against humanity and genocide against the Uyghurs and the Taliban and Iran’s torture and executions of members of minority groups) by better informing the public, both at home and abroad, of their repressive activities.

In fact, this IC role and mission should be seen as a key instrument and offensive capability used to draw negative attention to and isolate bad actors such as China and Russia. And when directed by the President, the IC could also play a useful role in monitoring the conduct of unsavory foreign partners, such as the Saudis, including their most egregious human rights abuses. Such politically sensitive information could be used during bilateral diplomatic engagements or more publicly to advance U.S. interests.

As noted in the report, several of the GW ICC workshop participants asserted that international tribunals, such as the ICC, could be useful “lawfare” partners and buttress the larger goal of deterring Russia and other adversaries from undertaking activities hostile to U.S. interests. The 2022 National Security Strategy (NSS) arguably embraces such an approach. It states that the United States “will hold states accountable for violations and abuses of human rights” and “rally the world to hold Russia accountable for the atrocities they have unleashed across Ukraine.” The NSS goes on to recommend the IC organizationally adapt to better address this new form of competition. As a result, both Congress and the White House are in accord that accountability is a worthy and strategically minded pursuit, and in our national interest.

Through additional legislation, Congress can help ensure that the IC will expose atrocities, enable justice, and reinforce international norms that serve as the bedrock for global peace and order. The President could, of course, direct the ODNI and IC to focus resources and effort on post-atrocity intelligence collection and analysis. However, intelligence support directed at atrocity accountability is still an emerging trade space for many IC components, and without congressional support, bureaucratic change will likely be too slow and insufficient to address the scale of the challenges.

Therefore, Congress should enact the following legislative enhancements.

Establish a Center for Global Justice at ODNI

The U.S. is at an inflection point even more consequential than the period after 9/11, when the threat of global terrorism loomed large. Today, the rules-based international order is at risk due to the rising threat of rights-violating authoritarian regimes and kleptocracies. In response to the 9/11 attacks, Congress codified the National Counterterrorism Center (NCTC). Likewise, Congress should go beyond the ad-hoc and temporary IC atrocity accountability coordinators and establish a Center for Global Justice at ODNI to expose these adversarial regimes. This center should be staffed with a full array of intelligence professionals, human rights specialists, and attorneys to lead and synchronize the IC’s efforts to illuminate humanitarian abuses and support justice.

This center should serve as the workhorse behind the Department of State’s Office of Global Criminal Justice, which formulates U.S. government policy on issues related to war crimes, crimes against humanity, and genocide and is the focal point on information sharing with international tribunals, such as the ICC.

Endorse the Collection of Atrocity Intelligence as a National Collection Priority

Congress should express to the White House that atrocity intelligence is a national collection priority that should be reflected in the President’s National Intelligence Priority Framework (NIPF). The NIPF provides “the mechanism for the development and communication of overarching national intelligence priorities and the evaluation of IC responsiveness and progress against those priorities.” Several of the GW Workshop participants agreed that the IC’s collection posture and focus on atrocities committed by U.S. adversaries will only be adequately prioritized if the President includes this topic as an NIPF priority over other threats, such as terrorism, that are competing for the same IC resources.

Avoid Enacting a Sunset Clause for the New Center

The 2023 IAA provision that established the ICCRAA at ODNI sunsets four years after enactment. However, it is clear from past conflicts that finding, apprehending, and convicting war criminals is a long-term endeavor that often continues on for many decades beyond the close of hostilities. The same should be anticipated for the Ukraine conflict. For this reason, Congress should institutionalize and make permanent a Center for Global Justice at ODNI.

Congress has demonstrated a strong bipartisan start to focus the IC on atrocity intelligence. It places ODNI in a role that is values-driven and strategically aligned in an era of competition with illiberal and rights violating regimes. In the upcoming IAA, Congress should build on the ICCRAA by establishing a permanent mission center purposed to uphold human rights, use information for U.S. advantage, and enable other parts of the U.S. government, international bodies, and foreign partners to hold those responsible accountable.

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Steven Katz (@steveLkatz) served as a defense and intelligence advisor to Congressman Jason Crow who sits on the House Intelligence and Foreign Affairs Committees. Previously, he served as an Army officer and intelligence professional at U.S. Special Operations Command. 

 The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Department of Defense, members of Congress, or the U.S. Government. The author would like to acknowledge that this article benefited from a Workshop, held on Feb. 3, 2023 at the George Washington University Law School, entitled “U.S. Cooperation with the International Criminal Court on Investigation and Prosecution of Atrocities in Ukraine: Possibilities and Challenges,” which brought together leading practitioners and experts from around the country.

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Photo credit: U.S. Air Force Airman 1st Class Alysa Calvarese